Panelist: Clint Enslin
Case No.: ELRC 703-24/25 EC
Date of Award: 17 December 2024

In the ARBITRATION between:

NAPTOSA obo Joyce Msutwana
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Ms N Holby (NAPTOSA)    
Applicant’s address:        

            Telephone:  067 709 5568    
Telefax:        
                                                    Email        ssec1@naptosa.org.za    

Respondent’s representative:    Ms A Slabbert   
Respondent’s address:       


Telephone:  071 894 8607    
Telefax:        
Email   ansie68lro@gmail.com     

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The arbitration was held via Teams (virtually) on 5 December 2024.
2. The Applicant, Ms Joyce Msutwana, was represented by Ms Nwabisa Holby, a Full Time Shop Steward of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Ms Annalie Slabbert, an Employee Relations Officer, of the Respondent.

ISSUE TO BE DECIDED

3. Whether the Respondent’s failure to pay the Applicant progression pay, amounts to an unfair labour practice as per Section 186(2)(a) of the LRA.
4. If so, determine appropriate relief.

BACKGROUND TO THE ISSUES

5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

5.1 The Applicant has been employed by the Respondent, as an educator, since January 1992.

5.2 She is currently a PL2 educator.

5.3 The Applicant is on a salary notch of R476 181.00 per annum.

5.4 The Applicant did not receive a pay progression for 2023 on 1 July 2024.

5.5 If the Applicant received her notch increase on 1 July 2024, her new salary notch would have been R476 888.72 and the backpay would amount to R4 246.32 for the period 1 July 2024 to 31 December 2024.

5.6 The QMS composite sheet was not signed by the Applicant.

5.7 A QMS composite sheet, signed by the parties, is required to process pay progression.

6. The Respondent handed in 1 document, marked “R”. It was agreed that the said document was what it purported to be.
7. The Applicant seeks to be paid her pay progression for 2023 and accordingly she seeks to be placed on the higher notch and receive backpay.
8. The matter was digitally recorded.

SURVEY OF EVIDENCE AND ARGUMENT

9. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
   terms of Section 138(7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
   evidence and arguments heard and considered in deciding this matter.

APPLICANT’S CASE

Ms Joyce Msutwana

10. Ms Msutwana testified that she performed her duties at Soqhayisa Senior Secondary School.
11. On 6 November 2023 she was at the school but could not recall if she had been there the entire day. She was not aware that her supervisor/manager, Mr Masiza, was completing her QMS form on the day. He did not involve her in the process. She was not aware of the marks she had been allocated on R. She had not refused to sign R and was not given any form. She was aware that if she failed/refused to sign the form she would not receive pay progression. She would not purposefully deprive herself as it would affect her pension. She had submitted QMS forms in the past. She had in her previous years submitted her forms in November. She knew that the notch increase was effected in July of the following year. She had not asked about her QMS in November 2023, as the Principal had made it clear that he wanted nothing to do with her. She had not asked Mr Masiza, about the form, as he did what the Principal told him.
12. She disputed that the secretary had also given her the form to sign. She was aware of the grievance procedure. She had not filled in grievance about the form, but had reported it to her union. She knew that she had not submitted a QMS form for 2023, but she was hoping to receive the increase as anything could be expected with the Principal and Deputy Principal.
13. After the conciliation of the matter in September 2024, she had gone to Doctor Pather at the QMS Department the next day as instructed by her representative. They found her form, which was not signed. Ms Jantjies, who works with Doctor Pather, was also there. Ms Jantjies left the office. Doctor Pather said she could leave and that they would call her and the principal and try to sort it out. The next day Mr Adams, from the union, phoned for her to meet him at Dr Pather’s office. They went to her office and she called the Principal, who also came there. Mr Adams addressed him and he started shouting and left. Ms Holby had spoken to her about possibly moving to a different school, but not about the current issue. She was aware that colleagues had received their forms and not her, but she felt that she could not approach the Principal.

RESPONDENT’S CASE

Mr Melvin Nopote (Principal at Soqhayisa Senior Secondary School)

14. Mr Nopote testified that he had been at the school for 16 years. He would moderate the QMS and either he or the Deputy Principal would take the QMS forms to the Respondent. The Deputy Principal would take him through the scores. The educators would score themselves and they would then adjust them accordingly. The adjusted form was then given to the educators and if they did not agree, the Deputy Principal would discuss same with them. He had never needed to intervene in a QMS dispute before. The Applicant had not attempted to speak to him about QMS. The Applicant had received her form for 2023 as the Deputy Principal had confirmed same. He had been called to Doctor Pather’s office about the issue. He believed that this was in August or September 2024, but was not certain of the date. Upon his arrival. Doctor Pather informed him that the Applicant was disputing the QMS. She explained that they had claimed she was not issued with the form and had not signed same. He tried to explain that they had proof they had signed same. There was a disagreement/argument and they left as Doctor Pather had confirmed the meeting was over. In the meeting he had also stated that if the form needed to be redone they could do so, but the Applicant did not accept this.
15. He was not aware of any closed door policy that he had with the Applicant. The Applicant had signed her 2024 QMS forms. He did not charge the Applicant when she refused/failed to sign the QMS form as he had charged her before and nothing had happened. He disputed that he was the reason why the matter could not be resolved in Doctor Pather’s office.

