In the matter between

MANAMELA SM AND 18 OTHRES Applicants

And

LIMPOPO DEPARTMENT OF EDUCATION Respondent

ARBITRATION AWARD

1. Details of hearing and representation

1.1 This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act).
1.2 The hearings took place at the Limpopo Department of Education, Voorwarts Building, Polokwane, Limpopo Province, on 09 September 2019 and 01 November 2019 at 10:00AM.
1.3 The applicants, Manamela SM and 18 others (refer to the attached list) were represented by Hlahla H.S from Hlahla Incorporate, while the respondent, Limpopo Department of Education was represented by Makhema R, its official.
1.4 The proceedings were digitally voice recorded and conducted in English.

2. Issues to be decided

2.1 The dispute was about the applicants’ alleged unfair labour practice related to benefits.
2.2 I must decide whether or not the applicants were unfairly excluded from the Teacher Incentive Scheme.
2.3 To determine an appropriate relief, if it is found that the applicants were unfairly excluded from the Teacher Incentive Scheme.

3. Background to the dispute and common cause issues.

3.1 The applicants have been employed by the respondent in various schools which fall under the same Circuit Offices, Hlogotlou.
3.2 The Teacher Incentive Scheme is regulated by the Government Gazette No: 30678 dated 18 January 2007, together with Personnel Administration Measures (PAM).
3.3 During the commencement of this arbitration hearing the respondent raised point in limine in that the applicants were seeking to be paid the teacher incentives effective from its inception in 2008 and the Commissioner does not have the powers to order the respondent that, since the dispute was referred in October 2018. The applicants responded by indicating that the issues raised by the respondent should be reserved for closing arguments at the end of the arbitration hearing. The applicants wanted to be paid effective from 2008, because the teacher incentives were introduced then, 2008. My ruling was that the issue of the effective date of the payment of the teacher incentives could not be entertained before the end of the arbitration hearing. Actually I agreed with the applicants’ representative that the issue raised as point in limine was not point in limine and as such it should be argued in the closing arguments. Then the arbitration hearing continued.

4. Survey of the Applicants’ evidence and argument.

The applicants handed in a bundle of documents marked as BUNDLE A. Two witnesses testified for the applicants. Stephen Matlou Manamela testified under oath and in English that:

4.1 He has been working as the Principal of Tjetje Technical High School since 2010. The dispute rest on the Teacher Incentive policy, which was penned by the Minister of Education. The policy provides that a teacher has to have an REQV 13 (3 year Degree) or higher in order to qualify for the teacher incentive. There was no teacher with less than REQV 13 qualification in their schools. The Teacher Incentive policy was implemented in 2008 and PAM in 2016. There was no any other policy, except the Teacher Incentive policy which determine whether or not an Educator qualify for the Teacher Incentive. He took it that the Minister has come up with the policy and the Head of the Provincial Department (HOD) has to implement it. The criteria that the HOD could come up with should not change from the one set by the National Department. Item 8.1 (a) of the policy gave the HOD two mandates, which were to identify the town and determine the distance from the school to that town. The policy was silent on how the HOD should determine the town. The distance should be determined by road by means of GPS Technology. Everybody could determine the distance by GPS Technology. Schools were ranked in terms of Quintiles 1-5. The schools which qualify most were the quintiles 1 and 2 and there is a thin line between the two in terms of poverty. He believe that his school and the others involved here are in a radius of 5km and his school was the last, but furthest. Globlersdal was the nearest town. The distance as per GPS Technology from his school to Globlersdal is 68km and for the other schools is 66km. There were other schools which were getting the Teacher Incentive which are 50km to Globlersdal. It was logical to him how they were not getting the incentive, if those schools closer to Globlersdal were getting it. The other requirement for qualifying for the incentive was the No-fee schools and all their schools were No-fee schools.
Under cross examination Manamela testified that they qualify because they feel they meet the requirements. The aim of the Teacher Incentive policy was to incentivize teachers working in the rural areas. The policy said the HOD should determine the distance to the nearest town and he thought they qualify because of the distance to town. The HOD was responsible for determining the distance and not the criteria. There was a guideline on how the policy should be implemented that the HOD had to follow. The HOD had to come up with the criteria and that criteria should be in line with the policy. The criteria of the HOD was not in line with the policy. He was not comfortable with the circular of the HOD. His school, Tjetje Technical High’s weighted distance was 123.5 and as per that weighted distance, he did not qualify for the incentive.

