29 August 2025 – ELRC69-25/26KZN

Panelist: Clint Enslin
Case No.: ELRC69-25/26KZN
Date of Award: 25 August 2025

In the ARBITRATION between:

NAPTOSA obo Peter Sutton
(Union / Applicant)

and

Department of Education: KZN

(Respondent)

Applicant’s representative: Ms Ishara Dhanook
Applicant’s address:

Telephone: 0828551796
Telefax:
Email isharad@naptosa.org.za

Respondent’s representative: Mr Itumaleng Makhooe
Respondent’s address:

Telephone: 0813233262
Telefax:
Email Itumaleng.Makhooe@kzndoe.gov.za

DETAILS OF HEARING AND REPRESENTATION

This arbitration was held, on-line via Teams, on 6 August 2025. The Applicant, Mr Peter Sutton, through his Union NAPTOSA, referred an interpretation and application dispute to the ELRC.
The Applicant was represented by Ms Ishara Dhanook, an official of NAPTOSA, a registered trade union. The Respondent, Department of Education – KZN was represented by Mr Itumaleng Makhooe, an Assistant Director – Employee Relations of the Respondent.

ISSUE TO BE DECIDED

I am required to determine if the Respondent was paid 1.5% pay progression in 2023 and 2024, in terms of a correct interpretation of ELRC Collective Agreement 2 of 2020 read with PSBC Resolution 1 of 2018, and if not;
Determine appropriate relief.

BACKGROUND TO THE ISSUES

The parties submitted a signed pre-arbitration minute to which slight changes were made on the day, prior to the arbitration commencing, by agreement between the parties.
As per the pre-arbitration minute and agreed amendments thereto, the following facts were agreed to between the parties as common cause and there existed no dispute of fact.

6.1 Once eligible, the Applicant is entitled to 1.5% pay progression in terms of the policy.

6.2 Collective Agreement 2 of 2020 and Resolution 1 of 2018, which are the applicable agreements, do not allow for any deviation from the 1.5%.

6.3 Non-payment or less than 1.5% pay progression to qualifying employees amounts to unfair labour practice (As raised with the parties, I am not sure why this point was included, given that it is not a ULP dispute that has been brought.)

As per the pre-arbitration minute, the following facts were placed in dispute:

7.1 Whether the Applicant received 1.5 % pay progression in 2023 and 2024. (The Applicant was of the view that he received 1.28% in 2023 and 1.01% in 2024, whilst the Respondent was of the view that the Applicant had received 1.5%)

The Applicant handed in a bundle of documents. The Applicant’s bundle was marked “A”. The Respondent agreed that the documents were what they purported to be. The Applicant also submitted a spreadsheet with a breakdown of the figures and periods referred to.
The matter was digitally recorded.
Written closing arguments were received on 11 and 14 August 2025.

SURVEY OF EVIDENCE AND ARGUMENT

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
Mr Peter Sutton

The Applicant, Mr Peter Sutton, testified that when he received his pay progression letter in 2023 he checked the notch, which looked incorrect in that it amounted to less than 1.5%. He then approached his union. As per A page 1, he was on R358 686 per annum, prior to the 1.5% increase. If 1.5% increase was added to this figure it amounted to R364 066.29 per annum, which is what he expected. 1.5% of R358 686 amounted to R5 380.29. R358 686 + R5380.29 = R364 066.29. As per A page 1 he was moved to R363 276 instead of R364 066.29. The difference/shortfall was therefore R790.29 per annum. He had accordingly not received 1.5% pay progression. He believed that this was a deviation from the Collective Agreement.
The annual increase on 1 April 2024 was 4.7%, as per A page 3. As such, if he had been on the correct notch of R364.066 the 4.7% increase should have taken it to R381 177.10 per annum. He was, however, placed on R380 349 per annum. The difference/shortfall was therefore R878.10 per annum. After receiving the pay progression increase in July 2024 he was placed on R384 183 per annum. If the 1.5% increase was applied to R381 177.10 he should actually have been placed on R386 894.76 per annum. As per A page 2, his revised scale in 2024 after the pay progression amounted to an increase of 1.008% instead of the 1.5%. He believed that this was a deviation from the Collective Agreement.
He wanted his notch to be adjusted and also to receive back pay. In 2023 his monthly loss from July to 2023 to March 2024 was R65.86 per month x 9 months = R592.72. The monthly loss from April to June 2024 was R68.93 per month x 3 months = R206.78. The monthly loss from July 2024 to March 2025 was 225.90 x 9 months = R2 033.07. The total shortfall for the period of July 2023 to March 2025 was therefore R2 832.57, excluding bonus. His bonus was received in June. The shortfall on his June bonus was therefore R68.93, which was the same as the monthly shortfall at that time reflected above. His total shortfall/loss from July 2023 to March 2025 was therefore R2 901.47.
He had not checked if his increases were applied correctly before 2023. He confirmed that if there were discrepancies before 2023, it would be his fault for not checking and as such he was prepared to write any such possible discrepancies off. In response to being told that there was no notch of R364 066.29 or R386 894 he responded that there were defective notches that did not appear. He could not account for why there was no notch available for the 1.5%. The Collective Agreement said a certain percentage (1.5%) and he had not received same, he could not be accountable if there was no such notch. He was not accountable if the system did not allow for the notch he should be on after the increase was applied. The Collective Agreement did not speak of notch, but rather of increment. The Respondent had deviated from the Collective Agreement. The union had informed him of the existence of defective notches.