Mr Mziwebandla Masiza (Deputy Principal at Soqhayisa Senior Secondary School)

16. Mr Masiza testified that he was the Applicant’s immediate supervisor. The QMS process was that self-evaluation forms were issued. Department Heads would score educators and bring the forms to him. He would take same to the Principal. They would all discuss same if they did not agree. For Departmental Heads, they would also be issued the forms for self-evaluation. If anything needed discussion, they would do so. If there were no issues, the forms would be returned to the supervisor, signed and submitted. He would co-ordinate same, but keep the Principal up to date. The Principal would also look at the scores. He had issued the 2023 form to the Applicant and asked that she check same and return it to him. She could query if she needed to. She returned it, with a colleague, unsigned and without any comments. He then sent the secretary to follow up with her. The secretary returned, but the form was still unsigned. He had informed the Principal that the Applicant had not signed the form.
17. The Applicant had never approached him saying she had not received the form. She had also not signed the QMS forms in 2022. In 2024 she did sign. She had put in some scores in 2023, but not all of them. He was not present when she scored herself. He had not discussed his scoring with her, but had sent it to her to check. The reason it was done like this was because she did not come when they would call her to discuss anything. He and the Principal had agreed on the scores he gave her and had signed. He did not follow up when the secretary returned with the unsigned form. He felt that after not signing the form for the second time she needed to come to him. He had not met with the Applicant when he signed her QMS form.

ANALYSIS OF EVIDENCE AND ARGUMENT

18. Section 186(2) of the LRA states 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 a benefit to an employee. (Own underlining)
19. The payment of pay progression is performance based and is subject to a specified process and the educator meeting a set performance standard. The educator must obtain a specified mark in the evaluation in order to qualify for the progression pay. The documentation, in this regard must be submitted to the department within a specified timeframe. The Applicant did not receive pay progression for 2023. The Respondent claims that the Applicant refused/failed to sign the required documentation. On the other hand the Applicant claims that she never received same.
20. The Respondent’s witness testified that he had sent her the form and that she had returned it with a colleague, unsigned. He had then sent the secretary to follow up with her, but the form remained unsigned. The Applicant disputes that she was ever given a form.
21. It is clear that these versions are mutually destructive. The Applicant, however, conceded that she was aware of the QMS process and therefore knew that if the form was not signed she would not receive same. The Respondent’s witness also testified that in 2022 the Applicant had also not signed her form. (It was confirmed that the Applicant had later referred a dispute for both 2022 and 2023, but that there had been a ruling issued to the effect that 2022 required condonation.) It is clear that 2023 was not the start of issues between the parties. I find it puzzling that the Applicant, as a Department Head that deals with QMS, and as a person that by her own admission was aware of the consequences of not signing the form would not approach someone if she did not get the form. She confirmed that she was aware that others had received theirs and also that she knew when they normally received the forms.
22. Even if she could not approach the Principal, which was disputed by him, surely, she could have approached the Deputy Principal or reported it to the Department. On what basis did she hope it would be sorted, without signed forms? How did she hope to receive the QMS increase in the absence of forms and without knowing what she had scored, if she did not receive any form?
23. The Applicant must have known that she did not receive a form, if her version is correct, by November 2023, however, she claims she waited in hope. She only referred a dispute after the July implementation date. Again, given her knowledge what was she hoping for and why not take action when the form was not received in November 2023? If she had indeed reported it to the union at the time, the union would surely also have been aware that in the absence of a signed form she would not receive the increase. On what basis would they then not have taken the matter up immediately? In view of the aforesaid, I find the Applicant’s version to be improbable.
24. It is clear that without a signed form, QMS cannot be processed in favour of the Applicant. She confirmed this much. The onus is on the Applicant to prove, on balance of probabilities, firstly the facts upon which she seeks to rely and secondly, that the facts so proved amount to an unfair labour practice. In my view, the Applicant has failed to do so.

AWARD

25. The Respondent, the Department of Education: Eastern Cape, has not committed an Unfair Labour Practice, in terms of Section 186(2)(a) of the LRA – relating to benefits, against the Applicant, Ms Joyce Msutwana, by not paying her pay progression for 2023.
26. The Applicant is not entitled to the relief she claims and her case is accordingly dismissed.

Name: Clint Enslin
(ELRC) Arbitrator