In the ARBITRATION between: –

ZINYANE S.
Applicant
And

DEPARTMENT OF EDUCATION, EASTERN CAPE

Applicant’s representative: Adv B. Metu instructed by Nongogo Guzana Inc
Applicant’s Address: Nongogo Inc Attorneys, East London
Telephone: 0437265131
Telefax 043-7265358
E-mail nkosinathi.guzana@nongogoguzana.co.za
Respondent’s Representative: Mr T W Hena
Respondent’s Address Department of Education, East London
Telephone 0737516756/0848213734
Telefax
E-mail walterhena@gmail.com
DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration on the 16th August 2019 and 9th October 2019 at the Department of Education Offices at East London Institute in East London.

2. The Applicant was represented by Advocate B. Metu, instructed by Nongogo Guzana Inc based in East London, and the Respondent was represented by Mr TW Hena who is the Labour Relations Officer of the Respondent.

3. The party representatives requested and it was directed that they submit written heads of closing arguments with the Applicant having to submit their arguments on the 16 October 2019, Respondent on the 20th October 2019 and the Applicant to submit their reply on the 21st October 2019. The Respondent submitted their arguments on the 20th October 2019 but the Applicant only submitted theirs on the 24th October 2019 after I have particularly asked the ELRC to remind them.

4. The proceedings were recorded in a digital audio tape.

ISSUES TO BE DECIDED

5.1 Whether or not the Respondent correctly interpreted and applied clause 3.13 of ELRC Collective Agreement 5 of 2007.

5.2 Whether or not the Applicant should be remunerated at the salary range of the Deputy Chief Education Specialist for the period of secondment from 1st January 2008 to date.

5.3 Whether or not the Applicant should be absorbed to the post of Deputy Chief Education Specialist.

BACKGROUND TO THE ISSUE

6. The Applicant was employed as the Lecturer and later an HOD at Buffalo City TVET College since April 1996.

7. In about 2007 there was a restructuring at the TVET Colleges which necessitated that employees must choose if they wanted to remain being employees of the Colleges or chose to be employed by the Provincial department.

8. The Applicant chose to be placed at the Provincial Department of Education and he was attached at the Curriculum Section of the East London District. He was made to be responsible for the subjects; Civil Technology (which includes Construction, Woodwork and Civil Services) and Engineering and Graphic Designs. He believed the duties he was doing were those ordinarily done by the Deputy Chief Education Specialist(DCES).

9. ELRC Collective Agreement 5 of 2007 provided guidelines and process on how those who chose to be in the Department were to be absorbed. Applicant believes that the Collective Agreement was not adhered to by the Respondent.

10. The relief the Applicant is seeking is the enforcement of ELRC Collective Agreement 5 of 2007 and for the Applicant to be remunerated at the level of DCES with effect from the 1st January 2008 when he was seconded to the position. He also wants to be absorbed to the position of the DCES at salary level 10.

SURVEY OF EVIDENCE AND ARGUMENT

11. The Applicant party submitted two bundles of documents labelled AP1 and AP2. Applicant further led evidence through two witnesses.

12. The Applicant further submitted an Actuary report which was to be submitted as part of closing arguments. Respondent allowed this report to be presented at this late stage indicating that that they will accept it as it purports to be. However, they were allowed a period of three (03) days to study the report before submitting their heads of argument.

13. The Respondent submitted two bundles of documents labelled as RE1 and RE2. They further led evidence through three (03) witnesses.

APPLICANT’S EVEDENCE AND ARGUMENT

14. The witness of the Applicant, Ms Phumla Hako, was presented as the expert witness. She testified that she was the registered Industrial Psychologist. She was given a mandate by the attorneys of the Applicant to establish the loss of income of the Applicant.

15. As part of carrying out her mandate she had a series of consultations with the Applicant and obtained several documents from the Applicant.

16. When looking at the career pathing of the Applicant, she established that the pathing stagnated in 2007 when the restructuring at the TVET Colleges started.

17. When the Applicant was made to choose where he wanted to be during the restructuring he chose to be with the Provincial Department of Education and he was placed in the Buffalo City District at the Curriculum Management section. In his area of work, the Applicant was working with DCES’s and was the only one who is the Head of Department(HOD).

18. The Applicant was doing the work of the DCES but did not enjoy the benefits associated with the position and was not given tools of trade in order for him to discharge his responsibilities, like other DCES’s. Though he was doing the same work as other DCES’s but he was paid as the HOD.

