PSES 430-13/14 EC
PSES 430-13/14 EC
Award Date:
2 March 2014
Case Number: PSES 430-13/14 EC
Province: Eastern Cape
Applicant: NAPTOSA obo S Krause & 3 Others
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Port Elizabeth
Award Date: 2 March 2014
Arbitrator: Jonathan Gruss
ARBITRATION
AWARD
Panellist/s: Jonathan Gruss
Case No.: PSES 430-13/14 EC
Date of Award: 2 March 2014
In the ARBITRATION between:
NAPTOSA obo S KRAUSE & 3 OTHERS (Applicant)
and
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
Applicant’s representative: Mr Saayman
Applicant’s address: PO Box 34700
Newton Park
Port Elizabeth, 6055
Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Mr Pillay
Respondent’s address: Private Bag x 3931
Port Elizabeth
6056
Telephone: (041) 4034423
Telefax: (041) 403 4588
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 23 of the ELRC Constitution : Negotiation, Consultation and Dispute Resolution Procedures
Annexure B (Collective Agreement No.1 of 2006). The hearing was held at the District Office, Ethel Valentine Building, Sutton Road, Port Elizabeth on 27 February 2014 and the proceedings were electronically recorded. The Applicants, Sade Krause,
Samantha Jo-Anne Friskin, Selwyn Edgar Nel and Wesley Blignaut were represented by Mr Saayman, a NAPTOSA shop steward. The Respondent, Department of Education – Eastern Cape was represented by Mr Pillay, an Assistant Director:
Labour Relations.
ISSUE TO BE DECIDED
2. A dispute concerns the alleged non-payment of salaries and 37% in lieu of benefits to the Applicants for the period 1 September 2012 to 31 December 2012
BACKGROUND TO THE ISSUES
3. The following facts were agreed to between the parties as common cause.
3.1 The individual Applicants were on 31 August 2012 appointed as Temporary Educators, post level 1 with the 2012 post establishment with effect from 1September 2012 in terms of Section 7 of the Employment of Educators Act 1998. They all were
issued appointment letters.
3.2 All the Applicants were in service of the Respondent as Temporary Educators, post level 1 for the period 1 September 2012 to 31 December 2012. They all worked and tendered their services. Ms Krause and Mr Blignaut worked at Sanctor High
School and Ms Friskin and Mr Nel worked at Astra Primary School.
3.3 Ms Krause and Ms Friskin have subsequently been permanently appointed as Educators and Mr Blignaut and Mr Nel are employed currently as substitute educators.
3.4 Ms Krause, Persal Number 55786529 and Ms Friskin, Persal Number 55796508 was supposed to have earned a basic salary of R15432.00 per month. Mr Blignaut, Persal number 50356593 was supposed to have earned a monthly basic salary of
R20 188.00 and Mr Nel, Persal number 50224808 was supposed to have earned a basic monthly salary of R11667.75.
4. The Applicants seek an order directing the Respondent to pay them their basic salaries and 37% in lieu of benefits for the period September 2012 to December 2012.
5. The Respondent’s response (Mr Pillay) was that the issue of the non-payment of the Applicants arose after the Applicants received letters of appointment from the Head of Department. The appointment letters were sent directly to the schools where
the Applicants rendered services. The necessary documentation was forwarded during June to August 2013 to the Provincial Office for payment. No explanation could be given for the default in payments to the Applicants.
SURVEY OF EVIDENCE AND ARGUMENT
6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. Clause 14.2.3 of Annexure “B” of ELRC Resolution 1/2006 provides that subject to clause 14.3, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 23 regarding any dispute concerning a contract of
employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 14.5.
9. Clause 23(1) provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
10. Clause 23(2) also provides that a Collective Agreement of the Council is deemed to include:
10.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and
10.2 subject to clause 14.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
11. Clause 23.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
12. Clause 23.6 provides that a panellist, conducting arbitration in terms of this clause 23 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
13. Clause 23.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
14. Section 32(3) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended provides that an employer must pay remuneration no later than seven days after the completion of the period for which the remuneration is payable.
15. In terms of Clause 11.3 of PSCBC Resolution 1 of 2007, a contract worker means a person employed for a fixed term, including an educator employed in a temporary capacity, by excluding a casual worker or an employee to whom a retirement age
applies.