The second witness of the applicants was Zondo Sipho Sonnyboy. Zondo Sipho Sonnyboy testified under oath and in English that;

4.2 He is attached to Mathakge Combined School as the Principal since 04 February 2018. All the seven (7) schools represented in this arbitration hearing were from the same village, Setlakoane and closed to each other. The policy was applicable to all the teachers who were at REQV 13 (Matric + 3 years). All the 18 of them qualify because they have REQV 13 and higher. There were two paragraphs that they need to adhere to in order to qualify for those incentive. They fell under Remoteness of the school. The policy provides that, the HOD should identify the town and determine the distance by road from each school to the nearest town. Distance should be determined by means of GPS Technology and the HOD had already determined the distance to the nearest town of all the schools involved in this matter. All their schools were ranked Quintiles 1 and 2 and as such he felt that they qualify for the incentive. They all came from Quintile 1 and 2. He felt they again qualify because of their schools which were No-fee schools. Away from them, there were schools at their fore front, closest to town, Globlersdal which were receiving the incentive.
Under cross examination, Zondo testified that the role of the Minister was to monitor the implementation of the Teacher Incentive Scheme. The HOD failed to implement the policy. He does not recognize the HOD’s circulars, but only the national policy. The circulars were written in order to disadvantage them. He does not agree with the weighted distance of 140km, because it was not in the policy.

5 Survey of the Respondent’s evidence and argument.

The respondent handed in bundle of documents which I marked BUNDLE B. One witness testified for the respondent. Annet Fielding testified under oath and in English that:

5.1 She is working under Sub-Directorate Conditions of Service, dealing with conditions of service for employees appointed in terms of the Public Service Act and Employment of Educators Act . There was a rate available as well as certain criteria which indicated that the Educator must be in a substantive post and have REQV 13. The purpose of circular 29 of 2017 was to regularize the Government Gazette . The Gazette had criteria of which it was necessary to explain how the respondent would implement it. Circular 71 of 2017 was issued and its purpose was to clarify and indicate how the weighted distance was determined. The circular was placing emphasis that the school must be Quintile 1 and have a weighted distance of 140km. The HOD did not deviate from the Gazette, but followed it. There was no amendment by the HOD on the policy by issuing the circulars. All the schools represented in this matter do not qualify for the incentive, because they fall off the circular provisions and schools should be Quintile 1 and not 2. There was no new criteria which was set by the HOD. The HOD was the implementer of the Gazette and the Minister was the monitor. She did not see any unfair exclusion of the applicants, because their schools were Quintile 2.
During cross-examination, Fielding testified that the purpose of the circulars was to explain the policy. Having REQV 13 does not literally mean you qualify, but you must be fully qualified. The HOD was not allowed to amend the policy. The policy spoke of Quintiles 1 and 2, but the policy spoke of only quintile 1. Weighted distance was a prescript from the National Department of Education and therefore, she (witness) could not testify on that. The intention of the policy was not to pay all the Educators. The respondent was still paying Quintile 1 the Teacher Incentive and not yet Quintile 2.