19. Whenever the Applicant raised his concerns with relevant officials of the Respondent he was always told that he was not employed in the post and was therefore not entitled to the benefits.

20. The secondment caused uncertainty as his performance reviews are sometimes done by Mr Kutu and sometimes by Mr Postman.
21. The Applicant was overseeing the subject Civil Technology under which there are two subjects; Woodwork and Civil Services. What he was doing for his subjects was the same Mr Kutu and Mr Postman were doing for their subjects.

22. In the performance agreement the job classification is not a true reflection of his responsibilities as in terms of his duties his level was equivalent to the DCES.

23. The Applicant’s Key Result Areas entailed travelling to schools and he has to make telephone calls.

24. The argument of the Respondent that if the Applicant is placed at the position of DCES would be tantamount to promotion would not be fair because the Applicant is not remunerated for the work he is doing.

25. If the confusion caused by the secondment of the Applicant had not taken place he would have been placed as the DCES and received increments as the DCES. The increments he received over the years have been at a lower variance than it would have been had he been placed as the DCES.

26. At the time of the secondment he was earning R165 000 and the DCES was earning between R236 076 and R464 400.

27. The Applicant suffered loss of income during the placement. The loss was the difference between what he earned and what he was supposed to earn. She believed that the Applicant should be compensated for the loss of income and be compensated for performing a job at a level of the DCES.

28. He believed that if it can happen that the Respondent does not have a vacant DCES post the Respondent will have to decide what to do with the Applicant who was doing the job for free.

29. Responding to the version of Mr Kutu (for the Respondent) that the Applicant was not performing the duties he said he was performing, the witness said what she said was what was presented to her by the Applicant. She also could not speak on behalf of other HODs who may come to the Respondent demanding that they be placed as DCESs, as her only client was the Applicant.

30. On the version of other Respondent witnesses that the Applicant will skip a level if placed in the post of DCES, she said the Applicant was allowed to skip a level when it comes to performance but in terms of proper placement she is said to have skipped a level. She said the secondment of the Applicant needs to be done away with and that he be properly placed.

31. She also believed that the Resolution supersedes any practice and if the practice is unfair it needs to be corrected.

32. The Applicant, Simbongile Zinyane, testified that when there was restructuring of the TVET Colleges he chose to remain with the Department.

33. Referring to Item 3.13 of ELRC Resolution 5 of 2007 he read the procedure that was supposed to be followed for employees who chose to remain with the Department. He said the Respondent did not comply at all with Item 3.13 of the Resolution.

34. He also referred to the Settlement Agreement which was part of the bundle. The employees listed in the agreement were all seeking placement.

35. Referring to the secondment letter he said that his status remained that of the HOD and that status was confusing as he was not heading any department. He was doing the duties of a higher post(DCES) with the lower remuneration(HOD) since 2008.

36. Since 2008 he has been doing the Key Result Areas contained in his performance agreement and he had to use his cellphone and his car with no remuneration. His performance ratings indicated that the Respondent was satisfied with his performance. He also indicated in the performance reviews that he needed a subsidized vehicle to do his job properly.

37. When he joined the district he was supervised by Mr Postman but since February 2019 he was supervised by Mr Kutu. Mr Kutu was responsible for Technical Mathematics and Technical Sciences.

38. He referred to the Memorandum written by the then Acting Head of Department of the Eastern Cape Department of Education which directed that the employees who were to be placed in the Department should compile Employment Profiles and submit them to the district, which in turn was going to submit to the Head Office Human Resource Section of the Department. In response to the memorandum he completed the Employment Profile document but still there was nothing done by the Respondent. He was currently not remunerated according to the duties he was performing.

39. The Respondent did not discharge their responsibilities in terms of Item 3.13 of ELRC Resolution 5 of 2007.

40. There was a time when he applied for the post of an Education Development Officer(EDO) but he did not succeed. But since then no posts have been advertised that are relevant to his expertise.

41. ELRC Collective Agreement 5 of 2007 applied to him and he wanted a relief that he be placed permanently in accordance with his Key Result Areas and quarterly reviews and also in line with his employment profile.

42. In terms of ELRC Collective Agreement 3 of 2017 there is no provision for the HOD at the district office. The DCES’s in the district office were doing their jobs and his(Applicant’s) placement will not push away anybody.

43. Referring to the version of the Respondent that if he is placed as DCES that will be tantamount to promotion, he said he was doing the duties currently and is not being paid.

