In the ARBITRATION between:

Dukashe, TC and others

(Union / Applicant)

And

Department of Education Kwa Zulu-Natal

(Respondent)

Union / Employee’s representative : Thapelo Malakoane, Attorney

Employer’s representative : Nontobeko Magoso, HR

Details of hearing and representation
1. The matter was set down for arbitration at the Department of Education, Umzinyathi District in Dundee, on 20 October 2021. The Applicants were represented by Thapelo Malakoane, an attorney, and Nontobeko Magoso from KZN DOE, represented the Respondent.

2. Thapelo Malokane produced 1 bundle of documents which was admitted and marked bundle B (B1-54) and Nontobeko Magoso produced 2 bundles which were also admitted and marked bundle A (A1-26) and bundle C (C1-130) respectively. The proceedings were conducted in English and digitally recorded.

Preliminary Issue
3. Nontobeko Magoso raised a point in linine which was ostensibly that 18 of the Applicants are no longer employed by the Respondent and that as a result their names should be removed from the list of the Applicants.

4. She submitted that 5 are deceased, 3 have retired, 6 resigned and that the contracts in respect of the remaining 4 Applicants expired, therefore there is no longer an employment relationship between them and the Respondent.

5. Thapelo Malokane objected and submitted that when the alleged unfair labour Practice occurred these Applicants were still employed by the Respondent and that it would be unfair to exclude them on the basis that the employment relationship has terminated in one way or another.

6. After considering the submissions from both parties I made an ex tempore ruling that in the interest of expedition and finality the matter should proceed on the merits to avoid any further delay. I took cognisance of the fact that the matter has already had many events and then ruled that this issue would be determined as part of the arbitration award.

Issue(s)to be decided
7. I must decide whether or not;
(a) The Respondent`s conduct constituted an unfair labour practice, and if so, what relief the Applicants are entitled to, and the quantification thereof;
(b) The 18 Applicants who are no langer employed by the Respondent should be included for the purposes of this arbitration award.

Background to the dispute
8. The Applicants were among 257 teachers whose schools from Jama Ward in the Zululand district were selected as eligible to receive rural incentives in 2010 in terms of the criteria set out in the Government Notice No. 30678 dated 18 January 2008.

9. Their case was that the incentives were abruptly stopped in 2012 and that their schools were removed from the list of schools eligible to receive rural incentives. Their circumstances in 2012 were the same as in 2010 in terms of the selection criteria except that there was a change of the regions. The change occurred when their schools were moved from the administrative control and jurisdiction of the Zululand district to the Umzinyathi district.

10. They contended that the change of the regions did not alter the physical location of the schools but that it only affected the reporting lines. They sought to be compensated from 2012 to date for the Respondent`s failure to pay them their incentives and further sought to be paid their incentives going forward.

11. The Respondent`s case was that in terms of an agreement reached between the Respondent and the labour component, the Applicants were not eligible to receive the incentives from 2012 and asked for the matter to be dismissed.

Survey of evidence and argument.
12. I am required in terms of section 137(7)(a) of the labour Relations Act (LRA) to issue an arbitration award with brief reasons. What follows hereunder is not an exhaustive survey of all the evidence and arguments presented but a summary of the salient aspects relevant to my findings only.

Applicants` evidence
Pillet Khumbulani Bhekinkosi Manqele testified as follows:
13. He is employed by the Respondent as a School Principal at Sicelimfundo Combined Primary School in Jama circuit, previously known as Babanango circuit.

14. His terms and conditions of employment are governed by The Employment of Educators Act as set out in the Government Notice No. 30678 dated 18 January 2008 (C12).

15. The Minister of Education (Grace Naledi Mandisa Pandor in this case) derived her powers to issue the Government Notice referred to, from section 4 of the Employment of Educators Act.

16. The Government Notice put forth measures relevant to the payment of incentives to educators in accordance with the criteria set out in paragraph 8.1 and 8.2 (C13).

