28 January 2025 – ELRC697-24/25 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC697-24/25 EC

In the matter between:

NAPTOSA OBO DELANI KHOZA Applicant

and

KING SABATA DALINDYEBO TVET COLLEGE Respondent

PANELLIST: YOLISA NDZUTA

HEARD: 12 DECEMBER 2024

DATE OF AWARD: 20 January 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to the provision of benefits

SUMMARY: Whether the Respondent perpetrated conduct that meets constitutes an unfair labour practice relating to benefits by failing to pay the Applicant on the correct salary notch.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The matter was set down as an arbitration to be heard before me on the 12th of December 2024. During these proceedings, the applicant, DELANI KHOZA was represented by Mr. Zigqibo Kayla of NAPTOSA while the Respondent, KING SABATA DALINDYEBO TVET COLLEGE was represented by Mr Lunga Mswane and Mr Nkomozibomvu.
The parties confirmed receipt of the notice of set down.

THE ISSUE IN DISPUTE

I am required to determine whether an unfair labour practice relating to promotion was committed by the Respondent relating to the failure to remunerate the applicant on the correct salary notch and as such apply accurate pay progression.

THE BACKGROUND TO THE DISPUTE

I am required to determine whether an unfair labour practice was committed by the Respondent
relating to the Applicant’s salary which was being calculated per the application of the incorrect notch. The Applicant seeks that his salary notch be corrected and that he be compensated accordingly.
The Applicant claimed that he’s salary was calculated on the incorrect notch due to his previous experience and qualifications being overlooked by the Respondent. The applicant also claims that the latter error then translated to other benefits and the implementation of other salary related virtues.
The Respondent challenged the above.

SURVEY OF EVIDENCE AND ARGUMENT

The applicant testified in support of his case while the Respondent did not call any witnesses to testify. I have hereinbelow summarised the viva voce evidence (testimony) of the proceeding and this summary should not be considered as the transcript of the testimony.

Applicant’s Version

Mr Delani Khoza (the Applicant) testified that:

8.1 He was appointed as a Mathematics and Sciences lecture since 26th of February 2021 by the Respondent.

8.2 At the time of being appointed he was holding a degree in Chemical Engineering.

8.3 Prior to working for the Respondent, he (the Applicant) was working for the Ethekwini Municipality as an engineer and his duties included educating, training and assessing other employees (subordinates) to ensure that they are competent.

8.4 During the previous employment, he had obtained a qualification as an assessor and therefore was permitted to lecture, assess and moderate. In addition to the latter, he could monitor the performance of his learners (subordinates) and this is not different from what he is doing within the employment of the Respondent.

8.5 Since commencing his current role within the Respondent, he (the Applicant) advised the Respondent as an employer of his previous experience and furnished the required documentation to avoid being considered a junior lecture (starting with no experience or training) however this was not considered by the officials of the Respondent.

8.6 The employer having received the documentation in response to the matter as a dispute lodged internally failed to take any action and as such necessitating the referral to the ELRC. Rather when there were any meetings with the officials of the employer convened regarding this dispute, the applicant was referred to the PAM Document (as amended) most notably B.8.5.2.2 & B.8.5.2.3 which reads

“Recognition of actual experience for promotion purposes:
(a) The educator’s years of actual experience will still be considered for promotion purposes. E.G. If a deputy principal applies for a promotion post of deputy principal again after a break in service, his/her actual years of service will still be recognised for promotion purposes.
Appropriate experience obtained outside public education for determination of salary:
(a) The provisions as outlined in Chapter B.8.4.3.1 relating to the above-mentioned in the determination of salary will not apply to educators who have resigned or retired and reappointed.

B.8.4.3.1 reads:

“(a) For purposes of determining the starting salary of an educator with experience outside public education, additional notches may be granted based on actual teaching and/or appropriate experience.
(b) Experience gained before 1 July 1996 (ELRC Collective Agreement 5 of 2003)

(i) The same recognition for experience gained outside public education must be given to educators appointed for the first time in public education after 1996, as for educators who were in public education at any period before 1 July 1996.
(ii) The salary position that would have been applicable to the person on 30 June
1996 as a result of the experience that he/she gained before 1 July 1996, in terms of the measures that applied at that stage, must be determined.
(ili) The salary scale that was applicable to educators in Category D (MO) will apply to an educator with a qualification of REQV 14 and higher.”

8.7 Mr Khoza testified that he had not resigned or retired from an institution of high learning and training.

8.8 Mr Khoza also referred to practice notes in B.8.4.3 in the PAM document and emphasised the second note which reads:
“Appropriate experience refers to working experience, which in the opinion of the employer, developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post.”

8.9 Mr Khoza also testified that he met the parameters required in terms of the PAM Document and therefore his previous experience ought to have considered. Mr Khoza emphasised that all he seeks is for the Respondent as an employer to consider the previous experience and rectify his salary notch and to compensate him accordingly.

The latter testimony was challenged and under cross-examination the following was discovered:

9.1 The core duties of the Applicant at Ethekwini Municipality included educating senior process controllers, process controllers and other sub ordinates to perform the tasks assigned to them.

9.2 The actual duties were as an educator because there were classes (the lecturing portion) and assessment (training on the job).

9.3 The actual job title at Ethekwini Municipality was professional specialist.

9.4 According to Mr Khoza, the professional specialist is equivalent to educator.

9.5 Mr Khoza also conducted facilitation at eThekwini as such when he was directed by the Respondent to obtain his assessor and facilitator training, he advised them that he had already secured qualifications as an assessor and facilitator.

