In the ARBITRATION between:

SALIPSWU obo NGQUNGWANA, S
(Applicant)

and

PORT ELIZABETH TVET COLLEGE
(1st Respondent)

DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(2nd Respondent)

Applicant’s representative: In person
Applicant’s address: 11 Sidumo Street
Kwa-Dwasi
Port Elizabeth
6201
Telephone: 083 950 9180
Telefax:
E-mail: mrayan489@gmail.com

Respondent’s representative: Mr. D Baartzes
Respondent’s address: Port Elizabeth TVET College
Russel Road
Port Elizabeth

Telephone: 041 509 6060; 081 320 7375; 082 416 8377
Telefax: 086 263 5462
E-mail: dorianb@pec.edu.za ; chantelj@pec.edu.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute concerns an alleged unfair labour practice relating to benefits and this is the award.

2. The matter ended up at arbitration, which took place in Port Elizabeth on 30 January 2018; 9 April 2018; 5 June 2018 and on 27 August 2018.

3. The applicant, Mr. Sangolinye Ngqungwana, was present and conducted his own case. Mr. Baartzes, on the other hand, represented the 1st respondent, the Port Elizabeth TVET College (“the College”). The 2nd respondent, the Department of Higher Education and Training (“the DHET”) was not present or represented during the whole duration of these proceedings.

4. The proceedings were digitally recorded and handwritten notes were also kept.

PRELIMINARY ISSUES

Ruling on postponement

5. The proceedings of 30 January 2018 were postponed after it became apparent that the applicant was not duly notified of the said proceedings. The College did not oppose the postponement. After considering the matter I granted postponement and accordingly issued a postponement ruling dated 30 January 2018.

Ruling on admissibility of audio recording obtained without prior consent

6. I issued a ruling dated 5 July 2018 in favour of the applicant after the College opposed the admissibility of an audio recording that was made without its consent. The reasons for my decision are contained in the ruling previously issued.

ISSUE TO BE DETERMINED

7. I am required to determine whether or not the College committed an unfair labour practice for its decision to pay the applicant for three hours per week instead of five hours per week for work actually performed as per the applicant’s secondary contract for the period 18 January 2016 to 29 February 2016.

BACKGROUND TO THE DISPUTE

8. The applicant is employed as a full-time post level one (1) lecturer by the DHET. In this regard he entered into a primary contract with the DHET known as the National Certificate (Vocational) (“NC(V)”).

9. The applicant subsequently entered into a temporary contract for the appointment of part-time lecturing staff (“secondary contract”) with the College, which he signed on 29 February 2016. The secondary contract provided for additional work performed in relation to the primary contract and states inter alia that: “…You will only be paid for the number of hours actually worked…”

10. The applicant’s claim form attached to his secondary contract referred to above reflected an amount of R10 098.00 due to him for additional work rendered during the period 18 January 2016 to 29 February 2016. According to the applicant the amount of R10 098.00 corresponded with the maximum five (5) hours per week that he is entitled to.

11. The College disputed that the applicant actually worked five (5) hours per week as per the secondary contract. In this regard the College submitted that the applicant only worked three (3) hours per week for the period referred to above. The parties attempted to resolve the grievance submitted by the applicant, but it was not successful.

12. The applicant is seeking as relief that he must be paid overtime for five hours per week for teaching the additional classes for the period referred to above.

SURVEY OF EVIDENCE AND ARGUMENT

13. I do not intend to relate verbatim evidence of the witnesses but merely to summarise the substance of their evidence in so far as it is relevant to the claim.

14. Evidence bundles for both parties have been considered with oral evidence tendered. Written closing arguments were also submitted by both parties and have been considered.

Evidence on behalf of the applicant

15. Mr. Sangolinye Ngqungwana, the applicant testified to the following effect:

15.1 He works as a post level one (1) lecturer. In terms of his primary contract he is permanently employed since 2014. There was an agreement with one Mr. Koen that he would be paid for five (5) hours per week for the additional workload. He stated that he actually worked five (5) hours per week for the period 18 January 2016 to 29 February 2016. In this regard he referred to page 23 of the applicant’s bundle that stated a total of five (5) hours per week. He indicated that page 23 must be read with page 15 of the applicant’s bundle. He said that the insertion made in handwriting on page 15 was made after he signed the secondary contract. He expected to be paid by March 2016.

