PSES162-16/17
PSES162-16/17
Award Date:
31 August 2016
Case Number: PSES162-16/17
Applicant: SAOU obo Danielle Stander
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Port Elizabeth Department Education District office
Award Date: 31 August 2016
Arbitrator: Raymond Jonathan
Case Number: PSES162-16/17
Commissioner: Raymond Jonathan
Date of Award: 31 August 2016
In the ARBITRATION between:
SAOU obo Danielle Stander (Union/Applicant)
And
Head of Department: Department of Education- Eastern Cape (1st Respondent)
Pearson High School: School Governing Body (2ndRespondent)
Applicant’s representative: Ms E Hart
Applicant’s address: Cotswold Office Park No 4
21 Barton Road
Port Elizabeth
6045
Telephone: 041 364 0500
Telefax: 086 679 5692
E-mail: elreneh@saou.co.za
Respondent’s representative: Mr LN Mpati (respondent 1&2)
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313 / 086 255 1741
DETAILS OF HEARING AND REPRESENTATION
1. An Unfair Labour Practice dispute relating to benefits was scheduled for Arbitration in terms of section 186(2) of the Labour Relations Act, No 66 of 1995, as amended (herein referred to as the ‘”LRA”). The hearing was concluded at the boardroom of the Port Elizabeth Department Education District office in Port Elizabeth on 15 August 2016. The proceedings were digitally recorded. The Applicant, Danielle Stander was represented by Ms E Hart a union official from South African Teachers Union (SAOU). The respondent, Head of Department: Department of Education – Eastern Cape and Pearson High School: School Governing Body was represented by Mr L Mpati a Labour Relations Manager in the employ of the respondent.
ISSUE TO BE DECIDED
2. I am required to determine whether the Head of Department: Department of Basic Education – Eastern Cape has committed an Unfair Labour Practice in terms of benefits by not remunerating the applicant and pay her the employee benefits which she became entitled to from the date of appointment.
BACKGROUND TO ISSUE
3. At the commencement of the proceedings the Applicant submitted her appointment letter as a post level 1 educator. This document was not disputed by the respondent. The following were also agreed as common cause facts:
3.1. The applicant was appointed as a post level 1 educator at Pearson High School on 2 February 2016.
3.2. The applicant was not paid any remuneration or benefits from her date of employment.
3.3. The applicant requested that I find that the respondent has committed an unfair labour practice and award her outstanding salary and benefits.
3.4. The parties agreed that there will be no need to call witnesses since all facts regarding this dispute are common cause. The parties will make oral submissions.
4. The onus is on the applicant to establish that an unfair labour practice was committed against him.
SURVEY OF EVIDENCE AND ARGUMENT
5. Section 138(7) (a) of the LRA require a brief summary of evidence presented and reasons be relevant to the dispute. The following does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE AND ARGUMENT
6. The applicant, Daniele Stander submitted that she was appointed by the respondent as a post level 1 educator at Pearson High School and that she commenced employment on 1 February 2016. She did not receive any salary from the date of her appointment. She also did not receive any benefits like medical aid and housing subsidy to which she became entitled too since the date of her appointment. Her none payment also implies that she did not receive a salary advice which she could submit to financial institutions which require it. Although she receives an advance on her salary from the School Governing body, she was of the view that she are being prejudiced by the respondent due to none payment of her salary and benefits. The applicant requested that the respondent be compelled to pay her all outstanding salaries and her employment benefits
RESPONDENT’S EVIDENCE AND ARGUMENT
7. The respondent representative conceded that the dispute relates to the non-payment of the applicant’s salary and benefits. He also conceded that the applicant was appointed as a post level 1 educator at Pearson High School on 1 February 2016 and that the applicant was not paid her salary or benefits since her appointment date.
8. The respondent representative argued that the salary of the applicant was not paid by the employer due to a post which needed to be created on PERSAL system. He however conceded that the amount due to the applicant in terms of salary was R114 492 -00 and R43 362-00 in lieu of benefits (37% of outstanding salary). He submitted that the aforementioned amount was based on the non-payment of salary and benefits from 1 February 2016 until 31 July 2016.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. The applicant referred an unfair labour practice dispute alleging that the respondent committed an unfair labour practice towards her when it failed to pay her salary and benefits to which she became entitled to form 1 February 2016.
10. All the facts related to the dispute are common cause. It is common cause that the applicant was appointed as a post level 1 educator at Pearson High School on 1 February 2016. It is also common cause that the respondent did not pay the applicant her salary or benefits which she became entitled to from her date of appointment and commencement of duties. It is also common cause that the amount due to the applicant amounts to R 156 854-00 which includes her outstanding salary of R 114 492-00 and R42 362-00 in lieu of benefits from 1 February 2016 until 31 July 2016.
