In the ARBITRATION between:
NAPTOSA obo Akhona Mshumpela
(Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Adams
Email antona@naptosa.org.za
Respondent’s representative: Mr Tsheko / Mr Hena
Email: ncedisa.mgidlana@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 30 September 2020; 29 September 2021 and on 21 October 2021 and the proceedings were electronically recorded. The applicant, NAPTOSA obo Akhona Mshumpela referred an enforcement dispute to the ELRC. The applicant was represented by Mr Adams from NAPTOSA and the respondent, Department of Education: Eastern Cape were represented initially by Mr Tsheko and on 26 October 2021 by Mr Hena.
POSTPONEMENT REQUEST
2. When the matter continued on 21 October 2021, Mr Hena appeared on behalf of the respondent and indicated that his supervisor Mr Tsheko had requested him to seek a postponement. It was reported that Mr Tsheko’s brother had passed away on 14 October 2021 and he was attending to funeral arrangements. Mr Adams opposed the request for a postponement and argued that this matter had been postponed on numerous occasions previously. I declined the request for a postponement in that the respondent should have made alternative arrangements for someone to take over the case. The arbitration initially commenced on 12 August 2020, on the day, Mr Tsheko requested a postponement indicating that Mr Hena had been appointed to deal with the arbitration and he was off sick and therefore unavailable. The matter was scheduled thereafter for 30 September 2020 and the matter was against postponed in that the parties failed as instructed by me to hold a pre-arbitration conference and compile a pre-arbitration minute. The purpose of holding a pre-arbitration meeting was for the parties to verify the applicant’s qualifications and professional registration as well as to determine the exact amount that was due and owing to her.
3. My ruling for some or other reason did not reach the parties and the matter was therefore adjourned. This matter was again reconvened on 2 December 2020 and on the day, on the instance and request of the respondent, as confirmed by the applicant, a task team had been appointed to conduct an investigation and verify the qualifications of employees like that of the applicant with the view of resolving these type of disputes and a meeting had been arranged to held on 25 February 2021 where organized labour would participate. This matter was again reconvened on 4 March 2021 and on the day the respondent requested a 2 week indulgence so that the Director of HR could look into the applicant’s profile so that the applicant could be translated. When the matter reconvened on 29 September 2021 the respondent experienced technical challenges in participating in the arbitration due to network problems. It was agreed that the matter would be postponed to 21 October 2021 and that Mr Tsheko would participate utilising NAPTOSA’S Wi-Fi facilities at their East London office. The respondent’s stance from the onset is that they agree that the applicant must be translated and due to administrative reasons this was not happening.
4. Mr Hena indicated that he did not have a mandate to represent the respondent and was only authorised to seek a postponement. He then excused himself and matter proceeded on a default basis.
ISSUE TO BE DECIDED
5. This dispute concerns the refusal and or failure of the respondent to translate the applicant to Education Therapist Grade 2 in terms of ELRC Collective Agreement 1 of 2012.
APPLICANT’S EVIDENCE
6. The applicant testified under oath as follows:
6.1 She qualified as an occupational therapist in 2005 from the Medical University of South Africa (Medunsa) in 2006 and she started working for the Department of Health: Eastern Cape as an intern as a Community Service Occupational Therapist and in 2007 she was appointed as a Junior Therapist and in 2008 she was appointed as a Senior Therapist. Therefore, she was a junior therapist for 1 year and a senior therapist for 2 years. On 1 January 2009 she started working for the Department of Education Eastern Cape as a Senior Educational Specialist: Occupational Therapist and is currently employed at post level 3 salary level 9.
6.2 She registered with the Health Professional Council of South Africa (HPCSA) as a final year student in 2005 and in 2006 she registered as a community service occupational therapist and in 2007 she was registered as independent practitioner and she is still registered with the council as such.
6.3 In terms of ELRC Resolution 1 of 2012 she was supposed to have been translated in January 2012 to Educational Specialist Grade 2 and she was not translated.
