IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC858-23/24NW

In the matter between

Nkosi Isaac Applicant

And

DHET – Orbit College Respondent

ARBITRATION AWARD

The venue of Arbitration: Orbit College – Rustenburg

Date: 25 June 2025

Parties present:

Arbitrator: Mr C Khazamula

Applicant: Mr I Nkosi (Late) and Family representatives
Applicant representative: Mr S Ramaru & K Mothekwane – Numsa

Employer’s Representative: Mr S Mbutho – Orbit College Labour Relations

DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair labour practice dispute referred to in terms of section 186 (2) (a) of the Labour Relations Act, 66 of 1995, related to benefits and Part C of the Council’s constitution to the ELRC (“the Council”).
2. The dispute was set down for arbitration before me on 01 May 2024, 04 June 2024, 13 September 2024 and 09 June 2025 at the Respondent’s offices.
3. Both Parties were represented and changed representatives. I shall elaborate on the dates and names of these representatives in the background including issues that are common cause to the Parties.
4. The proceedings were digitally recorded.

ISSUE(S) TO BE DECIDED

5. It was a common cause that the Respondent did not dispute the Applicant’s allegation of unfair labour practice against the Applicant. I, therefore, do not have anything related to the dispute except the Applicant’s compensation.
6. The relief sought by the Applicant was a compensation.
7. BACKGROUND TO THE ISSUE
8. The Applicant was appointed by Orbit Collect which was transferred to the Department of Higher Education and Training (“the Respondent”) in August 2012 in the capacity of a Senior Lecture on salary level PL 2. The
9. The Applicant was underpaid by the Respondent and referred a dispute of Unfair Labour Practice to the Council.
10. I was thereafter appointed to arbitrate the dispute.
11. On 8 May 2024, the Applicant was represented by Mr M Mogalane – a Nehawu official and Mr S Hadebe – the Respondent’s official. During the arbitration proceedings, parties expressed a desire to settle the dispute although they met for the first time.
12. The matter was adjourned with further directives to the Parties to exchange the bundle of documents, hold the pre-arbitration conference and sign the minutes thereof or the Applicant should withdraw the dispute if the dispute was settled.
13. The arbitration was scheduled again on 04 June 2024. During the arbitration proceedings, the Respondent agreed to settle the dispute.
14. The Respondent committed to calculate the difference in the salary levels to be paid to the Applicant and draft a submission to the Respondent’s Director General (“the DG”) for approval. The Parties agreed that the process would be concluded on or before 04 August 2024.
15. Parties further agreed that if there was a dispute about the calculations or if the submission of the DG was not approved, the Applicant reserved the right to request a date of arbitration. If the calculations are agreed to and the DG approves the submission then the Applicant will withdraw the dispute.
16. On 13 September 2024, the matter was again scheduled for arbitration. The Respondent was represented by an official not assigned to the Applicant’s dispute by the Respondent to apply for postponement.
17. The arbitration was postponed and I issued a directive aimed at resolving the dispute since the calculation was the only issue to be finalised. I further issued a directive to the Parties to argue the cost against the Respondent for failure to comply with the Council’s rules of postponement for the date of 13 September 2024. Parties failed to submit the heads of arguments as directed and I will decide on the issue later in the award.
18. The matter was further scheduled on 09 June 2025. The Applicant was represented by Mr S Ramaru – Nehawu office bearer and the Respondent was represented by M S Mbutho – official of the Respondent. The Applicant’s family representatives (The wife, son and daughter) formed part of the proceedings because the Applicant passed on 03 April 2025.
19. I wish to take this opportunity on behalf of the Council to extend our deepest condolences to the family of Mr Isaac Nkosi. May his soul rest in eternal peace.
20. The Respondent submitted a three-page document labelled “Historic TVET Pay Progression Calculating Tool” (“the Respondent’s calculations”). This document contained a history of the Applicant’s pay progression calculations. It was agreed by the Parties that this document and its contents including the figures are a common cause.
    SURVEY OF EVIDENCE AND ARGUMENT

The Respondent’s Testimony and Evidence

21. The Respondent did not dispute the alleged unfair labour practice against the Applicant as a result the Respondent did not tender any evidence or call witnesses.
22. The Respondent submitted the Respondent’s calculations as a true reflection of what was owed to the Applicant. The total amounts owed to the Applicant were confirmed as follows: R225 590.50 , R336 618.25 and R9261.25 .
23. The Respondent’s calculation commenced on 15 April 2015, which was the date when Orbit College was transferred to the Department of Higher Education and Training (DHET). This excluded the date that the Applicant was appointed by Orbit College as a Senior Lecturer.

The Applicant’s Testimony and Evidence

24. The Applicant’s representative confirmed that the Respondent’s calculations as submitted by the Respondent are agreed to by the Applicant and therefore are a common cause to the Parties.

ANALYSIS OF EVIDENCE AND ARGUMENTS

25. It was a common cause that the Respondent committed an act of unfair labour practice after the Respondent failed to pay progress the Applicant’s salary following his appointment as a Senior Lecture at salary level PL 2, on 1 May 2013.
26. The Respondent’s calculation and its contents including the figures are a common cause to the Parties.
27. I, therefore, find that the Respondent committed an act of unfair labour practice related to benefits after the Respondent failed to pay progress the Applicant’s salary. I further find that the Respondent should pay the Applicant a total amount of R571 470.00.
28. I further find that in the interest of justice, I should not order costs against the Respondent for failure to comply with the Council’s rules related to the postponement of the arbitration on 13 September 2024.

AWARD

29. I, therefore, issue the following award;

29.1. The Respondent committed an act of unfair labour practice related to benefits against the Applicant.
29.2. The Respondent is ordered to pay the Applicant, a total amount of R571 470.00, as per the Respondent’s calculations on or before 31 July 2025.
29.3. The money must be paid in the deceased estate’s account” which must be provided to the department on or before 31 July 2025.
29.4. There is no order to cost
29.5. The ELRC is directed to close the file.

Chance Khazamula
ELRC Panelist
Date: 25 June 2025