15.2 The College wanted to change the secondary contract after he had signed it but he refused. The Principal of the College called a meeting with Messrs. Van Der Merwe, Mackenzie and Ms. Figg. According to him, Mr. Van der Merwe said that he never told the applicant that he must first utilise the 25 hours per week contact time per week before the additional periods will be considered. Mr. Van der Merwe said that it was going to cause an audit query, because NC(V) lecturers are supposed to teach for 25 hours per week.

15.3 He then investigated the issue of hours to be worked and was guided by Annexure F of Collective Agreement 1 of 2013 (“the Collective Agreement”) dealing with the workload of college based educators (Further Education and Training). In this regard the Collective Agreement states that the actual contact hours for post level 1 lecturers should be between 22.5 hours and 25 hours per week. According to him this would not have caused an audit query because the Collective Agreement refers to 22.5 hours. No progress was made in terms of the internal grievance process.

15.4 Under cross-examination he said that he only became aware of the actual contact hours for the NC(V) programme when he was confronted with the current dispute. He confirmed that he only signed the secondary contract on 29 February 2016, which was the last day of the said contract. He was unable to comment on whether by only signing the contract on the last day constituted an anomaly, because he had asked Mr. Van der Merwe about the contract and he was told that he would receive the contract.

15.5 Similarly, he was unable to comment whether it was an anomaly for two lecturers in terms of the timetable to teach the same group of students at the same time and in the same venue. He said that the College is responsible for the drafting of the timetables and the lecturers are responsible for teaching the periods as allocated on the timetables. He did not agree with the version of the College that the practical period on Mondays only counted as one period. According to him he taught students from 8h55 until 11h35, which translated into three actual, contact hours. He further indicated that he was not claiming for the two periods that were given to lecturer Maduna, because these periods accounted for two different groups of students. He disagreed with the College’s version that he only worked for three hours per week and not five hours.

15.6 In respect of the transcript the applicant was unable to explain the several grammatical errors as highlighted by the College’s representative. The applicant stated that not all NC(V) lecturers are teaching a maximum of 25 hours per week. He confirmed that the 25 hours teaching time under the NC(V) programme are made up of five subjects/groups times five days per week totaling 25 hours contact time per week. He also confirmed that NC(V) is a year programme and is not trimester-based.

15.7 He confirmed in response to clarity sought by the Commissioner that he was teaching Re2-EN for three practical periods (2, 3 and 4) on Mondays and that his original periods 3 and 4 were allocated to lecturer Maduna who was teaching E12-EG/E12-EH and E12-EE/E12-EF on Mondays.

16. Mr. Malibongwe Ngqungwana testified to the following effect:

16.1. He is employed by the DHET as a lecturer at the Port Elizabeth Iqhayiya College since April 2014. He is responsible for teaching the National Accredited Technical Education Diploma (“NATED”) programme. He teaches 22.5 hours (primary contract) and a maximum of 60 hours part-time (secondary contract). He confirmed that he works 22.5 hours per week in relation to his primary contract and not 25 hours. According to him lecturers teaching the NVC programme have to teach more hours than those teaching the NATED programme.
16.2. Under cross-examination he said that he is teaching three periods per day and is expected to teach 22.5 hours per week under the NATED programme. He confirmed that the NATED programme is trimester based. He said that he never taught the NC(V) programme. He confirmed that the maximum of 60 hours were in respect of part-time teaching.

Argument

17. The College failed to prove that the applicant was consulted in terms of paragraph 2.2 of Collective Agreement no 1 of 2013 as reflected on page 43 of the applicant’s bundle.

18. The applicant, with reference to the Perjury Act, section (4)(1), submitted that Mr. Koen was not true to his oath and that the arbitrator should indicate the way forward regarding Mr. Koen’s conflicting statements under oath.

Evidence on behalf of the College

19. Mr. Chris Van der Merwe, testified to the following effect:

19.1. He has been Head of Department in the Engineering division for 25 years and that the applicant is known to him for approximately 5 years.