17. The criteria in paragraph 8.1 focuses on Remote Schools in 4 categories, namely, Remoteness, Poverty, No-fee schools and combinations of other factors that are impacting negatively on the recruitment of teachers and suitable filling of posts.

18. Remoteness in this context means how far the school is situated from the nearest town. Such a town should have all the basic facilities and services that a teacher would need to have access to. The Head of Department should identity towns and determine the distance by road from each school to the nearest town.

19. With regards to Poverty, all schools are already ranked in terms of poverty criteria and divided into quintiles, quintile 1 being the 20% poorest schools and quintile 2 the next poorest 20%.

20. As for No-fee schools, all schools categorised as no-fee schools shall be prioritised. Combinations of other factors relate to factors that are impacting negatively on the recruitment of teachers and the suitable filling of posts, as already stated.

21. The criteria in paragraph 8.2 provides that some of the posts might be eligible for an incentive at schools that meet the criteria in 3 categories, namely, situated in difficult urban zones of the country (hard-to-teach schools), experiencing a chronic shortage of educators in certain subjects/learning areas (such as mathematics, sciences, ICT and some languages), and lastly where a school principal or governing body has requested that some posts at the school be eligible for an incentive. In this case the principal or governing body must be able to prove that it had not been possible to recruit a suitably qualified educator through the normal recruitment process (C14: Par 8.1(a) (b) (c) (d) and par 8.2.1 (a) (b) and (c)).

22. He stated that paragraph 8.2 does not create a new criteria and that if you meet one then the other does not apply. In the case of his school, Sicelimfundo Combined Primary, the school is remote and in terms of paragraph 8.1 the criteria is that as long as you are remote you are eligible for incentives.

23. He referred to a list of schools and google maps (C118 and C42 (11)) and explained that Isandlwana Primary School is 23.6km from Nquthu and that it is currently receiving rural incentives.

24. Mbewunye primary School is 11.4km from Nquthu and is currently receiving incentives
(C42 (12)).

25. Nhlalakahle Secondery School is 7.2km from Nquthu and is also receiving incentives.

26. Funulwazi Secondary school is 31.1km from Nquthu and is receiving incentives.

27. His school, Sicelimfundo Combined Primary, is 35km from Nquthu but is not receiving incentives (C41) and (C42(1)).

28. The Respondent is responsible for the allocation of quintiles. Abathwa Primary school is quintile 1, Bhekisizwe Secondary school is quintile 1. All of the Applicants` schools except Buhlebuyeza Primary school which is quintile 3, are quintile 1 (C34).

29. According to the eligibility criteria for incentives all of the Applicants` schools fall in the category of schools already ranked in terms of poverty criteria and further that being quintile 1, they are the 20% poorest schools. They are also no-fee schools (C14:8.1 (b)) and (c)).

30. From his practical experience if teachers get schools closer to town they just leave and go where they can access services, groceries and hospitals. In the case of schools in Jama circuit there are dirt roads and no water.

31. The Collective Agreement No.2 of 2014 certified by the GS that it was ratified by council on 4 April 2014 does not make mention anywhere that the purpose is to change the requirements of the rural incentives. Instead its purpose is to deal with challenges (18-21).

32. The Collective Agreement itself recognises the Government Notice and it does not intend to change it. In the Agreement the parties to the chamber note the need for a clear and coherent process to be used in conjunction with the provisions of the Determination Policy, in the identification of posts which are to receive incentive payments, thus achieving a greater degree of certainty and stability in the process of identification (C19:3.2).

33. He believes that “the distance of schools” is one of the issues or problems which arose in the implementation to achieve greater certainty.

34. The Agreement does not change the definition of “hard to teach schools”. It also does not say that hard to teach schools will no longer receive incentives (C20:4.4.1-4.4.3). It further does not say that remoteness is no longer a requirement.