16. Clause 11.4 of PSCBC Resolution 1 of 2007 provides that the benefits attached to the appointment of a contract worker shall be granted on the following basis, a contract worker employed for less than six months shall receive his / her basic salary
plus 37% in lieu of benefits, excluding leave benefits. A contract worker employed for six months or longer shall receive his basic salary plus benefits (excluding leave benefits) or his/her basic salary plus 37% in lieu of benefits (excluding leave
benefits).
17. Considering the concessions made by the Respondent and documentation presented during the arbitration, the Applicants were entitled to be paid for the period they were appointed as Temporary Educators. They should have been paid for the period 1 September 2012 to 31 December 2012. They were further also entitled to be paid monthly an additional 37% in lieu of benefits.
AWARD
18. The Respondent, the Department of Education: Eastern Cape is in breach of Section 32(3) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended for not paying the Applicants their basic salaries for the period 1 September 2012 to
31 December 2012. The Respondent is also in breach of Clause 11.4.1 of PSCBC Resolution 1 of 2007 for not paying the Applicants their monthly basic salary plus 37% in lieu of benefits, excluding leave benefits for the period 1 September 2012 to
31 December 2012.
19. The Respondent, the Department of Education: Eastern Cape is ordered pay the Applicants as follows the following amounts:
19.1 Ms Sade Krause, Persal Number 55786529 an amount of R84 567.36 (R15 432.00 [basic] + R5 709.84 [37%] x 4 months)
19.2 Ms Samantha Jo-Anne Friskin, Persal Number 55796508 an amount of R84 567.36 (R15 432.00 [basic] + R5 709.84 [37%] x 4 months)
19.3 Mr Selwyn Edgar Nel, Persal number 50224808 an amount of R63 939.28 (R11 667.75 [basic] + R4 317. 07 [37%] x 4 months)
19.4 Mr Wesley Blignaut, Persal number 50356593 an amount of R110 630.24 (R20 188.00 [basic] + R7 469.56 [37%] x 4 months)
20. The amounts as referred to in paragraph 19 above are to be paid to the respective Applicants within 30 days from date this award is served on the Respondent.
_______________________
Name: Jonathan Gruss
(ELRC) Arbitrator
Province: Eastern Cape
Applicant: NAPTOSA obo S Krause & 3 Others
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Port Elizabeth
Award Date: 2 March 2014
Arbitrator: Jonathan Gruss
ARBITRATION
AWARD
Panellist/s: Jonathan Gruss
Case No.: PSES 430-13/14 EC
Date of Award: 2 March 2014
In the ARBITRATION between:
NAPTOSA obo S KRAUSE & 3 OTHERS (Applicant)
and
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
Applicant’s representative: Mr Saayman
Applicant’s address: PO Box 34700
Newton Park
Port Elizabeth, 6055
Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Mr Pillay
Respondent’s address: Private Bag x 3931
Port Elizabeth
6056
Telephone: (041) 4034423
Telefax: (041) 403 4588
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 23 of the ELRC Constitution : Negotiation, Consultation and Dispute Resolution Procedures
Annexure B (Collective Agreement No.1 of 2006). The hearing was held at the District Office, Ethel Valentine Building, Sutton Road, Port Elizabeth on 27 February 2014 and the proceedings were electronically recorded. The Applicants, Sade Krause,
Samantha Jo-Anne Friskin, Selwyn Edgar Nel and Wesley Blignaut were represented by Mr Saayman, a NAPTOSA shop steward. The Respondent, Department of Education – Eastern Cape was represented by Mr Pillay, an Assistant Director:
Labour Relations.
ISSUE TO BE DECIDED
2. A dispute concerns the alleged non-payment of salaries and 37% in lieu of benefits to the Applicants for the period 1 September 2012 to 31 December 2012
BACKGROUND TO THE ISSUES
3. The following facts were agreed to between the parties as common cause.
3.1 The individual Applicants were on 31 August 2012 appointed as Temporary Educators, post level 1 with the 2012 post establishment with effect from 1September 2012 in terms of Section 7 of the Employment of Educators Act 1998. They all were
issued appointment letters.
3.2 All the Applicants were in service of the Respondent as Temporary Educators, post level 1 for the period 1 September 2012 to 31 December 2012. They all worked and tendered their services. Ms Krause and Mr Blignaut worked at Sanctor High
School and Ms Friskin and Mr Nel worked at Astra Primary School.