11. Section 186 (2) (a) of the Act reads as follows:
‘Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving
a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;’
12. In Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (DA1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC) it was found:
[25] The distinction that the Courts sought to draw between salaries or wages as remuneration and benefits is not laudable but artificial and unsustainable. The definition of remuneration in the Act is wide enough to include wages, salaries and most, if not all extras or benefits. Remuneration is defined as:-
Remuneration means any payment in money or in kind made or owing to any person in return for that person working for any other person, including the State, and remunerate has a corresponding meaning.’14
[26] Many benefits that are payment in kind form part of the essentialia of practically all contemporary employment contracts. Many extras are given to employees as a quid pro quo for services rendered just as much as a wage is given as a quid pro quo for services rendered. The cost to employer package has become, for many employees and employers, a standard contract of employment.
13. It is therefore accepted that the current dispute relating to benefits also includes the non-payment of salaries. The respondent conceded that the applicant was not paid her salary since commencement of employment and submitted the amount to which she would be entitled to from 1 February 2016 to 31 July 2016. I therefore find that the applicant has established that the respondent has committed an unfair labour practice against her by not paying her salary and benefits which she was entitled too from 1 February 2016.
14. The respondent is therefore liable to make payments to the following amount to the Applicant.
14.1 An amount of R 156 854-00 (ONE HUNDRED AND FIFTY SIX THOUSAND EIGHT HUNDRED AND FIFTY FOUR RANDS) being the Applicant’s outstanding salary of R 114 492-00 and R42 362-00 in lieu of benefits and liable by the respondent to remit to the applicant.
AWARD
15. The applicant, Danielle Stander has established that the respondent, Head of Department: Department of Basic Education – Eastern Cape has committed an unfair labour practice against her relating to benefits.
16. The respondent, Head of Department:– Eastern Cape Department of Education is hereby ordered to pay the applicant, Danielle Stander ID number 9206120104082 her outstanding amount of R 156 854-00 (ONE HUNDRED AND FIFTY SIX THOUSAND EIGHT HUNDRED AND FIFTY FOUR RANDS) which includes the Applicant’s outstanding salary of R 114 492-00 and R42 362-00 in lieu of benefits(37% of outstanding salary) which on or before 30 September 2016
Signature:
Panelist: Raymond Jonathan
Applicant: SAOU obo Danielle Stander
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Port Elizabeth Department Education District office
Award Date: 31 August 2016
Arbitrator: Raymond Jonathan
Case Number: PSES162-16/17
Commissioner: Raymond Jonathan
Date of Award: 31 August 2016
In the ARBITRATION between:
SAOU obo Danielle Stander (Union/Applicant)
And
Head of Department: Department of Education- Eastern Cape (1st Respondent)
Pearson High School: School Governing Body (2ndRespondent)
Applicant’s representative: Ms E Hart
Applicant’s address: Cotswold Office Park No 4
21 Barton Road
Port Elizabeth
6045
Telephone: 041 364 0500
Telefax: 086 679 5692
E-mail: elreneh@saou.co.za
Respondent’s representative: Mr LN Mpati (respondent 1&2)
Respondent’s address: Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313 / 086 255 1741
DETAILS OF HEARING AND REPRESENTATION
1. An Unfair Labour Practice dispute relating to benefits was scheduled for Arbitration in terms of section 186(2) of the Labour Relations Act, No 66 of 1995, as amended (herein referred to as the ‘”LRA”). The hearing was concluded at the boardroom of the Port Elizabeth Department Education District office in Port Elizabeth on 15 August 2016. The proceedings were digitally recorded. The Applicant, Danielle Stander was represented by Ms E Hart a union official from South African Teachers Union (SAOU). The respondent, Head of Department: Department of Education – Eastern Cape and Pearson High School: School Governing Body was represented by Mr L Mpati a Labour Relations Manager in the employ of the respondent.
ISSUE TO BE DECIDED
2. I am required to determine whether the Head of Department: Department of Basic Education – Eastern Cape has committed an Unfair Labour Practice in terms of benefits by not remunerating the applicant and pay her the employee benefits which she became entitled to from the date of appointment.
BACKGROUND TO ISSUE
3. At the commencement of the proceedings the Applicant submitted her appointment letter as a post level 1 educator. This document was not disputed by the respondent. The following were also agreed as common cause facts:
3.1. The applicant was appointed as a post level 1 educator at Pearson High School on 2 February 2016.
3.2. The applicant was not paid any remuneration or benefits from her date of employment.
3.3. The applicant requested that I find that the respondent has committed an unfair labour practice and award her outstanding salary and benefits.