35. He stated that the Collective Agreement is a guideline, it is not setting new rules and that the determination of rural incentives cannot be in terms of this Agreement but the Government Notice. The Minister of Education shall determine the salaries and other conditions of service of educators (B53:4.1).

36. During cross-examination he conceded that in terms of the Government Notice the HOD is the one who identifies towns to determine the distance.

37. He disputed that the rural incentives in KZN were dealt with through the ELRC Chamber. He conceded that he is bound by the decisions of the Unions.

38. He disputed that the task team is the one that identifies the hard to teach schools.

39. He admitted when it was put to him that he was aware that he was not going to receive the incentive as per a circular from the HOD dated 8 December 2011 and that he did not lodge a dispute and further that nothing prevented him from doing so.

40. He stated that they reported the matter to the Respondent and the Unions. When they followed up the Unions said that they were looking at the matter.

41. When it was further put to him that the decision was taken at the chamber where the Respondent and the Union sit, he reiterated that in terms of the Government Notice, only the Minister of Education can determine measures relevant to the payment of incentives.

Sithembiso Cornelius Dukashe, testified as follows:
42. He is employed by the Respondent as a School Principal at Buhlebuyeza Primary school which is classified as quintile 3. It was a mistake to classify the school as quintile 3 because all the other schools in the circuit are classified as quintile 1 and further that notwithstanding the classification the school did receive incentives.

43. He corroborated the evidence of Manqele with regard to the Government Notice and in particular in so far as it relates to the criteria set out in paragraphs 8.1 and 8.2 (C14).

44. He stated that Buhlebuyeza Primary is a very remote school. The community in the area relies on government grants. The roads are bad and there are no minibus taxis after 9H00. There is no water and the community relies on boreholes.

45. It is not a fee-paying school and in fact none of the Applicants` schools are fee-paying schools. Miss Nzuza from Durban was employed at the school but she left. At that time there was no electricity. On another occasion a teacher started in the morning but by 11H00 he was nowhere to be seen.

46. He further corroborated Manqele`s evidence with regards to Funulwazi Secondary school. The school is situated 31.1km from Nquthu. It is currently receiving incentives (C42 (9)). Hlalele primary school is 50km from Nquthu but is currently receiving incentives.

47. The closest distance from the nearest town of the schools that are currently receiving incentives is 7km whereas the closest distance from the nearest town of the schools that are not receiving the incentives is 28km.

48. He stated that something was wrong when a school that is situated far from the nearest town was eliminated from the list and a school that is closest to the nearest town was awarded the incentive.

49. In terms of the HRM Circular No.95 of 2011 the Respondent was supposed to utilise the criteria Remoteness, in selecting schools that were eligible for incentives. If this is the criteria that was used then his school should have continued to receive the incentives.

50. According to the Government Notice all schools are already ranked in terms of poverty criteria and divided into quintiles. In terms of this Government Notice his school should have continued to receive the incentives. Even the HRM circular No.95 of 2011 does not exclude them.

51. The ELRC Collective Agreement (C19-21) does not change, replace or supersede the Government Notice (C12-17).

52. The stoppage of further payments of incentives to their schools was item no. 4 on the agenda for a special meeting where the issue was discussed between the Respondent and the Unions. The invitation to the meeting was signed by S.W. Keswa, the Respondent`s representative. The meeting took place on 6 September 2019.

53. During cross-examination he admitted when it was put to him that the process was done through the KZN ELRC Provincial Chamber but stated that the parties were directed by the Government Notice, meaning that whatever they did they could not change the criteria set by the minister.

54. He also conceded that the issue of the budget was also considered and confirmed that it was mentioned that the implementation of the incentives would be subject to the availability of funds, and that the chamber will revisit the allocations due to budget constraints.

Mboneni Wiseman Guliwe testified as follows:

55. He is employed by the Respondent as a School Principal at Nhlabamkhosi Primary School. The school is 39KM from Nquthu. It is a no-fee school and classified as quintile 1.