44. He was forced to used his cellphone when out in schools because then he does not have access to the office landline. The government vehicles were not always available.

45. He was verbally offered a post of SES by the Curriculum Head in the district and he(Applicant) referred her to his employment profile which was in the Labour Relations Office. He responded to the verbal offer in a letter he wrote to the Curriculum Head but she never reverted back to him.

RESPONDENT’S EVIDENCE AND ARGUMENT

46. The first Respondent witness, Mr Sivuyile Owen Kutu, testified that he worked as the DCES for Manufacturing, Engineering and Technology at the Buffalo City Metro District.

47. He started working with the Applicant in 2017 when the King Williams Town District merged with the East London District. He was previously based in King Williams Town and his counterpart in East London was Mr Postman. When the two districts merged he found out that the Applicant had a strength in Construction.

48. The way the subjects are organized in the structure of the department both Nationally and Provincially is that there is a DCES for Electrical and Mechanical Engineering and another DCES for EGD and Civil Engineering.

49. At the district they agreed that the Applicant was going to work with him (Applicant), then he did not know his rank.

50. Referring to the performance agreement of the Applicant he stated that the Key Result Areas are the indicative of areas of performance. Monitoring is the responsibility of the SES and DCES.

51. He testified that he was not responsible for Technical Science and Technical Mathematics (as Applicant testified) but was responsible for Civil Technology, which the Applicant said he was responsible of. The subjects Technical Mathematics and Technical Science did not have a DCES as they are new subjects. Each district was directed to appoint someone to be in charge of the subjects on a temporal basis (babysit the subjects). He was babysitting the subjects in the district.

52. When he (Mr Kutu) arrived at the district he found the Applicant working with Mr Postman as the Subject Advisor(SES). He continued to work with the Applicant with the Applicant working as the Subject Advisor.

53. Their work included visiting schools for support and the Applicant is responsible for Construction. When shown the reports compiled about some schools he confirmed that the reports were compiled by the Applicant and that after the reports have been compiled they do a follow up support to solve identified challenges at the schools.

54. He acknowledged that in the district organogram there is only the SES and DCES and no HOD.

55. Referred to the organizational structure of the department he said the Respondent was still using the old organizational structure as the new one was still being negotiated on. According to the old organogram there is only one post of DCES in the section, and no SES. This is because there are few schools doing the subjects in the district.

56. Mr Neil Miles, who is the Principal Personnel Officer, testified that in Human Resource terms absorption is a process where an employee is translated to a similar rank where the salary is also matching.

57. If the Applicant wanted to be placed in the post of DCES he must wait for the advert and apply. If a person does not have an appointment letter he cannot lay claim on the post.

58. Referring to the PERSAL printout of the service record of the Applicant he said the Applicant was in Post Level 2 and salary level 8 but over the years he progressed and in 2013 he progressed to salary level 9.

59. The current salary range of the Applicant is lower than that of the DCES and to place him in that post would be tantamount to promotion.

60. He acknowledged that the Respondent did not comply at all with ELRC Collective Agreement 5 of 2007. Respondent also failed to comply with the memorandum written by the then Head of Department (Superintendent-General) of the Department which gave a directive that the employees, including the Applicant, must be correctly placed.

61. He further acknowledged that it would be fair to remunerate a person for the work he has done but the person must have been authorized to do the work. He also acknowledged that it was not fair not to place employees in positions.

62. Ms Funeka Gysman, who is the Assistant Director for Human Resource Management, testified that absorption is the horizontal transfer of an employee without a change in conditions of service. The Applicant was employed as an HOD and his salary level is lower than that of the DCES. To place him as the DCES would constitute a promotion.
63. She testified that the basis for the Respondent to oppose the application was the differences in salary levels and his duties. She however, acknowledged that she did not know what the duties of the Applicant were and whether the Applicant was remunerated according to his responsibilities.

64. She could not account as why Mr Postman at some stage signed the Performance Agreement of the Applicant whereas the Applicant according to her reported to Mr Kutu. She said she was not aware of internal arrangements in the section.

65. She admitted that she was aware of the Settlement Agreement according to which the timeframes of the collective agreement were extended. She also acknowledged that the Respondent did not adhere to the timeframes contained therein.

66. The witness then gave the salary scales of the HOD, SES and DCES as they were in 2008 and as they are currently.

ANALYSIS OF EVIDENCE AND ARGUMENT

67. The dispute was determined at conciliation and at the pre-arbitration meeting that it was a dispute on the interpretation and application of the collective agreement in terms of section 24 of the LRA. At arbitration after parties have led evidence I also determined that the dispute is indeed about the application of the collective agreement.