19.2. He explained that the normal hours for NC(V) staff are 25 contact hours plus 10 administrative hours totaling 35 hours per week which is applicable to the applicant.

19.3. With regards to the timetable as reflected on page 2 of the College’s bundle, he explained that during November of each academic year, the respondent obtains its programme quality mix (PQM) or student numbers in order to establish the need for lecturers. The 25 hours contact time per week equates to 5 groups of students being taught over 5 periods per week. One period is approximately an hour.

19.4. One of the lecturers resigned and was allowed to leave without working the notice period, which resulted in an urgent need for a lecturer to perform the lecturer’s duties on a part-time basis. The applicant was approached, because his timetable for practical reasons was the easiest to accommodate the classes of the lecturer who had resigned.

19.5. After the applicant agreed to assist with the part-time lecturing his timetable was accordingly revised as reflected on page 3 of the College’s bundle. In this regard, the applicant’s original classes, i.e. EI2-EG/EI2-EH and EI2-EE/EI2EF that were spread over periods 3 and 4 on Mondays were taken away from the applicant and allocated to lecturer Maduna as reflected on page 1 of the College’s bundle.

19.6. The applicant was then allocated three additional periods, i.e. Re2-EN that were spread over periods 2, 3 and 4 on Mondays. The two periods allocated to lecturer Maduna referred to above were deducted from the three additional periods under Re2-EN. The applicant was further allocated two additional periods, i.e. one being the 8 period on Mondays and the other being the 8 period on Wednesdays. Overall, the applicant was allocated three additional periods per week and not five.

19.7. The applicant’s contract stated that he would be paid for a maximum of five (5) hours per week at R297.00 per week. He indicated that the insertion in handwriting of ‘3 hours per week’ was made after the applicant had signed the contract. He highlighted the conditions applicable to the applicant’s appointment in terms of his contract as reflected on page 15 of the applicant’s bundle and in particular point 1 that states that: “…You will only be paid for the number of hours actually worked…”

19.8. Under cross-examination he said that he assumed that the applicant read the contract before he signed it. However when it was put to him that by the applicant that he only received and signed the contract on the last day of the contract; he was unable to explain why the applicant only received the contract at that stage. He could also not confirm whether the applicant was consulted in terms of the 25 contact hours per week to be utilised before the actual hours for part-time duties were calculated.

19.9. He said that he assumed that the applicant was consulted and told about the utilisation of the hours as reflected in his revised timetable. According to him the applicant should have complained when the two periods were taken away from him resulting in him only working three additional hours per week. He did not dispute the version that the applicant enquired about the secondary contract before he started teaching and which he eventually received on the last day of the contract period.

19.10. According to him the Finance Section disputed the claim submitted by the applicant, because he had not actually worked five hours per week as per the conditions of his secondary contract. In this regard, the applicant must first utilised the 25 hours in terms of his primary contract and thereafter he would be paid for the hours actually worked. In terms of the applicant’s revised timetabled he was allocated 28 periods equating to 28 hours per week.

19.11. In terms of the timetable he confirmed that the original periods 3 and 4 of the applicant on Mondays were allocated to lecturer Maduna. The additional periods (Re2-EN) amounted to five (5) periods which if added to his normal periods in terms of his primary contract was totaling 28 hours. In other words the applicant worked 28 hours per week instead of his normal 25 hours per week. He explained that lecturers under the NC(V) programme work 25 hours per week and those under the NATED programme work 22.5 hours.

19.12. He explained that Mr. Malibongwe Ngqungwana actually worked 75 hours part-time, but was only paid the maximum of 60 hours as per the provision of his contract. He indicated that the NATED programme is trimester based and not annually as is the case with the NC(V) programme.

20. Mr. Kobus Koen, testified to the following effect:

20.1 He is an educational specialist responsible for the setting, monitoring and implementation of all timetables. He indicated that the timetables changed, because of the resignation of one of the lecturers. He was instructed to enquire among the remaining lecturers if anyone was prepared to take over the affected classes and if yes to inform the affected lecturer that s/he would be “remunerated accordingly”.