56. It is remote, far from town and situated in a poverty-stricken area. He referred to the Government Notice (C14: 8.1 and 8.2) and to the HRM Circular (C2-9), corroborated the evidence of the previous witnesses and stated that their schools meet all the requirements to be eligible for the incentives.

57. He stated that the Collective Agreement no.2 of 2014 (c18-21) should be used in conjunction with the Government Notice. The Determination supersedes all other agreements.

58. Buhlebuyeza Primary School is the only school that is not quintile 1. None of the Applicants’ schools are less than 28km from the nearest town, Nquthu.

59. They experience difficulties with attracting and retaining teachers. Teachers prefer to stay and commute from the nearest town to the school. They come to the school tired and this affects their productivity.

60. When their incentives were stopped, they spoke to the Unions but nothing transpired. The Unions only told them that they were attending to the matter.

61. During cross-examination he confirmed that he is a member of a Union but disputed that he is aware that the issue of the incentives was discussed at the ELRC Chamber and that he is therefore bound by the decisions.

62. He stated that there was no correspondence or circular when they were disqualified and that they were disqualified in 2012 but the Collective Agreement is dated 2014.

63. When it was put to him that there were many schools that were on quintile 1 and that the decision was taken to take the poorest of the poor, he expressed his interest in the criteria that was used.

Respondent’s evidence
Soobamah Govender testified as follows:

64. She is employed by the Respondent as a deputy director in the HR department. She is responsible for policy development and implementation of Collective Agreements and procedural directives.

65. She was part of the task team which was dealing with rural incentives. In 2012 they had to relook at the criteria set out in the Government Notice because of challenges which arose during the implementation.

66. The criteria was too broad and merely referred to remote schools. Another challenge was that the national office had appointed an independent service provider to determine the distances between schools and the respective nearest towns. The service provider did not provide accurate information and its determination resulted in complaints from other schools.

67. They then decided to stop using distances to identify schools that were eligible for incentives in 2012. They looked at schools in terms of rural municipalities and which rural municipality had the highest number of quintile 1 schools.

68. She explained that whilst the amount allocated towards rural incentives has never increased, the salaries of the recipients of the incentives have been increasing.

69. The removal of the Applicants’ schools from the list was because of the HRM Circular no.95 of 2011 and not because they changed districts. It was necessary to review the criteria because it was a source of concern for many reasons e.g inaccuracy in the distances of schools from the nearest towns, the outdated list of schools in the database and the exclusion of deserving schools during the implementation.

70. The incentives are paid annually and every year the Respondent has to relook at the criteria. All schools are entering into a new contract every year. No schools in the KZN Province received incentives in 2020 – 2021.

71. She stated that the Applicants’ schools were not eligible to receive incentives in 2012. They did not look at the individual schools but at the circuit and the municipality where they are. She referred to a table of the revised strategy for the payment of educator incentives (A13).

72. The selected schools to receive incentives from 1 January 2012 are categorized according to the municipality, district, circuit and quintile 1.

73. During cross-examination she stated that she has no evidence to the contrary when it was put to her that no school falls within the Nquthu Circuit as indicated in the table (A13) because Nquthu operates as a circuit management centre.

74. She confirmed that the Applicants’ schools were within the Jama Circuit and that the only circuit referred to in the table is Nquthu and hence the Applicants did not qualify for incentives.

75. She further confirmed that Mkhonjane Primary School is currently receiving incentives and that it does not fall within the Nquthu but the Mkhonjane Circuit.

76. She conceded that it is unfair for Nhlalakahle High School to be receiving incentives when it is only 7.2km from the nearest town when a school which is 28km and more from the nearest town is not receiving incentives.

Closing arguments
Applicants’ argument

77. Thapelo Malokane argued on behalf the Applicants that the only reason proffered by the Respondent for its non-payment of rural incentives to the Applicants is that, whilst they fall within the Umzinyathi District, a district which has been identified to have a high number of quintile1 schools, they do not fall within the circuit of Nquthu.