The Respondents’ Case:

The respondents did not call any witnesses.
The parties made oral submissions which shall be summarised herein below. Their respective submissions were considered and shall be incorporated in the analysis of the argument.
The applicant’s oral submissions were:
12.1 The employer’s (the Respondent) action of refusing to recognise the employee’s (the Applicant) was unreasonable as it is evident that Mr Khoza satisfies the requires for the recognition of previous experience in terms of the PAM document;

12.2 It is evident that the employer doesn’t have a case because they couldn’t even call a witness to support their case.

12.3 Even on a consideration of documentation, the employer cannot challenge the employee’s previous employer confirming the requisite experience.

12.4 It is clear that the Respondent herein employed the applicant who was thoroughly experienced and benefited from not having to train the Applicant.

12.5 The applicant enjoys the knowledge, skills and attitude which meets the statutory parameters of the PAM document.

12.6 Within the TVET college, there is ISAT and ICAS which the applicant was well aware of both before joining the employment of the Respondent.

12.7 Even on consideration of the confirmation from the Applicant’s previous employer, the Applicant was not an entry level employee as he enjoyed experience in the post.

12.8 The policy makers have been clear that previous experience must be considered which the Respondent has no reason to consider same previous experience. The Respondent’s refusal to consider the previous experience and comply with the policy is what established the dispute.

12.9 Reflection of ELR Collective agreement 5 of 2003 which refers to consideration of salary notch as such we are seeking the recognition of the previous experience and therefore the employer must parity the salary notch and the increases the applicable.

13 The Respondent’s closing submissions were:
13.1 The previous experience recognition is determined by the PAM document (as amended) and we are of the view that the Applicant does not enjoy education related -actual – experience because his previous job title was that of an engineer and not an educator.

13.2 The applicant confirmed that he was not an educator regardless of the ancillary functions.

13.3 Also on the advert that the Applicant was appointed, he accepted the salary notch and the title.

13.4 The Applicant is not entitled to any relief herein.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

The closing submissions made by the parties to support their respective cases were considered in conjunction with the viva voce evidence and submissions made during the hearing.
The applicants referred an unfair labour practice dispute which relates to promotion/appointment which is established in law under section 186(2)(a) as:

“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;

I considered the parties’ respective case and evidence from the latter perspective. In considering the above, my task is to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not.
As established in case law, in such disputes the applicant bears the onus to prove the existence of an unfair labour practice thus must in its case establish how the conduct of the employer (respondent) satisfies the above definition.
Before I reflect on the testimony, let us consider the dispute referred vis a vis the case argued. The applicant referred an unfair labour practice dispute relating to promotion which means that the crux of his dispute relates to the upward movement within the workplace seeing that he is already in active duty of employer. The applicant on the other hand argued more towards the Respondent’s incorrect interpretation of the legislation and the failure to apply same legislation.
In the matter of Bierman and Others v MEC Free State Department Of Health (PR59/21) [2024] ZALCPE 13 (15 April 2024) the court in addressing the correct classification of a dispute emphasized in dictum that a Commissioner did not have the jurisdiction to deal with the fairness of a collective agreement as a species of an unfair labour practice. When the true nature of the dispute is that of the interpretation and application of a valid collective agreement, the dispute should be pursued under section 24 of the LRA.
In the matter of in considering the above, my task is to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not. In the matter of Swanepoel v Judicial Inspectorate for Correctional Services (C160/2020) [2023] ZALCCT 37 (27 June 2023) the Labour Court held that an employee’s salary notch is adjustable if the applicable legal requirements are met. Most notably, in MEC for Transport: Kwa-Zulu Natal and others v Jele (2004) 25 ILJ 2179 (LAC) decision in Jele v Premier of the Province of Kwazulu-Natal & Others (2003) 24 ILJ 1392(LC) the court advised that an employee can only evoke unfair labour practice-promotion dispute if he is refering to an promotional post within the same employer.
Promotion as a definition refers to elevation to a higher post which includes carrying a greater authority and status than the current position reference to Jele v Premier of the Province of Kwazulu-Natal & Others (2003) 24 ILJ 1392(LC) is necessary herein.
In argument (per submissions) the Respondent claims that cornerstone in its refusal to recognise the Applicant’s previous experience is due to the difference in title and thus integral function which renders his claimed previous experience as irrelevant. The applicant on the other hand argues that the PAM of 2016 document and Collective Agreement 5 of 2003 are silent on core function rather there is reference for recognition is experience that has developed the person directly or appositely in all respects regarding knowledge, skills and attitude, for holding an educator post.
A thorough consideration of the Personnel Administrative Measures document advises that the experience is considered if the person can satisfy that he holds the necessary experience and can execute the job function.
It is not disputed that the Applicant enjoys the necessary experience and skills, it is also evident that the Respondent is enjoying the benefits of qualification and experience. It is also evident that the Applicant was not primarily employed as an educator in his previous employment, although he obtained the necessary skills and qualifications before performing educator related functions. The educator function he performed at his previous employer though similar to his current vacancy was not within the profession of education. However the Applicant’s was not in service with the Respondent’s nor within the sector or profession as the core function he exercised was different regardless of the ancillary tasks. In the premise of the latter there Applicant has not established to that there conduct of the Respondent constitutes an unfair labour practice.
The Applicant relates more to his salary notch and therefore ought to have referred a dispute relating to the enforcement of the collective agreement .
I therefore make the following award.

AWARD