20.2 He explained that the NC(V) programme consists of 25 hours contact time per week which is calculated as follows: 5 groups of students x 5 hours per group equaling 25 hours per week. He explained that once the timetables are completed it is handed out to the responsible lecturers for verification and amendments where necessary.

20.3 He stated that lecturers responsible for the NC(V) programme are teaching 25 hours per week and not 22.5 hours as is the case for lecturers under the NATED programme. He further indicated that the NATED programme is a trimester course whilst the NC(V) programme is a year course. The applicant is already teaching 25 hours per week. He submitted that not a single lecturer responsible for the NC(V) programme had in the past complained about teaching 25 hours per week.

20.4 He explained that two periods, i.e. periods 3 and 4 on Mondays were taken away from the applicant and allocated to lecturer Maduna. The applicant was then allocated periods 2 and 8 on Mondays and period 8 on Wednesdays as additional periods.

20.5 He stated that he never made any promises to the applicant that he would be paid five hours per week in addition to his primary contract. He indicated that he only told the applicant that he would be paid according to the timetable.

20.6 Under cross-examination he denied mentioning the issue of being paid for five hours to the applicant. However, after the introduction of the transcript from the audio recording he changed his version and confirmed that in terms of the transcript the 25 hours was for the NC(V) programme and that “it was wrong” for the College to pay the applicant only for three hours. He said that he only conveyed to the applicant what was told to him by management, i.e. he had no authority to make decisions.

20.7 In re-examination he confirmed that NC(V) lecturers teach for 25 hours per week. He confirmed his statement as reflected on page 10 of the transcript of the audio recording referred to above.

Argument

21. The applicant entered into a part-time contract with the College and not overtime in terms of its overtime policy.

22. A generic part-time employment contract was utilised by the College to remunerate the applicant in exchange for his three (3) administration periods as reflected on the revised timetable.

ANALYSIS OF EVIDENCE AND ARGUMENT

23. Section 186(2)(a) of the LRA provides that “unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee…”

24. An applicant who alleges that an employer has been guilty of an unfair labour practice (ULP) bears the burden of proving on a balance of probabilities that the employer is guilty of “unfair conduct”.

25. The applicant’s claim for additional remuneration as a result of part-time work arose ex contractu, i.e. in terms of the secondary contract between the applicant and the College.

26. It must be noted that the applicant’s reference to the payment of overtime must not be seen as a claim for overtime in the traditional sense, but within the context of the secondary contract between the applicant and the College related to part-time work. It is trite law that Commissioners are not bound by the manner which applicants describe their disputes, but by determining the true nature of the dispute.

27. The crux of the dispute lies in the decision of the College to pay the applicant only for three (3) hours actual teaching time for the additional classes; instead of five (5) as claimed by the applicant. The secondary contract provided that he would be paid for a maximum of five (5) hours teaching time per week at R 297.00 per hour for the period 18 January 2016 to 29 February 2016. Important to note is that such payment was on condition that he would be paid only for actual hours worked.

28. I am satisfied that the College had justifiable reasons for its decision not to pay the applicant for the five (5) hours per week in relation to the additional classes that he was teaching in terms of his secondary contract. I say so, for the following reasons:

28.1 The applicant, a full-time NC(V) lecturer, is employed and remunerated by the DHET in terms of his primary contract. The College’s version is more probable that all NC(V) lecturers’ primary contracts consist of 35 hours per week of which 25 hours per week are for teaching time. Therefore, it is safe to conclude that part-time work rendered must be additional to the 25 hours normal teaching time. This position is consolidated in terms of NOTE 3 of Collective Agreement 1 of 2013 that provides that the actual contact hours (primary contract) exclude contact hours in terms of a part-time appointment of full-time lecturers.

28.2 It is undisputed that the applicant’s revised timetable reflected 28 hours actual teaching time per week. In order to operationalize his revised timetable the respondent took two periods away and allocated it to another lecturer, which left the applicant with 23 hours normal teaching time per week. The respondent then added the additional five classes, which resulted in 28 hours actual teaching time, i.e. three hours per week in addition to his normal 25 hours normal teaching time per week. In other words the applicant is contractually entitled to three (3) hours per week for the actual additional hours he worked in terms of his secondary contract.

