Case Number: PSES 384-16/17 EC
Province: Eastern Cape
Applicant: SAOU obo van Onselen, Z
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Eastern Cape Department of Education District Office in Grahamstown
Award Date: 8 December 2016
Arbitrator: Mr. C. Van Der Berg
Case No: PSES 384-16/17 EC
In the matter, between
SAOU obo VAN ONSELEN, Z.Applicant
DEPARTMENT OF EDUCATION EASTERN CAPE Respondent
PANNELIST: Mr. C. Van Der Berg
ARBITRATION: 25 November 2016
AWARD DATE: 08 December 2016
1. Details of hearing and representation
2. The arbitration hearing took place at the Eastern Cape Department of Education District Office in Grahamstown on 25 November 2016. Mrs. E Hart from SAOU represented the applicant Mrs. Z. van Onselen. Mr. G.M. Tshefu, an employee of the respondent, represented the respondent the Department of Education in the Eastern Cape.
3. Issue to be decided
4. The arbitration proceedings concerned an application for the enforcement of a bonus payable to the applicant by the respondent (Resolution 2 of 2015) in terms of clause 23 of the ELRC Constitution.
5. In terms of section 23.1 read together with clause 23.2 of the ELRC Constitution, the General Secretary may 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. A “Collective Agreement” incudes, but are not limited to, 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, 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 and/or the rules of any fund or scheme established by the Council.
6. In terms of section 23.5 and 23.6 of the ELRC Constitution, 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. Further to that a panellist, conducting an 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.
7. In light of the above I am required to determine whether or not the applicant is entitled to a pro-rata bonus as per resolution 2 of 2015.
8. In the event that I find that the applicant is entitled to a pro-rata bonus as per resolution 2 of 2015, I will be required to order payment of the pro-rata bonus and/or any other appropriate relief in terms of clause 23 of the ELRC Constitution.
9. Background to the Dispute
10. The parties agreed that the following facts and issues are common cause:
a. The applicant complied with resolution 2 of 2015 in completing and submitting all relevant documentation in due time by the 31st of December 2015;
b. The applicant submitted her documentation on 10 December 2015 indicated that she elected March to be the month that her bonus will become payable;
c. The applicant did not receive her pro-rata bonus in March 2016 even though she was entitled to it in terms of resolution 2 of 2015;
d. The respondent did not implement the resolution due to administrative constraints.
11. Analysis of Evidence and argument
12. In light of the above it is clear that the applicant was entitled to a pro-rata bonus payable in March 2016 and was it not for the fact that the respondent failed to implement resolution 2 of 2015, the applicant would have been paid a pro-rata bonus in March 2016.
13. In light of the above I make the following award.
15. The Respondent, Department of Education: Eastern Cape, is hereby ordered to pay the Applicant, van Onselen Z. the sum of R 16 487.50 (sixteen thousand and four hundred and eighty seven rand and fifty cents) before or on the 31 January 2017;
16. There is no order as to costs
Mr. C. VD Berg