3.4. The parties agreed that there will be no need to call witnesses since all facts regarding this dispute are common cause. The parties will make oral submissions.
4. The onus is on the applicant to establish that an unfair labour practice was committed against him.
SURVEY OF EVIDENCE AND ARGUMENT
5. Section 138(7) (a) of the LRA require a brief summary of evidence presented and reasons be relevant to the dispute. The following does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE AND ARGUMENT
6. The applicant, Daniele Stander submitted that she was appointed by the respondent as a post level 1 educator at Pearson High School and that she commenced employment on 1 February 2016. She did not receive any salary from the date of her appointment. She also did not receive any benefits like medical aid and housing subsidy to which she became entitled too since the date of her appointment. Her none payment also implies that she did not receive a salary advice which she could submit to financial institutions which require it. Although she receives an advance on her salary from the School Governing body, she was of the view that she are being prejudiced by the respondent due to none payment of her salary and benefits. The applicant requested that the respondent be compelled to pay her all outstanding salaries and her employment benefits
RESPONDENT’S EVIDENCE AND ARGUMENT
7. The respondent representative conceded that the dispute relates to the non-payment of the applicant’s salary and benefits. He also conceded that the applicant was appointed as a post level 1 educator at Pearson High School on 1 February 2016 and that the applicant was not paid her salary or benefits since her appointment date.
8. The respondent representative argued that the salary of the applicant was not paid by the employer due to a post which needed to be created on PERSAL system. He however conceded that the amount due to the applicant in terms of salary was R114 492 -00 and R43 362-00 in lieu of benefits (37% of outstanding salary). He submitted that the aforementioned amount was based on the non-payment of salary and benefits from 1 February 2016 until 31 July 2016.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. The applicant referred an unfair labour practice dispute alleging that the respondent committed an unfair labour practice towards her when it failed to pay her salary and benefits to which she became entitled to form 1 February 2016.
10. All the facts related to the dispute are common cause. It is common cause that the applicant was appointed as a post level 1 educator at Pearson High School on 1 February 2016. It is also common cause that the respondent did not pay the applicant her salary or benefits which she became entitled to from her date of appointment and commencement of duties. It is also common cause that the amount due to the applicant amounts to R 156 854-00 which includes her outstanding salary of R 114 492-00 and R42 362-00 in lieu of benefits from 1 February 2016 until 31 July 2016.
11. Section 186 (2) (a) of the Act reads as follows:
‘Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving
a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;’
12. In Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (DA1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC) it was found:
[25] The distinction that the Courts sought to draw between salaries or wages as remuneration and benefits is not laudable but artificial and unsustainable. The definition of remuneration in the Act is wide enough to include wages, salaries and most, if not all extras or benefits. Remuneration is defined as:-
Remuneration means any payment in money or in kind made or owing to any person in return for that person working for any other person, including the State, and remunerate has a corresponding meaning.’14
[26] Many benefits that are payment in kind form part of the essentialia of practically all contemporary employment contracts. Many extras are given to employees as a quid pro quo for services rendered just as much as a wage is given as a quid pro quo for services rendered. The cost to employer package has become, for many employees and employers, a standard contract of employment.
13. It is therefore accepted that the current dispute relating to benefits also includes the non-payment of salaries. The respondent conceded that the applicant was not paid her salary since commencement of employment and submitted the amount to which she would be entitled to from 1 February 2016 to 31 July 2016. I therefore find that the applicant has established that the respondent has committed an unfair labour practice against her by not paying her salary and benefits which she was entitled too from 1 February 2016.
14. The respondent is therefore liable to make payments to the following amount to the Applicant.
14.1 An amount of R 156 854-00 (ONE HUNDRED AND FIFTY SIX THOUSAND EIGHT HUNDRED AND FIFTY FOUR RANDS) being the Applicant’s outstanding salary of R 114 492-00 and R42 362-00 in lieu of benefits and liable by the respondent to remit to the applicant.
AWARD
15. The applicant, Danielle Stander has established that the respondent, Head of Department: Department of Basic Education – Eastern Cape has committed an unfair labour practice against her relating to benefits.
16. The respondent, Head of Department:– Eastern Cape Department of Education is hereby ordered to pay the applicant, Danielle Stander ID number 9206120104082 her outstanding amount of R 156 854-00 (ONE HUNDRED AND FIFTY SIX THOUSAND EIGHT HUNDRED AND FIFTY FOUR RANDS) which includes the Applicant’s outstanding salary of R 114 492-00 and R42 362-00 in lieu of benefits(37% of outstanding salary) which on or before 30 September 2016
Signature:
Panelist: Raymond Jonathan