Case Number: ELRC125-24/25
Commissioner: Carlton Johnson
Date of Ruling: 16 January 2025

In the MATTER between

SAOU OBO ANNEKA HATTINGH
(/Applicant)

And

WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing took place under the auspices of the ELRC on 1 July 2024, 22 August 2024 and 9 October 2024. I furthermore directed the bargaining council to enrol the matter for a quantification hearing which took place on 2 December 2024. The applicant was represented by Rudolf Baard an official of SAOU and Tebogo Seelamo appeared for the respondent.
2. At the conclusion of the arbitration proceedings on 09 October 2024, it was agreed that written closing arguments will be submitted by close of business on 21 October 2024. Arguments were received from both parties. Flowing from the quantification hearing further written submissions were received on 6 and 9 December 2024.
3. All the submissions have been considered but because the submissions are part of the extensive record, I will not restate the arguments for purposes of this award. I will refer to the salient aspects in my award where necessary.
4. The proceedings were digitally recorded.

THE ISSUE IN DISPUTE

5. I must determine whether the respondent correctly interpreted and applied Resolution 4 and 5 of 2003 and whether the applicant should be granted recognition for the period of experience worked at Moss-Kiddo’s.

BACKGROUND TO THE ISSUE

6. The applicant was appointed by with the Western Cape Education Department on 1 January 2023. Before this appointment the applicant was employed as an educator, but outside public education. In February 2024, the applicant applied for recognition of previous experience gained outside of public service, in accordance with ELRC collective agreements 4 and 5 of 2003.
7. The applicant applied for recognition for a period of 19 years. The respondent granted the applicant recognition for 15 years and the applicant’s salary moved 30 notches from notch code 164 to 194.
8. It is common cause that the respondent did not recognise the period of 5 years and 3 months that the applicant had worked at Moss-Kiddo’s. This is the crux of the dispute between the parties.
9. The applicant maintains that the respondent had unfairly excluded the experience that she had gained at Moss-Kiddo’s and recognition of experience should be granted for this period.
10. The respondent argued that this experience was gained at grade-RR level which does not form part of the core business of the Department which consists of grades-R to grade 12. To this extent, the respondent is of the view that the period at Moss-Kiddo’s should be excluded.
11. There was also a further dispute between the parties with regards to the so called in between notches. The applicant maintained that because certain notch increases were below 0.5%, there should have been a further adjustment to ensure that each notch carries at least 0.5%.
    SUMMARY OF EVIDENCE AND ARGUMENT
    THE APPLICANT’S CASE
12. Anneke Hattingh is the applicant in this matter, and she presented the following evidence under oath. The applicant was asked to read into the record an email sent by her representative to the respondent regarding her application for recognition.
13. The union asked respondent to confirm which certificates and which periods of service, the respondent did not recognize for purposes of recognition of prior experience. The respondent was further requested to provide the union with its interpretation and application of the two types of experience, actual and appropriate, as provided for in the PAM and ELRC collective agreement 5 of 2003.
14. The applicant further referred to an email sent by Baard on 7 June 2024, advising the respondent that the applicant had applied for 19 years of service and that this qualified her to be appointed at notch code 204 and not 194.
15. The applicant confirmed that she received 15 years of recognition of experience. The applicant confirmed that she was appointed with the effect from 1 January 2023, at which stage she was appointed at notch code 164. She received recognition of previous experience and was moved to notch code 194.
16. Her recognition was based on the certificates of service she submitted to the respondent as part of her application. It is the period served at Moss-Kiddo’s that was not recognised by the respondent.
17. Moss-Kiddo’s catered for pupils from 6 months to grade RR. Although, the school catered for learners from 6 months to grade-RR she was the grade RR teacher, and she covered the subjects, Home Language, Mathematics and Life Skills at grade-RR level. She was at Moss-Kiddo’s for the period 1 January 2008 to 31 March 2013. She was also the principal of the school.
18. The applicant in her testimony referred to collective agreement 4 of 2003. This collective agreement deals with post and salary structure for educators. The purpose of the agreement is to amend the Personnel Administration Measures (PAM) to reflect the new post and salary grading system for educators. She was not aware of this document before her discussion with the trade union.
19. The starting salary of newly appointed educators is the minimum notch of the applicable salary scale, provided recognition for actual teaching or other suitable experience is given.
20. The applicant also referred to collective agreement number 5 of 2003, which is dated 10 April 2003. This agreement relates to amendment to measures dealing with the recognition of experience of educators employed outside public education. The purpose of the agreement is to amend the Personnel Administration Measures (PAM) to give the same recognition for experience gained outside public schools to educators who were employed in public education.
21. This collective agreement refers to two types of experience, actual and appropriate experience. Actual experience pertains to all experience gained while the person held an educators post inside and outside of public education. Appropriate experience pertains to working experience, which in the opinion of the employer, developed the candidate directly and oppositely, in all respects regarding knowledge, skills and attitude, for holding an educator’s post.