68. The main issue in dispute is therefore the application of ELRC Collective Agreement 5 of 2007, in particular Clause 3.13. The clause reads as follows:
(a) The procedure in respect of employees who elect to remain with the Old Employer shall be:
(i) The Old Employer shall publish a list of possible vacancies by 7 September 2007;
(ii) All affected employees must exercise their choice by 30″‘ September 2007:
(iii) During the month of October 2007, the Old Employer shall, based on the requirements of the posts and in terms of experience. profile and qualifications of the employee, match and possibly place employees against these vacancies;
(iv) Employees electing to remain with the Old Employer and who are not covered by the matching and placement process have to apply for posts as advertised in a closed vacancy list that would be published by the Provincial Education Department during the last quarter of the financial year 2007/8 (1st January 2008 to 31 s’ March 2008);
(v) The filling of posts would be conducted in terms of the applied rules and procedures as set Out in ELRC Resolution 5 of 1998 (PAM): and
(vi) Employees who for one or other reason could not be absorbed by either the matching and placement process or could not obtain appointment through the closed vacancy list absorption process may be offered an employee initiated severance package (Annexure A) by 31st March 2008.

(b) Procedure in respect of employees who elect to make no choice shall be:
(i) Such employees shall be automatically transferred from the Old Employer to the New Employer in terms of the FETC Act as from 1st January 2008.

69. The Applicant led evidence, which was not disputed, that the Respondent failed to apply the collective agreement, in particular clause 3.13. The failure of the Respondent to lead evidence in dispute about this factual information leads me to conclude, as I do now, that the version is a fact.

70. In terms of section 23(1) of the LRA a collective agreement binds the parties to the collective agreement. Section 28(1)(b) of the LRA further provides that it is the duty of the bargaining council to enforce collective agreements that it has concluded.

71. The Respondent are bound by ELRC Collective Agreement 5 of 2007 and it is the responsibility of the ELRC to enforce the collective agreement.

72. I respectfully agree with the witness of the Applicant, Ms Hako, that the failure of the Respondent to apply the collective agreement brought depression, hardship and uncertainty on the Applicant and may have possibly affected his morale.

73. The failure of the Respondent to apply the collective agreement also led to an unfair secondment of the Applicant for a period of eleven (11) years. I respectfully agree with the Applicant in arguments that the action (or non-action) of the Respondent was seriously prejudicial to the Applicant.

74. However, when it comes to the long delay the hands of the Applicant are not completely clean because he only referred the dispute in May 2018, which is about ten (10) years after the resolution was passed.
75. Since his secondment, the Applicant was performing work which is beyond his scope of appointment as the HOD.

76. In terms of the Personnel Administrative Measures(PAM) the general duties of the HOD are;
To engage in class teaching, be responsible for the effective functioning of the department and to organize relevant/related extra-curricular activities so as to ensure that the subject, learning area or phase and the education of the learners is promoted in a proper manner.

77. On the other hand, the responsibilities of the Applicant as captured in the performance agreement of the period from 1st April 2018 to 31st March 2019 read together with the Work Plan Agreement for the period from 1st April 2016 to 31st March 2017, included the following;
• Monitor and support Curriculum coverage through on-site visits.
• Manage and coordinate examinations and Assessment strategies in the subject field
• Facilitate the management of the implementation of the curriculum policies(CAPS)
• Assist SMTs and Teachers in the setting of School Improvement Plans and monitor interventions
• Ensure the schools have all the requisite curriculum and assessment documents for the subjects.
• Coordinate the establishment of subject committees.
• Support underperforming schools through multiple team visits.

78. It needs to be stated that the Work Plan Agreements and Performance Agreements and their Key Result Areas were agreed to by the Applicant and his supervisors and confirmed by signatures of both.

79. It was evident from the evidence led by the Applicant witnesses that the failure by the Respondent to comply with the collective agreement led to a situation where the Applicant found himself having to face uncertainty since his secondment in 2008, having to do work that he is not employed to do and being deprived of benefits associated with his responsibilities.

80. In his evidence the Applicant testified that he was doing the work of the DCES and therefore sought to be remunerated at that level. The evidence of the Applicant was backed up by the structure(table) submitted by the Applicant and contained on page 124 of their bundle. In terms of this table and the evidence of the Applicant Mr Kutu was responsible for Technical Mathematics and Technical Science with the Applicant being responsible for Civil Technology and EGD.

