28 January 2025 – ELRC731-23/24MP

Commissioner: NTATE MABILO
Case No.: ELRC731-23/24MP
Date of Award: 07 January 2025

In the ARBITRATION between:

Mdhluli, Mathuli
(Union / Applicant)
and

Education Department of Mpumalanga
(Respondent)

Union/Applicant’s representative:   XC Mzobe, Attorney at Mzobe Attorneys.                            
Union/Applicant’s address:                              
     Telephone:         
Mobile:     
Telefax:        


Respondent’s representative:    Frieda Rieger, Employee of the respondent.  
Respondent’s address:       



Telephone:      
Facsimile:      
             Email:

DETAILS OF HEARING AND REPRESENTATION:

The arbitration of the alleged Unfair Labour Practice dispute between Mdhluli, Mathuli (Applicant) and the Education Department of Mpumalanga (Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), virtually on 12 April 2024 and again on 31 October 2024.
The applicant was represented by XC Mzobe of Mzobe Attorneys and the respondent was represented by Frieda Rieger, an employee of the respondent.
The proceedings were conducted in English and were manually and digitally recorded.
PRELIMINARY ISSUES
There were no preliminary issues raised.
ISSUES TO BE DECIDED
5.I was required to determine whether the respondent acted unfairly when they refused to pay the applicant acting allowance for all the period that he acted in a position of Chief Education Specialist. If so to determine the appropriate remedy.
Relief sought was to to be paid acting allowance for the full period that the applicant acted.
BACKGROUND TO THE DISPUTE
7.The applicant started working for the respondent from 01 March 1993.
His latest position was Deputy Chief Education Specialist.
He was at a salary notch of R895 000.00 per annum.
The applicant acted in a position of Chief Education Specialist from 01 February 2020 to 31 August 2021 and he was only paid acting allowance for the period from 15 June 2020 to 31 March 2021.
SURVEY OF EVIDENCE AND SUBMISSIONS:
Applicant party submissions:
The applicant party presented their case through ZC Mzobe as follows:
The applicant was requested to act as Chief Education Specialist for Ehlanzeni District. He accepted and acted for the period from 1 February 2020 to 31 August 2021.
At the time he started acting, his letter of appointment to act was not signed by the HOD. It was from the District Director, Ms.NEH Brukwe. The letter stated that the applicant must start on 01 February until further notice.
The applicant acted from 01 February 2020 till 31 August 2021and he was never queried. The employer was aware that he was acting in that position including the HOD.
For the acting period from 15 June 2020 to 31 March 2021, he was paid acting allowance. He was not given reasons why he was not paid for the remainder of his acting period.
When he followed up, he was told to be patient. He approached Human Resources Management, and he was told of the need for approval from HOD. He then approached the HOD, who said that he would look into the matter.
A memo was written by District Director and supported by some Chief Directors, seeking Expost Facto approval of the acting starting from 1 February 2020 and the HOD only approved a certain portion, citing the lockdown as his reason.
The letter to the applicant was from his superior and it was given to him without HOD’s approval while the department knew that it needed the HOD’S approval. Management failed to wait until the HOD’s signature and it should not prejudice the applicant.
The applicant did work during covid 19 as part of Essential Services and all those who worked during that period were paid.
Respondent party submissions:
The respondent party presented their case through Frieda Rieger as follows:
The applicant was permanently employed as an office-based Deputy Chief Education Specialist at Inclusive and Education Curriculum Enrichment, within Ehlanzeni District.
On 01 February 2020, Ehlanzeni District Director: Ms. NEH Brukwe issued a letter directing the applicant to act as Chief Education Specialist (CES) until further notice. This was followed by a formal approval by the HOD which was for a period from 15 June 2020 to 31 March 2021 for which the applicant was paid acting allowance. The periods outside the approval by HOD could not be honored as they lacked legitimacy.
That acting positions and acting allowance was not contractual but regulated through regulation 63 of Public Service Regulations and it was based on formal approval processes.
The letter issued by the District Manager lacked the HOD’s signature which would have given it legitimacy
Acting positions are temporary performance based benefits and they do not constitute binding contracts.
24.The department formalized approval when the operations resumed after covid. However, claims outside the approved period lacked the required legal foundation and could not be paid.
Acting positions and acting allowances are governed by the regulatory framework in terms of the Public Service Regulations of 2016. In this case the regulatory framework was not followed.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
The dispute was referred as unfair labour practice in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended. According to the LRA there are specific actions that constitute unfair labour practice and they are stated as follows:

(a) unfair conduct by employer relating to the promotion, demotion, probation, training or provision of benefits.
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee.
(c) failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement.
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act of 2000.