22. The applicant referred to the scope of the subjects covered in grade-RR. Her classes covered, Bible story, the song of the day and prayer. The applicant further covered the weather chart and this included reciting days of the week, months of the year and the four seasons of the year. This was done to build a strong foundation for mathematics. Learners counted to 1 to 10 and 1 to 20. This also included shapes and colours. In the early years of development, they must use colours and shapes in mathematical equations. They must feel and touch it and even sometimes taste. She covered a lot of outside and inside activity.
23. Touching involves a lot of sensory processing and balancing including hand-eye coordination and eye-feet coordination and postural control. They got used to work with different materials and textures to assist with colour recognition and shape recognition.
24. The applicant testified that the grade-RR experience should be recognized because she used the same qualifications to teach Grade R and grade RR. The respondent did not consider the in-between notches.
    THE RESPONDENT’S CASE
25. The respondent called Mrs Leukes as a witness. Although her evidence was considered, I do not deem it necessary to summarise her evidence for purposes of this award. The reasons will become evident in my analysis.
26. Mr Lombaard testified that he is employed in the Directorate service benefits. Recognition of experience is a type of top up of remuneration. Resolutions 4 and 5 of 2003 is limited to experience outside of public education. Resolution 5 places a limit on salary when you enter the public service. The PAM was issued to elaborate on resolutions 4 and 5.
27. The certificates submitted to apply for recognition of experience must be signed by the governing body and there must be exact dates indicated. This must be post qualification experience, otherwise it should be excluded. The notches are 0.5% and to receive at least 1% of salary increase an adjustment of 2 notches are required. If the two notches are less than 1% the employer would top it up further to ensure the requirement of at least 1% is met. Lombaard also explained the difference between actual and appropriate experience.
28. Actual educators experience pertains to all experience gained while the person held an educators post inside and outside of public education.
29. Appropriate experience pertains to working experience, which, in the opinion of the employer, developed the candidate directly and oppositely in all respects regarding knowledge, skill and attitude for holding an educator’s post. Actual experience deal with the core functions of the department, which starts at grade R to grade 12. Appropriate experience is outside this range and is experience at the discretion of the department that developed a candidate directly for holding an educator’s post.
30. Anything falling outside of this range is a discretion and not automatic. If there is any doubt, the department would consult internally. In the case of the applicant, the department only recognized 15 years of experience. With regards to the remaining 5 years and 3 months worked at Moss-Kiddo’s no recognition was granted as the grades were at level 6 months to grade RR. This position was clarified with recruitment who agreed. The applicant’s salary was adjusted from notch 164 to notch code 194. This was a total of 30 notches as the notches carries a value of 0.5%.
31. These grades (6 months to grade RR) fall outside the WCED core function, and the applicant therefore does not qualify for recognition. This is discretionary, and the department exercised its discretion in terms of the policy. It allows the department discretion, and it is not the intention that everything will be recognized. It is the opinion of the employer that counts in as far as recognition is concerned. If the period in question was at grade R, he would have agreed that the respondent had erred.
32. Lombaard also emphasized that any overpayment or underpayment could be corrected in terms of the regulations. Lombaard confirmed that he had sent an email to the applicant on 21 February 2024 explaining the same position he had testified to at the arbitration hearing. He explained in the email that with regards to the remaining 5 years no recognition will be granted as it involved 6 months to grade RR.
33. During cross examination Lombaard agreed that the email he had sent to the applicant did not explain the reasons as to why the period should be excluded. If all the certificates were recognised the applicant would have been granted 19 years of experience which is a total of 38 notches.
34. Lombaard agreed that the applicant was taken from notch code 164 to 194.
35. Lombaard also conceded that the department had made a calculation error in that the applicant should not have received 15 years recognition of experience. Lombaard testified that he cannot comment on the calculations as prepared by the union. He agreed the difference in notches are not always 0.5%. The percentage difference between notch code 189 and 190 is 0.35%. Lombaard testified that the issue of in-between notches is not part of the dispute, and this can be corrected if there was a calculation error in terms of an underpayment or an overpayment.
36. It was put to Lombaard that according to the collective agreement 5 the definitions used by the department was only applicable to the period before July 1996. It was put to Lombard that there were no definitions regarding appropriate and actual as this was not covered in the PAM and the collective agreement.
37. Lombaard insisted that the PAM is just more descriptive and takes all the resolutions into account. He cannot say why the PAM has more information than the collective agreement. It was put to Lombaard that the PAM was not in line with the collective agreement. Lombard confirmed that the stance of the department is that grade RR is not covered by the collective agreement. This is the department’s interpretation. When asked who gives the department the right to deviate from the collective agreement, Lombaard stated that it is in the discretion of the department. He emphasised that the department do not cover toddlers.
    ANALYSIS OF EVIDENCE AND ARGUMENT
38. The dispute was referred in accordance with the provisions of resolution 4 and 5 of 2003. The dispute is therefore about the interpretation and application of the collective agreements. As I understand the submissions, the applicant was granted recognition in respect of actual teaching experience and the dispute is about whether the period of appropriate or alternative suitable experience, should be recognised.