81. This was disputed by the witness of the Respondent, Mr Kutu, who testified that he, Mr Kutu, was responsible for Civil Technology and EGD and he was babysitting Technical Mathematics and Technical Science since the two subjects are new subjects and not yet catered for in the organizational structure of the Respondent. He testified that he was babysitting them over and above the two subjects he was employed for i.e. Civil Technology and EGD. During cross-examination Mr Kutu was not shaken in his version.

82. Mr Kutu further testified that he professionally related to the Applicant as the Subject Advisor(SES) and his responsibilities were that of the SES. In his evidence Mr Kutu indicated that they were working together with the Applicant. This may have been incorrectly interpreted by the Applicant as meaning they were doing the same thing. Chief Education Specialists(CES), Senior Education Specialists(SES) also have a responsibility of doing support visits to schools (in terms of Collective Agreement 4 of 2017). Visiting and providing support to schools together does not necessarily mean that you are at the same level.

83. The Key Performance Areas of the DCES and those of the SES as they are contained in ELRC Collective Agreement 4 of 2017 overlap more specially when it comes to on-site support to schools, utilization of resources and information services and information and collaborative work to improve learner performance in schools. This overlap however does not mean that the DCES is in the same level as the SES. This overlap and collaborative working may have created an impression on the mind of the Applicant that he was doing the same work as the DCES.

84. The rank or designation of the official is determined, among others, through the level of accountability, reporting lines and the value of the work done.

85. In all the documents submitted in the arbitration and the oral evidence led it can be discerned that the Applicant reported to and was accountable to the DCES (firstly Mr Postman and later Mr Kutu). You cannot report to the DCES if you are the DCES or you are doing the duties of the DCES.

86. Besides stating it, the Applicant did not lead evidence to indicate that the value of the work he was doing equaled that of the DCES.

87. The closer assessment of the Key Result Areas of the Applicant, as contained in his Work Plan Agreement and Performance Agreements(submitted) reveals that they blend more with the Key Performance Areas of the Senior Education Specialist(SES) as they are contained in ELRC Collective Agreement 4 of 2017.

88. It is my finding that the Applicant did not adduce sufficient evidence to support his contention that since 2008 his duties were equivalent to those of the DCES. Even if my finding was different the relief sought particularly in 5.3 would enjoin me to encroach into the realm of the Respondent as the employer, and that would amount to me exceeding my powers.

89. The actual agreement part of the collective agreement states thus;
Having regard to what has been stated above. the parties agree, as set out hereunder, to effect the transfer of the employees as defined in terms of the Employment of Educators Act and who perform the managerial and lecturing functions, from the Old Employer to the New Employer in terms of the FETC Act and with specific regard to section 197 of the LRA.

90. The principles of the collective agreement are captured as;
• Such transfer and absorption of employees shall be carried out in a fair, equitable and transparent manner;
• The transfer and absorption of employees shall be subject to this agreement.

91. The key words in the agreement are ‘transfer’ and ‘absorption’. In the ‘definitions’ section of the collective agreement the transfer is defined as the change of employer by operation of the law, namely, section 197 of the LRA. Absorption is not defined in the collective agreement but the witnesses of the Respondent, Ms Gysman and Mr Miles, testified that ‘absorption’ is the horizontal transfer of the employee without a change in conditions or a placement into a post which is equivalent to the post the employee occupied before the transfer. Their version was not challenged even during cross examination. I also accept their interpretation of the concept.

92. I believe that if the drafters of the collective agreement have envisaged a situation of a promotional transfer they would have been explicit with that in the collective agreement. That being not the case my interpretation of the collective agreement is that the collective agreement only provided for the horizontal transfers and absorption of the employees affected by the collective agreement.

93. To award a vertical (upward mobility) transfer would then be against the object and the spirit of the collective agreement.

94. In closing arguments, the Applicant made an application for the award of litigation costs. The constitution of the ELRC provides that a panelist can award legal costs to a party only if all the parties to the dispute were represented by legal practitioners. In this dispute the Respondent was not represented by the legal practitioner, and therefore the issue of costs cannot be considered. In the circumstances I make the following award.

AWARD

95. The Respondent is ordered to comply with the clause 3.13 of ELRC Collective Agreement 5 of 2007(read with the changes required by the context) within thirty (30) days from the date of receipt of this award.

96. There is no order as to costs.

Mbulelo Safa: ELRC Panelist