Case Number: PSES52-17/18KZN
Applicant: PSA obo CHHANA, R PSA obo CHHANA, R
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 19 September 2017
Arbitrator: V Mthethwa
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD IN DURBAN
In the matter between
PSA obo CHHANA, R Applicant
DEPARTMENT OF EDUCATION-KZN Respondent
Case Number: PSES52-17/18KZN
Last date of arbitration: 12 July 2017
Date of award: 19 September 2017
Education Labour Relations Council
261 West Avenue
DETAILS OF HEARING AND REPRESENTATION:
1. This is the award in the matter between PSA obo Roshilla Chhana the Applicant, and the Department of Education-KZN, the Respondent. The hearing was conducted under the auspices of the ELRC at Dokkies, Durban on 12 July 2017. The Applicant was present and she was represented by a representative from PSA, Mr I Mooloo. The Respondent was represented by Mr ME Mabaso. The parties submitted bundles of documentary evidence which were admitted into evidence and used by both parties. The proceedings were digitally recorded.
2. The Respondent contends that the Applicant became aware of the alleged omission in 2010 but only referred the dispute to the ELRC on 12 April 2017. The Respondent thus maintains that the ELRC lacks jurisdiction to arbitrate the dispute, given that it was referred some seven years late and without the Applicant seeking condonation. Despite paragraph 17.7 of the ELRC Constitution: Part C – Dispute Resolution Procedures (Basic Education and TVET), 2016 I find that Fidelity Guards Holdings (Pty) Ltd v Epstein and others (DA25/99)  ZALAC 8 (1 September 2000) is still the applicable authority regarding the Respondent’s contention. In the Fidelity Guards judgment, at 21, the Labour Appeal Court held that “as long as the certificate of outcome stands, the CCMA has jurisdiction to arbitrate the dispute”. I find that the above court finding applies to the ELRC as well, since the ELRC functions through accreditation by the CCMA. In the present matter the outcome certificate has not been set aside by way of a review application to the Labour Court. I accordingly find that the ELRC has jurisdiction to arbitrate the present dispute as the outcome certificate still stands.
3. The Respondent also contends that the matter has prescribed even if condonation had been applied for. In Mogaila v Coca Cola Fortune (Pty) Limited  ZACC 6, and given that Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others  ZACC 49 does not constitute a binding decision, the Constitutional Court found that that the Prescription Act is incompatible with the provisions of the LRA. At 28 the court went on to find that “the Prescription Act does not apply at all to LRA matters”. In addition, the Applicant’s claim for unpaid leave for purposes of continuity of service in accordance with paragraph 22 of ELRC Resolution 7 of 2001 (the “Resolution”) does not relate to a debt. While labour matters have to be dealt with expeditiously in order to avoid protracted proceedings, I also find that there is no provision in labour law which supports (extinctive) prescription of labour disputes. I accordingly find that the Applicant’s claim has not prescribed.
BACKGROUND TO THE DISPUTE:
4. The Applicant was employed by the Respondent as a permanent educator in Phoenix Primary School on or about 01 January 1983. She resigned on or about 28 February 2009. She was serving as departmental head in Hopeville Primary School when she resigned. Thereafter the Applicant was appointed as Deputy Chief Education Specialist (DCES) in the Western Cape Department of Education on or about 01 March 2009. She subsequently resigned from the DCES position on or about 31 May 2009. She was re-appointed by the Respondent as a principal at Eastview Primary School on or about 01 September 2009. There was consequently a 92-day break in the Applicant’s service. On or about 23 February 2017 the Applicant notified the Respondent that she sought granting of unpaid leave in respect her break in service for purposes of continuity of service. The Applicant based her claim on paragraph 22 of the Resolution. Pursuant to a negative response from the Respondent, the Applicant referred a dispute to the ELRC in relation to the interpretation and application of the Resolution. She seeks granting of leave without pay in respect of her break in service; and thus continuity of service in line with paragraph 22 of the Resolution.
ISSUE TO BE DECIDED:
5. I am required to determine whether the Applicant is entitled to leave without pay for purposes of continuity of service in accordance with paragraph 22 of the Resolution; and if so,
Decide on an appropriate remedy.
SUMMARY OF THE SUBMISSIONS:
6. The Applicant did not make submissions.
7. The Respondent submits that the Applicant became aware of the alleged omission in 2010. However, the Applicant only referred the matter to the ELRC for conciliation on 12 April 2017. The Applicant thus referred the matter, without applying for condonation, some seven years after becoming aware of the alleged omission. Now that the Applicant did not apply for condonation, the ELRC lacks jurisdiction to determine the dispute. The matter must accordingly be dismissed. The Respondent further submits that even if the Applicant had applied for condonation, the matter has prescribed.
8. In addition, the Respondent submits that the Resolution does not compel the Respondent to grant continuity of service, given the wording of clause 22.1 namely: “may be granted”.
9. The Respondent further submits that the resolution authorises the Respondent to grant unpaid leave in respect of a break in service of not more than 120 days. The unpaid leave so granted renders the service to be continuous service. While her break in service is 92 days, the Applicant was not an office-based educator both before and after the break in service. Therefore the break in service cannot be considered for continuity of service.
10. The Respondent finally submits that the ELRC must dismiss the matter since the Applicant did not apply for condonation. Alternatively the ELRC must dismiss the matter as the Applicant is not eligible for granting of continuity of service. If not, the ELRC must otherwise refer the matter back to the Respondent for consideration.
ANALYSIS OF THE SUBMISSIONS:
11. Paragraph 22.1 of the Resolution provides the following:
“Unpaid leave for a maximum of 120 consecutive days may be granted to an office-based educator who was previously employed as an institution-based educator by the same or another education department for the purposes of retaining the continuity of the educator’s service”.
12. Paragraph 22.4 of the Resolution states:
“Where unpaid leave for continuity of service has been granted to an educator, the service of an educator is regarded as continuous for all purposes of determining his or her period of service”.
13. Therefore unpaid leave for purposes of retaining the continuity of an educator’s service may only be granted to an educator who is an office-based educator both prior, and subsequent, to the break in service.
14. The Applicant was an office-based educator prior to her break in service on or about 31 May 2009 since she was occupying the position of DCES. However, the Applicant was not an office-based educator subsequent to her break in service on or about 01 September 2009 since she was a school principal, an institution-based educator. The Applicant is accordingly not eligible for granting of leave without pay for purposes of continuity of service. I accordingly find that the Applicant’s claim for unpaid leave in respect of her break in service, with the attendant claim for continuity of service, falls to fail.
15. The Applicant, ROSHILLA CHHANA, is not entitled to leave without pay in respect of her break in service in accordance with paragraph 22 of the Resolution.
16. The Applicant’s claim for continuity of service in accordance with paragraph 22 of the Resolution is accordingly dismissed.
17. There is no order as to costs.