6 Analysis of the evidence and arguments

6.1 In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The applicants referred an unfair labour practice dispute related to benefits. They alleged that they were unfairly excluded from the Teacher Incentive Scheme of the respondent.
6.2 The applicants led evidence to the effect that they qualified for the payment of Teacher Incentives. In terms of the understanding of the applicants, every educator who possess REQV13 and teaching in quintiles 1 and 2 schools qualify for the incentives. The respondent unfairly excluded them from receiving these incentives. They alleged that the respondent has amend the national policy on Teacher Incentive Scheme and brought in new criteria, which were not in line with the national policy. Their schools were 66km and 68km radius to the nearest town, Groblersdal, while other schools which were closer to the nearest town were getting these incentives. The applicants do not recognize the two circulars in relation to the teacher incentives payment and the determination of weighted distance, issued by the respondent in February 2017 and April 2017 respectively. According to the applicants, the two circulars excluded them from benefitting from the incentives.
6.3 The respondent disputed the evidence of the applicants by testifying that the applicants did not qualify for Teacher Incentives. For one to qualify, you need to be teaching in quintile 1 school and the distance from your school to the nearest town should be 140km radius. The respondent alleged that it did not amend the national policy on Teacher Incentives. What it did, was to issue the two circulars explaining how the national policy on Teacher Incentives should be implemented. The HOD, through the two circulars came up with the criteria of identifying the town and the weighted distance of 140km.
6.4 It was deduced from the evidence of the parties that, the bone of contention is the interpretation of the national policy on Teacher Incentive Scheme and the two circulars issued by the respondent in 2017 (circulars 29 and 71 of 2017). The only witness of the respondent has during cross examination indicated that she could not testify on the national policy, since she was not the one who wrote it. It would therefore, appropriate for me to give my understanding of the national policy, vis-a-vis the two circulars. The applicants have the understanding that, the national policy should be implemented by the respondent as it is, with no additions or amendments. The respondent’s understanding on the other hand is that, circulars have to be issued wherein implementation criteria are explained. However, the applicants conceded that the national policy directed the HOD to identify the town and determine the distance by means of GPS Technology from the school to the nearest town. Item 8.1 of the policy states that “The selection of schools where all the posts would be eligible for incentives would be determined in the following order:
(a) Remoteness of the school, or how far the school is situated from the nearest town. Such a town should have all the basic facilities and services that a teacher would need to have access to. The Head of Department should identify towns in, near or bordering the province that comply with these requirements and determine the distance by road from each school to the nearest town.
(b) Poverty. All schools are already ranked in terms of poverty criteria and divided into quintiles, quintile 1 being the 20% poorest schools and quintile 2 the next poorest 20%”. It is correct that the policy on teacher incentives came from the National Department of Basic Education. However, the policy directed the HOD to the order in which the qualifying schools should be selected. The first order was that of the remoteness of the school, followed by poverty, No-fee schools and lastly combinations of other factors that are impacting negatively on the recruitment of teachers. The HOD of the respondent in this matter selected two orders, which was remoteness of the school and poverty. Subsequent to that, the HOD issued two circulars wherein posts in quintile 1 schools and weighted distance of 140km and more were identified to the qualifying for the teacher incentives. These are the two circulars which the applicants rejected and testified that they (circulars) amend the policy and not in line with it (policy). It is therefore, my belief that the circulars were in line with the provisions of item 8.1 (a) and (b) of the policy. The policy directed the HOD to determine the distance by road and Personnel Administrative Measures (PAM) provided that GPS Technology should be used to determine this distance from the school to the nearest town. The respondent determined a distance of 140km from school to the nearest town of Globlersdal. It was going to be difficult for the HOD to implement the national policy as it is, if there was no distance determined. The HOD had to issue those circulars as directed by the national policy. In terms of those circulars, the applicants do not qualify for Teacher Incentives. In their evidence in chief, the applicants testified that other schools closer to the nearest town, Globlersdal were receiving the incentives. The fact that other schools closer to the nearest town were receiving the incentives does not qualifies the applicants to receive same. The qualifying factors for teacher incentives are the provisions of the policy.
6.5 In this unfair labour practice dispute, the burden of prove rest with the applicants. The applicants had to prove that the respondent has unfairly excluded them from the Teacher Incentives Scheme. It is therefore my finding that the applicants have on the balance of probabilities failed to prove that the respondent has committed an unfair labour practice related to benefits by unfairly excluded them (applicants) from the Teacher Incentives Scheme. The applicant were fairly excluded from the teacher incentives scheme, since they do not qualify.

7. Award

7.1 I find that the respondent, Limpopo Department of Education did not committee an unfair labour practice related to benefits against the applicants, Manamela S.M and 18 others.
7.2 The applicants’ case is dismissed.

V. Madula
Panelist