39. Appropriate experience pertains to work experience which in the opinion of the employer, developed the candidate directly and appositely, in all respects regarding knowledge, skills and attitude, for holding an educator post.
40. The appropriateness of the experience must be seen in the context of the opinion of the employer.
41. It is therefore a requirement that the employer must have considered and evaluated the experience to decide whether the experience should be granted. The respondent exercised its discretion by granting 15 years of experience but excluded 5 years and 3 months worked at Moss-Kiddo’s.
42. It is trite that in terms of the golden rule of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some inconsistency.
43. In dealing with the interpretation of a collective agreement in Western Cape Department of Health v Van Wyk and Others (2014) 35 ILJ 3078 (LAC) the court had this to say at para 22 of this judgment: In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application of such agreements, namely, to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
44. In Arries v CCMA (2006) 27 ILJ 2324 the labour court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. It further held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
45. Having considered the totality of the evidence in this matter, I am of the view that the respondent had unfairly excluded the experience the applicant had gained at Moss-Kiddo’s. I could not find any reference in the two collective agreements that it specifically exclude grade-RR experience. Based on the reasons that will follow, I find that the respondent exercised its discretion based on an incorrect principle.
46. I accept that the experience will only be granted if it is in the opinion of the department appropriate or suitable experience. However, I am of the view that the purpose of the collective agreement is to recognise experience gained by educators outside of public education to fairly remunerate educators based on their years of actual teaching experience.
47. Experience should only be excluded if it is evident that it does not amount to appropriate experience. Exclusion of any period of experience should be approached with caution as to prevent prejudice.
48. Based on the evidence, it is clearly established that the applicant did not teach 6-month-old toddlers. The applicant presented clear and coherent evidence that she was the grade-RR teacher.
49. The applicant was an experienced grade R teacher before her appointment at Moss-Kiddo’s and she broadly speaking followed an adapted grade R approach to build on early foundation for mathematics, home language and life skills.
50. The applicant used her experience as grade R teacher to cover the fundamentals of early foundation. The applicant was very familiar with what was required.
51. The evidence points to the fact that the respondent considered the certificate in respect of Moss-Kiddo’s in isolation and without at least some form of an engagement with the applicant.
52. The applicant stated in terms of the certificate of service that she covered the 6-month to grade-RR. The applicant caused some confusion in this regard because in her evidence at this forum, she testified that she was the grade-RR teacher. She did not teach the category below grade-RR.
53. This is what should have been reflected on her certificate of service. By referring to the 6-months category the applicant caused some confusion as to the relevance of the experience she is asking to be recognised.
54. However, what the respondent ought to have done was to engage the applicant to clarify the scope of her teaching experience at Moss-Kiddo’s. Instead, the respondent took the decision based on the certificate of service at face value, but the information was incorrect. I accept that where experience is recognised that the respondent would make the decision on the documentary evidence. However, if a view is formed that a period of experience should be excluded a more consultative and cautious approach should be followed to ensure the respondent’s discretion is properly exercised.
55. This conclusion is clear based on the evidence of Lombard that there was no formal meeting or other engagement with the applicant to clarify the ambit of the teaching conducted at Moss-Kiddo’s.
56. Had the respondent consulted with the applicant, it would have established that the applicant covered grade-RR and that the work covered dealt with early foundation based broadly on the grade R curriculum.
57. I can see no reason why this experience should be excluded as it clearly contributed to the development of the applicant as an educator. Whether the definition of appropriate experience is defined in the resolution is not particularly relevant as it was clearly the intention of the resolution to allow for recognition of appropriate experience.
58. Grade-RR is not specifically excluded from the collective agreements and as such it is my finding that the respondent had unfairly excluded the experience gained at Moss-Kiddo’s. This period should be recognised.
59. The respondent is directed to recognise the period of 5 years and 3 months.
60. In conclusion it is important to highlight that my award is not intended to pronounce on whether grade-RR experience constitute appropriate experience as a matter of principle, but this award is based on the specific experience demonstrated by the applicant and the approach followed by the respondent in exercising its discretion. The rational that every case should be determined on the facts of the specific case, remains intact.
61. For the reasons as stated I make the following award.
    AWARD
62. The respondent, Western Cape Education Department, is ordered to recognise the period of 5 years and 3 months the applicant had gained at Moss-Kiddo’s.
63. The respondent, Western Cape Education Department, is ordered to appoint the applicant to notch code 205 to give effect to paragraph 62.
64. The respondent, Western Cape Education Department, is ordered to pay the applicant back pay in the amount of R78 883,25 by no later than 31 January 2025.

CARLTON JOHNSON
SENIOR COMMISSIONER