CCMA told to pay ex-commissioner it tried to ‘dribble’ out of correct salary

The Commission for Conciliation, Mediation and Arbitration, usually called on to make rulings in employment disputes, has found itself on the wrong side of an arbitration award after it tried to “dribble” a former employee out of his correct new salary.

Franklin Ngcaba, a former commissioner, approached the labour court in Cape Town after he claimed he was underpaid during his short stint as a full-time commissioner.

He was initially hired as a part-time commissioner for the CCMA from July 1 2017 for a six-year term ending on June 30 2023. He then successfully applied for a conversion to a full-time position, effective from December 1 2020. He also applied to be transferred from the commission's Cape Town regional offices to Johannesburg. This is where the dispute started.

Ngcaba earned about R740,000 per annum in his former part-time role — that's if he worked an average of 21 working days at a rate of R2,939 per day. This translated to about R61,000 a month.

“Ngcaba started work as a full-time commissioner and on December 15 was paid his first salary as such. The payroll authorisation form described his current job title as a part-time commissioner and his new job title as full-time commissioner, with both jobs being designated on [the same] job grade,” judge Robert Lagrange summarised.

“The annual package on his salary slip for that month was R615,376, which translated to a monthly salary of R51,281 per month. Ngcaba claims it was only when he saw his salary advice that he realised what his remuneration was and was surprised to see he was not earning a level-6 salary but was being paid on a lower grade.”

This despite him having received separate letters signed by the commission's director a month earlier. One confirmed that his application for a transfer had been approved from the effective date. The other confirmed his change in employment status.

“The transfer letter stated that 'all terms and conditions of your current contract remain unchanged'. The other letter confirmed that his conversion from a part-time to a full-time commissioner had been approved with effect from the same date and that he would 'shortly be provided with a full-time commissioner contract to this effect'.

“In his testimony, [CCMA human resources manager] Mathebula noted that the conversion letter made no reference to Ngcaba’s conditions remaining the same but referred to a contract which was still to be issued.

“While Ngcaba agreed with this, he claimed the transfer letter mentioned this when it said 'all other terms and conditions of your current contract remain unchanged'.”

The CCMA argued all that meant was when a commissioner moved to another region, their “job status remained unchanged” and the letters he got were “standard template letters issued by the CCMA” in such instances.

Ngcaba testified he was unhappy with the fact that he was now earning less than what he got as a part-time commissioner. When he flagged this, he was told it was due to “fiscal constraints”. 

“He said he had left Cape Town earning 'above R615,376.15' knowing he would be earning 'not less' than what he used to earn, or alternatively earning at [a] level which entailed an annual salary package of R738,028.

“He disputed the suggestion he was simply asking the CCMA to improve his salary. Rather, he wanted it to rectify it and pay him what he was entitled to. Ngcaba’s claim he mostly worked for the CCMA and only worked a couple of days a month for two bargaining councils was not disputed.”

While Ngcaba eventually signed the new contract and assumed his full-time position, he referred his dispute to the CCMA itself and then later the labour court.

Lagrange eventually ruled in favour of Ngcaba, ordering the CCMA to pay him R176,174. “[This] being the aggregate difference between the remuneration he received as a full-time commissioner and what he should have been paid for the period December 1 2020 until February 11 2022 if he had been paid the correct salary of R63,866 per month.”

The CCMA was also ordered to pay his costs, including of counsel.

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