The dispute centred on the promotion to principal in January 2010.
Image: Meta AI
The Labour Court in Johannesburg has ruled against a teacher's attempt to revive a long-standing salary dispute with the Department of Education, citing the claim was filed too late.
Lungelo Aaron Mbili approached the Labour Court to review and overturn two rulings issued by the Education Labour Relations Council (ELRC).
The dispute centred on his promotion to principal in January 2010.
He argued that although he was promoted, his salary remained at level 8 instead of moving to level 9. Mbili claimed this amounted to an unfair labour practice in the form of a demotion and sought outstanding salary for the period from January 2010 to June 2015.
He was later promoted again in June 2015 to a post at salary level 10.
However, the dispute was only referred to the ELRC on 1 July 2024 - nearly nine years after the alleged underpayment had ended.
During arbitration, the commissioner raised concerns that the dispute had not been referred within the 90-day time limit required by labour law.
Mbili argued that the underpayment was a “continuing wrong”, stating that each month he received an incorrect salary created a fresh cause of action.
The commissioner rejected this argument and ruled that the bargaining council lacked jurisdiction because the referral was late and no condonation application had initially been filed.
Mbili later applied for condonation, but the application was refused.
The commissioner found that he had provided no explanation for failing to refer the dispute earlier - either during the 2010-2015 underpayment period or in the years that followed.
In the Labour Court, Judge Suzanna Josephine Harvey confirmed that the test for reviewing the jurisdiction ruling was whether it was correct, while the condonation ruling was assessed on reasonableness.
The court found that the alleged unfair labour practice ended in June 2015, when Mbili was promoted and paid at salary level 10.
Although Mbili argued that the earlier underpayment continued to affect his pension and benefits, the court held that these were merely consequences of the earlier conduct — not a continuing demotion.
Because the dispute was referred in 2024, the court ruled that it fell well outside the 90-day period, and that the bargaining council therefore lacked jurisdiction in the absence of condonation.
On the condonation issue, the court held that the nine-year delay was excessive and remained unexplained. The commissioner’s refusal to grant condonation was therefore reasonable.
Although the Department of Education sought costs, the court declined to award them, noting that labour matters do not automatically follow the result and that the applicant’s conduct was not frivolous or abusive.