IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY AT CAPE TOWN
Case Number ELRC57-24/25WC
In the matter between:
L. MANAN
Applicant
And
DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This matter was scheduled for arbitration on 12 June 2024 and 28 August 2024 on a virtual platform. The applicant represented himself. The respondent was represented by Ms. A. Petersen, Labour Relations graduate and also Mrs V. Vearey, a labour relations officer on the second occasion.
2. Parties were afforded until 4 September 2024 to submit closing arguments in writing. The respondent’s closing arguments had been submitted to the ELRC by 9 September 2024 and received by me on 10 September 2024 I read it and proceeded to finalise the award.
THE ISSUE IN DISPUTE
3. I must decide whether the respondent perpetrated an unfair labour practice in relation to the reduction of the applicant’s salary when appointing him on a second contract of employment in January 2024.
THE BACKGROUND TO THE DISPUTE
4. The applicant worked for the respondent as a technical teacher from January 2023. He was so employed at the Florida School of Skills in Ruiterwacht with a gross salary of R27,957.59 per month.
5. When he was appointed in January 2024 it was with a gross monthly salary of R17,372.28.
6. At the outset of proceedings one, Peter Koorbanally founding member and chairman of Better Community Health SA applied to represent the applicant. The application to represent was declined as Mr. Koorbanally does not meet the requirements for representation as provided for in terms of the ELRC Dispute Resolution Procedures.
7. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
SUMMARY OF EVIDENCE AND ARGUMENT
8. Each party submitted a bundle of documents into evidence. No objections to the documents were recorded.
9. The applicant testified under oath on his own behalf and also called Koorbanally as a witness who also testified under oath.
10. The respondent called as witnesses who testified under oath Shamielah Abrahams (Abrahams), a human resources practitioner, Mr. Tshepo Mabasa(Mabasa), an assistant director in the Department of Higher Education and Training (DHET) Ms. Bernadette Catherine Tawtaw(Tawtaw), deputy director in service benefits.
The evidence for the applicant
11. His salary for 2024 was less than that of 2023 and the applicant submitted a grievance in respect thereof.
12. When the applicant did not get a response to his grievance he referred this dispute to the ELRC.
13. As the procedures in deducting his money were not correct, it prompted him to make enquiries. Monies were deducted from his salary without his having been given a reason.
14. It is illegal in terms of section 34 of the Basic Conditions of Employment Act (BCEA) to deduct monies from his salary without following a fair procedure.
15. The applicant demands that the salary he initially contracted for be restored and that the respondent be ordered to follow a proper procedure when implementing deductions from his salary.
16. Under cross examination the applicant disputed that it was communicated to him that his salary had been reduced because he was not a qualified teacher.
17. When he had applied for the job the requirements were a trade certificate. He had received the advertisement by Whatsapp.
18. When it was put to him that he was lying as there had never been an advertisement for an unqualified teacher he said it had been advertised by the school not the department.
19. The evaluation certificate from the department of higher education at page 5 of the respondent’s bundle is not his as his name does not have a letter “G” in it.
20. The identity number depicted thereon however is his. It also depicts 5 months of N4, but also does call for an equal qualification.
The evidence for the respondent:
21. Abrahams testified that the applicant was unqualified as he has only experience and a trade test certificate. He did not have an N3 or N4 qualification equivalent of a matric certificate.
22. The applicant’s salary is determined according to the trade test he had and his experience. The salary that he qualified for was REQV 12 special and not the REQV 13 which had had been paid.
23. When Abrahams became aware of this she forwarded his qualifications to the Department of Higher Education and Training(DHET) for evaluation
24. It was returned and confirmed the applicant as an unqualified educator.
25. The evaluation certificate from the DHET shows he only has the trade test and 5 months’ experience.
26. Mabasa confirmed that the policy for recogntion and evaluation of qualifications was applied in casu.
27. The HDET evaluated the qualifications of the applicant submitted to it. There was no N3 certificate attached to the submissions. It was also found that the applicant did not have a matric certificate nor any N4 vocational certificate.
28. It was found that the applicant had 5 months’ trade experience and had a trade test.
29. The outcome was that he was an unqualified educator to be remunerated at RQV 12 special. Tataw confirmed that upon its being established that the applicant was unqualified and ought not to have been remunerated at RQV 13 he was correctly then remunerated on RQV 12 special in his contract of employment for 2024.
30. As the matter was still being dealt with in terms of this arbitration the respondent had not yet made any deductions from the applicant’s salary in order to recover the overpayments made in terms of the Personnel Administrative Measures (PAM).
31. Upon conclusion of the arbitration the respondent will notify the applicant of the deductions to be made from his salary.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
32. It is clear from the evidence presented at this arbitration that the applicant has referred this matter as one of an unfair labour practice pertaining to benefits.
33. I must point out at the start of this analysis that the allegation of the applicant in respect of Section 34 of the BCEA which deals with deductions from salaries is misplaced or premature as I will show below.
34. I arrive at this conclusion as the matter is clearly in respect of a reduction of the applicant’s salary and not deductions from it.
35. This reduction, the evidence shows, was clearly done in terms of the peremptory provisions in the PAM and in terms of which the respondent is obliged to correct the applicant’s salary in respect of money erroneously paid to him (S12.1). It is to be noted that the said peremptory provisions of the PAM do not require notification to the educator to whom it applies.
36. In this regard I am satisfied that the respondent has shown through the documentary evidence and testimony of its witnesses, Abrahams and Mabasa, that the applicant was not a qualified educator as per the government gazette.
37. The respondent has furthermore shown that the applicant had been incorrectly remunerated at the RQV 13 level.
38. The respondent was therefore obliged to correct the applicant’s alary in the manner that it did when entering into the new employment contract for 2024.
39. The respondent cannot therefore be said to have perpetrated an unfair labour practice benefits as provided for in S186(2)(a) of the LRA.
40. In respect of the applicant’s contention of monies having been unlawfully deducted from his salary in contravention of Section 34 of the BCEA the evidence shows that there had not yet been any deductions made from his salary in respect of the respondent’s recouping the overpayment of salary to the applicant.
AWARD
41. The conduct of the respondent in reducing the salary of the applicant in his 2024 contract of employment does not constitute an unfair labour practice.
01 October 2024