3.3 Ms Krause and Ms Friskin have subsequently been permanently appointed as Educators and Mr Blignaut and Mr Nel are employed currently as substitute educators.
3.4 Ms Krause, Persal Number 55786529 and Ms Friskin, Persal Number 55796508 was supposed to have earned a basic salary of R15432.00 per month. Mr Blignaut, Persal number 50356593 was supposed to have earned a monthly basic salary of
R20 188.00 and Mr Nel, Persal number 50224808 was supposed to have earned a basic monthly salary of R11667.75.
4. The Applicants seek an order directing the Respondent to pay them their basic salaries and 37% in lieu of benefits for the period September 2012 to December 2012.
5. The Respondent’s response (Mr Pillay) was that the issue of the non-payment of the Applicants arose after the Applicants received letters of appointment from the Head of Department. The appointment letters were sent directly to the schools where
the Applicants rendered services. The necessary documentation was forwarded during June to August 2013 to the Provincial Office for payment. No explanation could be given for the default in payments to the Applicants.
SURVEY OF EVIDENCE AND ARGUMENT
6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. Clause 14.2.3 of Annexure “B” of ELRC Resolution 1/2006 provides that subject to clause 14.3, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 23 regarding any dispute concerning a contract of
employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 14.5.
9. Clause 23(1) provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
10. Clause 23(2) also provides that a Collective Agreement of the Council is deemed to include:
10.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and
10.2 subject to clause 14.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
11. Clause 23.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
12. Clause 23.6 provides that a panellist, conducting arbitration in terms of this clause 23 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
13. Clause 23.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
14. Section 32(3) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended provides that an employer must pay remuneration no later than seven days after the completion of the period for which the remuneration is payable.
15. In terms of Clause 11.3 of PSCBC Resolution 1 of 2007, a contract worker means a person employed for a fixed term, including an educator employed in a temporary capacity, by excluding a casual worker or an employee to whom a retirement age
applies.
16. Clause 11.4 of PSCBC Resolution 1 of 2007 provides that the benefits attached to the appointment of a contract worker shall be granted on the following basis, a contract worker employed for less than six months shall receive his / her basic salary
plus 37% in lieu of benefits, excluding leave benefits. A contract worker employed for six months or longer shall receive his basic salary plus benefits (excluding leave benefits) or his/her basic salary plus 37% in lieu of benefits (excluding leave
benefits).
17. Considering the concessions made by the Respondent and documentation presented during the arbitration, the Applicants were entitled to be paid for the period they were appointed as Temporary Educators. They should have been paid for the period 1 September 2012 to 31 December 2012. They were further also entitled to be paid monthly an additional 37% in lieu of benefits.
AWARD
18. The Respondent, the Department of Education: Eastern Cape is in breach of Section 32(3) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended for not paying the Applicants their basic salaries for the period 1 September 2012 to
31 December 2012. The Respondent is also in breach of Clause 11.4.1 of PSCBC Resolution 1 of 2007 for not paying the Applicants their monthly basic salary plus 37% in lieu of benefits, excluding leave benefits for the period 1 September 2012 to
31 December 2012.
19. The Respondent, the Department of Education: Eastern Cape is ordered pay the Applicants as follows the following amounts:
19.1 Ms Sade Krause, Persal Number 55786529 an amount of R84 567.36 (R15 432.00 [basic] + R5 709.84 [37%] x 4 months)
19.2 Ms Samantha Jo-Anne Friskin, Persal Number 55796508 an amount of R84 567.36 (R15 432.00 [basic] + R5 709.84 [37%] x 4 months)
19.3 Mr Selwyn Edgar Nel, Persal number 50224808 an amount of R63 939.28 (R11 667.75 [basic] + R4 317. 07 [37%] x 4 months)
19.4 Mr Wesley Blignaut, Persal number 50356593 an amount of R110 630.24 (R20 188.00 [basic] + R7 469.56 [37%] x 4 months)
20. The amounts as referred to in paragraph 19 above are to be paid to the respective Applicants within 30 days from date this award is served on the Respondent.
_______________________
Name: Jonathan Gruss
(ELRC) Arbitrator