78. As clearly demonstrated, no schools fall within the circuit of Nquthu. Nquthu is a circuit management centre servicing a number of circuits surrounding it.

79. There is no dispute that all the schools save for Buhlebuyeza Primary School are quintile 1 and that they are no-fee schools. Therefore, the Applicants meet all the requirements for rural incentives.

80. The Respondent conceded that there are schools within the Umzinyathi District which are very close to the nearest town whilst the Applicants’ schools are very far from the nearest town. The Respondent further conceded that this is unfair.

81. The Respondent further conceded that they decided to disregard paragraph 8.1(a) of the Government Notice no.30678 as they found it difficult to comply with.

82. He submitted that the Respondent’s failure to comply with its own policy has prejudiced the Applicants, and it is unfair in that people who would not qualify for incentives if the Respondent complied with its policies, are receiving these incentives whilst the Applicants are not.

83. He further submitted that the Respondent must be ordered to pay the Applicants compensation in the sum equivalent to one (1) year’s remuneration calculated at the rate of pay applicable for their current year of service. He submitted that payment must be in accordance with annexure A attached which contains details of the Applicants, and also submitted that the Respondent must be ordered to pay the Applicants their incentives going forward.

Respondent Argument

84. The Respondent did not file its closing arguments.

Analysis of evidence and argument

85. In terms of section 186(2)(a) of the Labour Relations Act, unfair Labour Practice means unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to benefits or the provision of benefits to an employee.

86. The employee bears the onus of proving the allegation, and the question whether the employer committed an unfair Labour Practice, is an objective, factual enquiry. It is not enough that the employee alleges an intention on the part of the employer, the unfair act must have already taken place.

87. In Apollo Tyres SA(PTY) Ltd v CCMA and others (2013) 34 ILJ 1120(LAC), the court held that the definition of benefits included rights judicially created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.

88. In the present case I examined the oral evidence presented and duly perused the bundles of documents and annexures submitted. It is common cause that the Applicants’ schools were selected as eligible and received rural incentives in 2010 and 2011 before they were stopped in 2012. It is further common cause that the rural incentives in this instance constitute a benefit.

89. The first issue that I must determine arising from the preliminary issue raised by the Respondent is whether the 18 Applicants who are no longer in the employ of the Respondent should be considered for the purposes of this arbitration award.

90. I will deal with this issue with reference to the principle espoused in Sithole v Nogwaza NO and others [1999] 20 ILJ 2710 (LC) and to Magoshi v Gauteng Department of Education and others (2019) 40 ILJ 168 (LC).

91. In the former the court held that the jurisdiction to entertain disputes involving alleged unfair conduct in relation to provisions of benefits may not be entertained if the conduct complained of occurred after the termination of the employment contract. An unfair Labour Practice can only be committed during an existing relationship between employer and employee.

92. In the latter the court held that an employee may, however, pursue a claim of unfair Labour Practice after his/her services were terminated provided that the alleged unfair Labour Practice occurred during the period that the employee was employed.

93. In the present case it is common cause that when the payment of rural incentives was stopped in 2012, the said Applicants were still employed by the Respondent and that they were part of the subsequent referral to the council, emanating from the alleged unfair Labour Practice which occurred during the period that they were employed.

94. It is therefore my ruling, based on the principles espoused in the cases referred to in paragraphs 91 and 92, that the 18 Applicants and/or their next of kin have a substantial interest in the subject matter of the proceedings and that they should be, and are therefore hereby included for the purposes of this arbitration award.

95. The primary issue in dispute is whether or not the Respondent committed an unfair Labour Practice as defined in section 186(2)(a) of the Labour Relations Act, when it stopped the payment of rural incentives to the Applicants in 2012.