28.3 Mr. Malibongwe Ngqungwana confirmed in his testimony that he received payment only in respect of actual hours worked provided it was not more than his maximum hours stipulated in his part-time contract and if was less than the maximum hours the College would pay according to the actual hours worked.

28.4 The applicant, having taught 25 hours normal teaching time per week, was entitled to enter into a secondary contract with the College, because he met the threshold to be appointed part-time as provided for in terms of paragraph 4 of Collective Agreement no 1 of 2013, i.e. a minimum of 22.5 hours teaching time per week. In other words, full time lecturers on post level one with less than 22.5 teaching hours per week are not eligible to be appointed part-time.

29. Turning to the applicant’s argument, supported by the audio recording, that he had an agreement with Mr. Koen that he would be paid for the five additional classes irrespective of the aforementioned concessions. According to the applicant, the said agreement was the reason why he accepted the revised timetable and signed the secondary contract. He was also not told that he first had to finish 25 hours normal teaching per week before the additional hours would be added.

30. The agreement between the applicant and Mr. Koen or the promise that was made by Mr. Koen had no impact on the signed secondary contract read with the revised timetable of the applicant for the reasons hereunder:

30.1 Mr. Koen, by his own testimony, had no authority to conclude agreements with lecturers regarding part-time appointments. He merely acted as conveyer belt between management and the lecturers, including the applicant regarding the additional classes. However, his conduct and interactions with the applicant has seriously compromised the trust relationship with the College as well the applicant, i.e. the College trusted him to convey its decision to the affected lecturers, including the applicant, regarding the additional classes without any distortions or inaccuracies. On the other hand the applicant trusted him to be honest regarding the conditions attached to the additional classes. He has betrayed both parties when taking into consideration the transcript of the audio recording as evident on page 10 of the transcript of the audio recording.

31. Mr. Koen misrepresented, whether intentionally or unintentionally, the position of the College, as envisaged in both the revised timetable and the secondary contract, when he interacted with the applicant. In this regard, Mr. Koen should be held personally liable for his conduct by the College.

32. The Council does not have jurisdiction to deal with claims of perjury other than to pronounce on the credibility of the witnesses.

33. All the witnesses, except for Mr. Koen, were credible and reliable witnesses. Their evidence was not disturbed in cross-examination. They made concessions where these were called-for. Their evidence was free of serious contradiction and was corroborated by the documentary record.

34. Mr. Koen destroyed his own credibility by being dishonest, i.e. he maintained not having spoken to the applicant regarding the payment of working hours, but gave in under cross-examination after the audio recording was admitted as evidence. Accordingly, I have decided to reject the evidence of Mr. Koen insofar as it contradicts with the transcript of the audio recording.

35. The other issues raised by the applicant in terms of lack of consultation as provided for in paragraphs 2.2 and 2.3 of Collective Agreement 1 of 2013 are peripheral to the main dispute and have no material affect on the actual hours that he worked in terms of his secondary contract.

36. The applicant’s version is more probable that he was not told to first complete 25 hours normal teaching time, before the additional hours would be added. Even so, the applicant should have at least questioned the 28 hours actual teaching time per week as reflected on the revised timetable. I am not convinced that the applicant could not have been aware of the number of normal teaching time per week he was teaching at the time of accepting the revised timetable.

37. Having found as above, I find that the applicant has not succeeded in proving the existence of an unfair labour practice in relation to the decision of the College to only pay for three hours instead of five hours per week for additional part-time services rendered by the applicant in terms of his secondary contract for the period 18 January 2016 to 29 February 2016.

AWARD

In the premises I make the following award:

38. The 1st respondent, the Port Elizabeth TVET College, did not commit an unfair labour practice as envisaged in section 186(2)(a) of the LRA.

39. The applicant’s claim to be paid for five (5) hours per week additional teaching time amounting to R 10 098.00 in terms of his secondary contract is dismissed.

40. There is no order as to costs.

Name: Richard Pretorius
(ELRC) Arbitrator