The applicant’s matter is directly linked to subsection (a) above.
I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and determination of the dispute.
In the case at hand, the applicant’s version is that he was appointed to an acting position of Chief Education Specialist by his senior, the District Manager and he acted for the period from 01 February 2020 to 31 August 2021. He was only paid for the period from 15 June 2020 to 31 March 2021. He needs payment for the remainder of the period, namely from 01 February 2020 to 14 June 2020 and from 1 April 2021 to 31 August 2021. According to this version the issue of HOD’s signature should not prejudice the applicant as it was not his making. It was management who issued the letter without HOD’s signature and the applicant complied with the request to act and acted in the position as requested.
The respondent party version was informed by the priscripts, namely the Public Service Regulations, with specific reference to regulation 63, HRM Directive No. 14 dated 07 December 2017 and the approval memorandum signed by the HOD on 15 June 2020. The HRM Directive informed all managers at all levels about the need for HOD signature and that no acting appointment of any office based employee/official will be allowed or permitted if not approved by the Accounting Officer. The memorandum approved by the HOD specified the period of acting as from 15 June 2020 to 31 March 2021 and acting allowance was paid for that period.
Flowing from the above, it is common course that the District Manager issued a letter appointing the applicant to an acting position of Chief Education Specialist contrary to the priscripts cited above. This was done by a District Director, committing the department and while still going to seek permission from the HOD. No mention was made in the hearing as to what disciplinary action was taken against her for this. As a Director, she was expected to have been aware of the policies and to have advocated for compliance with them. I am persuaded to believe that she was the one who failed to comply with the prescripts and committed the department.
It was also common course that the applicant was permanently appointed as an office-based educator.He was asked to act in a higher vacant funded post and eligible for acting allowance. The issue in dispute was about the non-payment of acting allowance for periods outside the approval by the HOD. There was therefore no argument as to his eligibility to be paid acting allowance or not.
As regards the approval by the HOD, I fail to understand the rationale for approving an application for something that had happened in Frbruary 2020 and making it to be effective in June 2020. The submission was for expost facto approval, which meant condonation of a decision already implemented, yet the HOD changed it to a normal approval, defeating the purpose of the submission. This compromised the department. The reason that it was not necessary to approve the acting from 1 February 2020 to 14 June 2020 because of Covid was also not convincing. Instead of dealing with the Director for ignoring the directives, the HOD decided to deny the applicant the allowance worked for as instructed by his senior.
I find it strange that a senior official at Deputy Chief Education Specialist level, after he was not paid for the period from 01 February 2020 to 14 June 2020 on the basis that he was only appointed fro 15 June 2020 to 31 March 2021, he continued to act until August 2021. He was also expected to know that acting allowance was only for 12 months as stated in the Public Service Regulations. I fail to understand how did the applicant expect to be paid for further months which were not authorised, after he was not paid for the earlier months. The applicant should have known that he was not going to be paid if he continued to work without approval.
On the basis of the above, I am persuaded to believe that while the prescripts are clear, they were not followed by their custodians, managers who represented the respondent. In the process the applicant found himself having worked and not eligible to be compensated. That created the unfairness. It will be only fair to have the applicant paid the allowance for the period from 01 February 2020 to 14 June 2020. As for the period from 01 April 2021 to 31 August 2021, he should have known that it was not authorised and therefore he was not going to be paid.
For the period from 15 June 2020 to 31 March 2021, the applicant was paid acting allowance at a rate of R9187.50 per month. Therefore, for 1 February to 14 June 2020, acting allowance at the same rate shall be 4,5 months x R9187.50 which equals R 41 343,75.
Based on the above facts and all other evidence considered, I conclude with the following award:
Award:
There was indeed unfairness in the action by the respondent not to pay the applicant the acting allowance worked for during 1 February 2020 to 14 June 2020.
The Mpumalanga Department of Education is hereby ordered to pay the applicant, Mdhluli MA the outstanding acting allowance for the period 01/02/2020 to 14/06/2020, which amount to R 41 343.75 by no later than 15 February 2025.
The Department is hereby required to oblige.