96. The Applicants’ case is based mainly on the Government Notice no.30678 dated 18 January 2008 which established a criteria in terms of which a school would be identified to be eligible for incentives. The criteria is set out in paragraph 8.1 and 8.2 of the Government Notice. Paragraph 8.1 refers to Remote Schools and paragraph 8.2 refers to Other Schools.

97. They vigorously challenge the Collective Agreement no.2 of 2014 which in their view sought to amend the criteria established in the Government Notice. Their contention is that this Collective Agreement is incapable of superseding the Government Notice and that the departure from the criteria set out in the Government Notice resulted in them being disqualified from receiving the incentives.

98. The Applicants called 3 witnesses, namely Manqele, Dukashe and Guliwe who testified and corroborated the evidence of each other and their evidence briefly summarised was that when their schools were selected as eligible and received incentives in 2010 and 2011, it was because they met all the requirements in terms of the Government Notice.

99. Their schools are remote, the distance between the closest school to the nearest town being 28km. They are no-fee schools and quintile 1 except 1 school, Buhlebuyeza Primary, which is quintile 3. The schools are situated in poverty-stricken areas which have no basic services. As a result they struggle to attract and retain teachers.

100. In spite of them qualifying and meeting all the requirements for incentives, the payment was abruptly stopped in 2012. When they were disqualified, other less deserving schools were awarded the incentives. They mentioned Nhlalakahle Secondary School as an example. Nhlalakahle Secondary is 7.2km from the nearest town. They claimed that this was because of the Respondent’s departure from the criteria set out in the Government Notice.

101. The Respondent called 1 witness, Soobamah, whose evidence briefly summarised was that the criteria “Remoteness”, which was utilised in identifying schools for the payment of the incentives in 2010 was too broad and it became a source of concern because of the inaccuracy in the distances of schools from the nearest towns which resulted in the exclusion of deserving schools.

102. They then decided to look at schools in terms of rural municipalities and which rural municipality had the highest number of quintile 1 schools. They also grouped the schools according to districts and circuits.

103. She conceded that it is unfair for a school which is 7.2km from the nearest town to be receiving incentives whilst a school which is 28km from the nearest town is not receiving.

104. Her evidence was also that the schools enter into a new contract every year and that the Applicants were notified through the HRM Circular no.95 of 2011 that they would not receive the incentives in 2012. She also testified that the incentives are subject to the availability of funds and that the chamber revisits the allocations due to the budget constraints. She added that no schools in the KZN Province received incentives in 2020 and 2021.

105. After evaluating the evidence and arguments presented, I took cognisance of the fact that the decision was taken collectively as part of collective bargaining. In AMCU and others v Royal Bafokeng Platinum LTD and others, the LAC held that the regulation of the workplace and employment contracts is left to the parties to agree upon. It held that as part of the trade-off collective agreements are given priority and that this is so because collective bargaining is essentially geared towards concluding collective agreements. It further held that collective agreements are so important in the scheme of the Act that they are allowed to trump the provisions of the Act.

106. Section 31 (a) and (c) of the LRA provides that a collective agreement concluded in a bargaining council binds the parties to the bargaining council who are also parties to the collective agreement. It further provides that a collective agreement binds the members of a registered trade union that is a party to the collective agreement.

107. The evidence established that the Applicants are members of trade unions that are part of the chamber and parties to the collective agreement no.2 of 2014. In Fakude and Others v Kwikot (PTY) Ltd, the LC reiterated the principle that a Trade Union has authority, in terms of section 200 of the LRA to take decisions to settle disputes on behalf of all its members without necessarily obtaining the members’ prior consent, even if the terms of the settlement agreement were to the detriment of the minority of the members.

108. In these circumstances it is my finding on a balance of probabilities that the Applicants are bound by the collective agreement concluded by their unions and that the Council has no jurisdiction because the decision was taken collectively as part of collective bargaining, and therefore there is no merit in their claim.

I therefore make the following award

Award

109. The ELRC does not have jurisdiction.

110. The application is dismissed.

111. I make no order as to costs.