6.4 In February 2016 the respondent advertised a number of Senior Educational Therapist posts with a more lucrative OSD salary scales and because she had not been translated she decided to apply for posts. After applying she was informed by the Chief Educational Specialist: Inclusive Education Ms Njontini from the head office that she was not going to be shortlisted for the post in that she was going to be translated from Senior Education Specialist to Education Therapist Specialist. There were others who were phoned and told that they also would not be shortlisted and they would be translated instead. As of date she has not been translated where others have.
6.5 She had referred the necessary documentation to the respondent so that she can be translated and had even physically drop off the necessary documentation as requested to the respondent’s head office and the district office. She physically handed documentation to Ms Grysman from the East London district office and to Ms Ntuli from the provincial head office.
SURVEY OF EVIDENCE AND ARGUMENT
7. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ARGUMENTS
8. It was submitted in written arguments by the applicant that she submitted numerous grievances to both the District and to the Provincial Labour Relations office. After months thereafter, the Labour Relations Section responded and she was informed that the HR Provincial Office was not conversant about the interpretation and implementation of OSD and as such, they would be attending a workshop planned for 13 to 14 June 2018. She was promised that they would call her for feedback after the workshop but she never received any feedback. The applicant also requests that her years of experience as an occupational therapist serving the Department of Education be recognised and she be remunerated accordingly. She seeks for the implementation thereof to be backdated.
9. It was not disputed that the respondent has failed to implement ELRC Resolution 1 of 2012 by not translating to applicant retrospectively as from 1 July 2010 and therefore the applicant has been prejudiced in that she had not been afforded opportunity to be remunerated as an Education Therapist Specialist Grade 2.
10. Clause 5.1.10.3 provides that the recognition of relevant experience of serving educational therapist, councillors and psychologists covered by this agreement shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from 1 July 2010 in terms of this agreement. Where such proof of experience is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was submitted by the employee.
11. It was argued that the respondent recognises the applicant’s experience in terms of clause 5.1.10.3 as per the inclusive education submission to the HR office submitted to HR to create this post. Furthermore, the failure by the respondent to implement the collective agreement as from 1 July 2010.
12. The applicant is employed in a management position of senior education specialist and seeks to be translated to an equivalent position of an education therapist grade 2 and a translation is the obvious resolution. She argued that she qualifies to be translated to Education Therapist Grade 2 in that she had as at 2012 when the collective agreement was signed 6 years’ experience as an occupational therapist after registration with the HPCSA. She therefore met compliance with educational qualifications, statutory requirements, prescribe training and competence contained in the Collective Agreement.
13. It was further argued that clause 5.1.10.3 does not mean that all occupational therapist must submit proof of relevant experience to the Department as they were employed there the entire career in education sector. As a business rule, it was argued as to implementation, the respondent should have verify the information (qualification, registration with HPCSA) by 7 November 2012. The respondent had failed to do so and is allegedly still in the process of verifying the information.
14. The business rules regarding the implementation of the resolution for employees employed under the Employment of Educators Act must be translated from their current post (in the applicant’s case (SES) to the appropriate posts, grades and salary scale provided for in terms of OSD taking into account their current duties and experience (service). It is also stated in the resolution that the OSD will be done in accordance with post (level) that an employer occupied on 30 June 2010.
15. Clause 3.2.2.5 of the business rules referred to the translation of education therapist and reads “current post 3 office- based Senior Education Specialist employed on or before 1 July 2010 must be translated as follows to the new OSD post and salary structures” and clause 3.2.2.6 indicates that paragraph 3.2.2.2 is also applicable to current office base post employed on or before 1 July 2010. Clause 3 .2.1.6 stipulates that deviations from the measures contained in the collective agreement are not permissible as it would constitute non-compliance with an agreement of the ELRC.
16. In conclusion, it was argued that the applicant should have been translated to the rank of Education Therapist Specialist Grade 2 office-based with the retrospect effect as from 1 July 2010 in terms of Collective Agreement number 1 of 2012.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. The entitlement based on the uncontested evidence and concessions made by the respondent was not in dispute and from the onset the blame was placed on administrative problems.
18. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
19. Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
20. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
21. Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
22. ELRC Collective Agreement number 1 of 2012 Occupational Specific Dispensation (OSD) was concluded and signed on 7 September 2012. The collective agreement introduce an occupation specific remuneration and career progression dispensation for education therapists in the public education. Under the definition section, grade progression is defined as the salary movement from one salary grade (gird) to the first salary notch of the next higher salary grade (scale) attached to a post. Pay progression is a salary movement from one salary notch attached to a salary grade (scale) to the next higher salary notch attached to the same salary grade [scale). Salary grade (scale) is the set of salary notches attached to particular salary grade (scale).
23. In terms of the objectives of the resolution is to give effect to paragraph 4 of PCBC Resolution number 1 of 2007, agreement on improvement in salaries and other conditions of service for the financial year 2007/2008 to 2010/2 2011. To introduce an occupation specific remuneration and career progression dispensation (OSD) for physiotherapist, speech therapists, occupational therapist (the after referred to as education therapist), councillors and psychologist employed in the public service. To provide within the OSD the career pathing opportunity based on competence, expertise and performance; pay progression within the limits of the relevant grades (scales) based on performance; grade progression, where applicable, based on performance; recognition of appropriate experience for the purposes of grade progression and recognition of performance for accelerated progression to higher grade and pay progression within the salary grade.
24. Clause 5.1.10.1 provides for the recognition of relevant experience and that this agreement provides a basis for the recognition of appropriate/relevant experience on appointment as provided in Annexure A3, B3 and C3 of the agreement.
25. Clause 5.1.10.2 provides for the salary position of a serving education therapist, counsellor and psychologist upon translation to the OSD is protected against that of a new education therapist, Counsellor and psychologist as provided for in Annexure A3, B3 and C3 (translation tables) of the agreement.
26. Whereas, clause 5.1.10.3 provides for the recognition of relevant experience of serving education therapists, counsellors and psychologists covered by this agreement shall be based on verified proof of such experience. Proof of such experience, where not available on the personnel record of an employee, must be submitted to the employer by 30 September 2012 in order to qualify for any recognition with effect from 1 July 2010 in terms of this agreement. Where such proof of experience is submitted after 30 September 2012, recognition for salary purposes, where provided for in the agreement, shall be with effect from the first day of the month following the month in which the proof was submitted by the employee.
27. Clause 5.1.12.1 further provides that the translation from the existing dispensation to appropriate salary grades (scales) attached to the OSD based on the principle that no serving education therapist’s, counsellor’s or psychologist’s salary position (notch or package) will be less favourable with the implementation of the revised salary.
28. The applicant seeks to be translated to the rank of Educational Therapist Specialist Grade 2 with retrospect effect from 1 July 2010. The applicant further seeks an order directing the respondent to pay her the difference between the remuneration and benefits she would have earned had the respondent translated her to the rank of Educational Therapist Grade 2 with effect 1 July 2010 to date before 31 December 2021. The amount owing according to the applicant in back pay includes per rata bonus amounts to R915160.00. The calculation based on information from PERSAL submit by the applicant reflects a salary audit as follows:
28.1 See Diagram
28.2 See diagram
29. 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.” (emphasis added)
30. I therefore make the following declaratory order.
AWARD
31. The respondent, the Department of Education: Eastern Cape is in breach of ELRC Resolution 1 of 2012 by not translating the applicant, Akhona Mshumpela to the rank of Education Therapist Specialist grade 2 with retrospect to 1 July 2010.
32. The respondent, the Department of Education Eastern Cape is hereby ordered to amend the applicant’s service records (PERSAL) to reflect the applicant’s translation to the rank of Education Therapist Specialist grade 2 with retrospect to 1 July 2010. This must be done by no later 31 December 2021.
33. The respondent is further ordered to pay the applicant an amount of R915160.50 subject to tax and other lawful deductions by no later than 31 December 2021, that being the difference between the remuneration and benefits he would have earned had the respondent translated him to the rank of Education Therapist Grade 2 with effect from 1 July 2010 to date as reflected in paragraph 28.1 and 28.2 above.
Name: Jonathan Gruss
(ELRC) Arbitrator