Respondent’s case
Mr Sbonelo Ndlovu

Mr Ndlovu testified that he was a Senior Admin Officer in the performance management section of the Respondent. He had been with the Respondent since 2009. His understanding of the 1.5% pay progression increase is that it is 3 notches (In other words, 3 notches amount to 1.5%) and as such the Applicant’s notches were correct. He had not heard of defective notches. Notches were regulated by the DPSA, who usually issue same. The system would not allow for the notches the Applicant was claiming.
He was aware of a manual process where there were in between notches. The manual process was required as sometimes employees were in between notches, but even if done manually it was on a salary scale. It could not be on a non-existent notch. By in between notches he meant that their pay progression could not be paid automatically from the system and as such manual payment took place. He was not aware what happened if an employee went up 3 notches and it amounted to less than 1.5% as he had not had such a case.

ANALYSIS OF EVIDENCE AND ARGUMENT

The Respondent raises the following issues. Firstly, that the Applicant in fact received his 1.5% pay progression for the periods claimed. This can, in my view, be put to bed immediately. If one does simple math calculations as set out above (see paragraphs 12 and 13), it is clear that the pay progression received by the Applicant for the periods in question amounted to less than 1.5% of his annual salary prior to the said increases . The Respondent agreed that pay progression is 1.5% and that there is no room for deviation therefrom. It is either 1.5% or 0, nothing in between. It is not disputed that the Applicant received pay progression for the periods claimed, it is only the percentage thereof that is in question, as such, I accept that the Applicant indeed qualified for pay progression in the periods claimed and should then have received 1.5% of his annual salary prior to the said increase, which he did not.
Secondly, that the 1.5% pay progression amounts to 3 notches and that the Applicant was advanced by 3 notches. Having looked at ELRC Collective Agreement 2 of 2020 and PSCBC Resolution 1 of 2018, I can find no support for this contention. Paragraph 4, headed “Pay Progression”, of PSCBC 1 o 2018, reads: “Parties agree to the equalization of pay progression across the public service at 1.5% per annum to employees appointed in the public service in terms of the following legislation; Employment of Educators Act 76 of 1998 (as amended) …..” (Own underlining). There is no mention of notches or of the fact that the pay progression will equate to a 3 notch increase. It refers to percentage annually, which I accept to be percentage of the employee’s annual salary. I am accordingly of the view that if an employee qualifies for pay progression, he/she is entitle to a 1.5 % increase of his/her annual salary, as it stood prior to the increase.
Thirdly, the Respondent argues that PSCBC Resolution 1 of 2018 was for the periods of 2018/2019, 2019/2020 and 2020/2021. In other words it does not cover the periods of 2023 and 2024 as claimed. I find this strange. The Resolution deals with salary adjustments and improvements on conditions of service in the Public Service for the aforementioned 3 years/periods. Paragraph 3 sets out the annual increase percentage for the 3 years in question. Paragraph 4, of the said Resolution, deals with Pay Progression. It speaks of the equalization across public service at 1.5% (see paragraph 19 above).
The Resolution then goes on to deal with various other matters, such as leave, housing, etc. Paragraph 11 of the Resolution, headed: Implementation of Agreement, reads at 11.1 “This agreement shall come into effect on the date it enjoys majority support and shall remain in force unless terminated or amended by agreement in writing” (own underlining). In my view, from the above, although a 3 year period was dealt with in terms of annual increases, any terms of this Resolution, including the 1.5% pay progression, remain in effect until terminated or amended by agreement in writing. It is common cause that the 1.5% pay progression per annum is still in place (see paragraph 6.1 above). I am therefore satisfied that the 1.5% pay progression per annum was still applicable during the periods claimed. There is nothing before me indication that it had lapsed.
Fourthly, the Respondent raises and issue pertaining to the non-existence of salary notches at the scales/amounts claimed by the Applicant. In other words, there are no existing salary notches on the scales/amounts that the Applicant claims he should have been placed, if he had indeed received 1.5% pay progression. The Respondent argues that as a result of same, the salary scale claimed will in any event not be implementable. In my view, whilst the allocated notch system is the operational tool used to deal with salaries, increases, etc., such cannot override or be a reason for non-compliance with a Collective Agreement or Resolution. If the notch system does not have the required notch, once the agreed/required 1,5% pay progression increase is implemented, or after the implementation of any other percentage based increase, the employee cannot be held accountable for same.
Put differently, in my view, you cannot give the employee a lesser percentage on the basis that the system does not allow for the correct percentage. In my view, if the system does not have a notch, where the employee should be after the required percentage increase, the Respondent needs to accommodate same by either having the notch system amended to accommodate same, alternatively by using a manual process or by taking alternative measures it deems appropriate, in order to ensure that the employee receives the percentage increase he/she is entitled to.
In view of the above, I believe that on a correct interpretation of the abovementioned Collective Agreement and Resolution, the pay progression that the employee was entitled to was 1.5% of his annual salary at the time of the pay progression increase. It is clear that he received a lesser percentage and that same also affected his annual increase and bonus.
In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”

In view of all the above, I make the following award.

AWARD

The Respondent, the Department of Education: KZN, failed to comply with ELRC Collective Agreement 2 of 2020 read with PSBC Resolution 1 of 2018, by giving the Applicant, Mr Peter Sutton, pay progression increases in 2023 and 2024 that amounted to less than the required 1.5% of his annual salary at the time.This also affected the Applicant’s annual increase in April 2024 as well as his bonus in December 2024 detrimentally.
As a result of the above, the Respondent is accordingly ordered to pay the Applicant the amount of R2901.47, in back pay/underpayment for the period of July 2023 to March 2025. (See breakdown of said amount at paragraph 14 above).
The Respondent must pay the amount, in paragraph 27 above, to the Applicant by no later than 30 September 2025.
The Respondent must take the necessary measures to ensure that the Applicant is placed on the correct annual salary after the 1.5% pay progression for 2023 and 2024 as well as the annual increase of 2024 and any subsequent increases have been correctly implemented.