IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY VIA THE MS TEAMS PLATFORM
Case Number ELRC1313-24/25NC

In the matter between:

SUID AFRIKAANSE ONDERWYS UNIE (SAOU) ON BEHALF OF
K. OLYN
Applicant

and

DEPARTMENT OF EDUCATION – NORTHERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 The arbitration was conducted on the MS Teams virtual platform on 9 April 2025.2 The applicant was represented by Ms. A. Clarke, a fulltime shop steward of the Suid Afrikaanse Onderwys Unie (SAOU). The respondent was represented by Ms. L.Tulani-Jara, a labour relations officer.
THE ISSUE IN DISPUTE
3 I must decide whether on the interpretation and application of collective agreement 8 of 2002 the respondent must pay the applicant an acting allowance.

THE BACKGROUND TO THE DISPUTE
4 The applicant, a PL1 educator, at the Franki Biggs Intermediate School in Upington (the school) had acted in a departmental head position from 1 October 2024 to 31 December 2024 and had not been remunerated for having so acted.

5 The applicant contended that she ought to be remunerated for having acted in the position.

6 The respondent contended that the applicant ought not to be remunerated for having acted because she did not meet the requirements for the position as she did not meet the profile of the post.

7 In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

8 The parties, after agreeing to common cause facts and submitting documentary evidence, elected not to call any witnesses and agreed to present their closing arguments on such common cause facts and the documentary evidence submitted.

9 It was common cause that the applicant is a PL1 educator at the school in Upington and that she earns a salary of R37 5543.00 per annum.

10 The School Governing Body and the school had recommended that the applicant act in the PL2 position of head of department (the position) from 1 October 2024 to 31 December 2024 and that she had in fact acted in the position in that period.

11 It was common cause that the applicant had acted in the position but had not been paid for so acting.

12 The applicant had been given a letter in terms of which the recommendation had been declined. The letter is dated 17 October 2024 and signed by the Acting Chief Director: HR Management and Development on 12 December 2024.

13 It is in dispute that the applicant received the letter on 8 April 2025, the day before the arbitration proceedings.

The argument for the applicant:
14 With reference to P1 of its bundle of documents, a letter dated 29 August 2023, the applicant had acted in the same position as the position applied for now for 2022 to January 2023.

15 This while her qualifications were the same as present.

16 Her academic record 2006 at page 5 of her bundle of documents shows she has social science as a subject.

17 The applicant had therefore acted with these qualifications and accordingly had an expectation that she would be appointed to act as previously.

18 The applicant had acted in a position she alleges is the same in 2022/2023 and the appointment letter on that occasion had been received by the applicant in August 2023, well after the applicant had already started to act in the position.

The argument for the respondent:
19 The department is not responsible for the payment of an acting allowance to the applicant because when she started acting she did not have the letter of approval to so act.

20 Furthermore, according to the letter sent by the department declining the appointment the applicant does not meet the minimum requirements to act in the position. She is not qualified to teach social sciences.

21 The post profile at Page 3 of the respondent’s bundle of documents shows the person requires social science which the applicant does not have in her transcript.

22 At E8 of the respondent’s bundle of documents the applicant’s transcript shows that she finished her degree in 2010 and that she can teach Afrikaans as a language, economics and computer literacy. It does not say that she can teach social science.

23 While there is a reference to social science in her transcript in 2006 it is not there as a major in 2010.

24 The applicant therefore does not meet the post profile as she cannot teach social science.

25 Another educator, Markus, who had acted in the position from April to June 2024 had been declined as she did not have social science at tertiary level. This is according to her letter of disapproval.

26 At the time the applicant had been in the position the incumbent, Mr. Mathys, had resigned. In terms of clause 5 the acting position is available only in circumstances of the incumbent having been on maternity, or sick leave or study leave or had been suspended or seconded.

27 There is no evidence of the applicant’s having acted in the same position previously.

ANALYSIS OF EVIDENCE AND ARGUMENT
28 It is clear from the evidence presented at this arbitration that this matter deals with the appointment of educators to act in a particular position in specified circumstances and to be paid an acting allowance therefor.

29 In the matter before me it is common cause that the applicant had acted in the position of departmental head and that this position is at post level 2.

30 The evidence shows further that written approval to act in a position must be obtained in order that the right to act may so be validated.

31 I must point out, and as argued by the respondent, that there is no evidence before me of that position being the same as that which is the subject matter of this arbitration.

32 In the absence of such proof the applicant cannot rely on that argument to the extent that she does i.e. to corroborate her contention that her qualifications were adequate then and ought to be now.

33 For the same reason the applicant cannot claim that she had a reasonable expectation of being appointed to act and to be paid the acting allowance.

34 To reiterate, there is no evidence of the position acted in previously is the same as that acted in from October 2024 to 31 December 2024.

35 Furthermore, the evidence shows that the applicant had acted in the position when it had become vacant due to the incumbent, Mr. Mathys, having resigned.

36 It is clear from a reading of Collective Agreement 8 of 2002 at annexure A clause 5, that an acting allowance will be paid only to an educator who acts:
1.In such a post where the permanent incumbent is absent due to the following:
(a) maternity
(b). sick leave
(c). study leave
(d). suspension
(e). secondment.

37 In the matter before me the evidence shows that the incumbent had resigned thus leaving the post permanently vacant.

38 For this reason alone, the applicant cannot claim to have acted in the position for the purposes of claiming an acting allowance as provided for in this collective agreement.

39 It is clear too that to act in a position in terms of this Collective Agreement the educator must be in receipt of a written approval from the department to so act.
40 The fact that the applicant does not have such written approval also disqualifies her from claiming an acting allowance for the purposes of this Collective Agreement.

41 It is to be noted that the applicant contended that she had a legitimate expectation as she had acted in the very post in 2023 and with the same qualifications and therefore ought to be paid the acting allowance.

42 There is however no evidence before me from which it can be concluded that the applicant had in fact acted in the same position. The applicant therefore cannot claim to have had any expectation that she be paid the acting allowance for lack of evidence that the previous circumstance of acting is the same as before this arbitration.

43 In the circumstances and having considered all the evidence and argument presented at this arbitration, I find that on an interpretation and application of Collective Agreement 8 of 2002 the applicant cannot claim an acting allowance.

AWARD
44 On the interpretation and application of Collective Agreement 8 of 2002, there is no acting allowance that the respondent must pay the applicant.

COMMISSIONER: L. MARTIN
24 APRIL 2025