PSES 896-17/18EC
PSES 896-17/18EC
Award Date:
14 May 2018
Case Number: PSES 896-17/18EC
Province: Eastern Cape
Applicant: NAPTOSA obo Maquena JM
Respondent: Department of Education -Easter Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Department of District Offices Education - Eastern Cape in Port Elizabeth
Award Date: 14 May 2018
Arbitrator: Anthony Walter Howden
Case No PSES896- 17/18EC
In the matter between
NAPTOSA obo Maquena JM Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: Anthony Walter Howden
HEARD: 11 May 2018
DATE OF AWARD: 14 May 2018
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA), the provisions of ELRC Resolution 1 of 2008 and Personnel Administrative Measure (PAM) Chapter C 4, in that the Department of Education has failed to pay the Applicant for services rendered as an Acting Principal for the period 1 July 2016 to 31 October 2017.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS 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 69.5 of the ELRC Constitution : Dispute Resolution Procedures Annexure C (Collective Agreement No.6 of 2016). The arbitration was held on 11 May 2018 at the District Offices of the Department of Education - Eastern Cape in Port Elizabeth.
2. The Applicant, Mr JM Maquena, Persal Number 50662198, was present and represented by Mr A Adams from NAPTOSA.
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr C Pillay - Assistant Director - from the Labour Relations Department.
ISSUES IN DISPUTE
4. I am required to determine whether or not the Respondent has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), the provisions of ELRC Resolution 1 of 2008 and the provisions of PAM Chapter C 4, in that the Respondent has failed to pay the Applicant for services rendered as an Acting Principal for the period I July 2016 to 31 October 2017.
BACKGROUND TO THE DISPUTE
5. The Applicant was appointed as an Acting Principal at Coega Primary School for the period 1 July 2016 to 31 October 2017 after due process was followed by the Respondent.
6. The Applicant requests that he be paid for this period as services were rendered as an Acting Principal at Coega Primary School.
SURVEY OF EVIDENCE AND ARGUMENT
7. It is common cause between the parties:
- That the Applicant is employed by the Respondent as a Deputy Principal at Coega Primary School.
- That the Applicant was appointed as an Acting Principal at Coega Primary School for the period 1 July 2016 to 21 October 2017.
- That the Applicant performed the duties for the Acting Principal position for the full duration of the period 1 July 2016 to 31 October 2017.
- That the Applicant has not been paid for the period he acted as Principal at Coega Primary School.
- That the Applicant’s basic salary per month in the 2016 cycle was R32 186.50 per month and in the 2017 cycle was R34 536.00 per month.
- That the amount due to the Applicant was R120 523.00.
- That all internal procedures have been exhausted.
- That the provisions of PAM C 4.1 had been applied by the Respondent, however logistical issues in the human resources department have delayed the payment.
8. The Applicant’s Representative submitted the calculations for the amount of R120 523.00, which was confirmed by the Respondent.
9. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
10. The Applicant’s Representative stated that it is common cause that the previous Principal retired and that the Applicant was appointed as the Acting Principal. The Applicant’s Representative further stated that services were rendered and the Applicant needed to be paid for these services.
11. The Applicant’s Representative further stated that the Applicant must be paid within 30 days of the issuing of the Arbitration award.
12. The Applicant’s Representative further requested that should payment not be made within 30 days from the issuing of the Arbitration award, interest at 10.25% be made payable, commencing on the 31st day from the date on which the Arbitration award was issued until date of payment.
The Respondent’s Submissions
13. The Respondent’s Representative confirmed that it was common cause that the previous Principal had retired, that the Applicant had been appointed as Acting Principal and all the necessary documentation had been submitted by the EDO.
14. The Respondent’s Representative further confirmed that the payment was delayed by the HR Department due to logistical (capacity) problems.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Clause 68 of the Council’s Constitution - Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to conciliation and arbitration in terms of these procedures.
16. Clause 69.1 also 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 LRA.
17. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 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
69.2.2 subject to clause 7.5, 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;
18. Clause 69.3 provides that where the general secretary acts in terms of this clause 69, and the matter also involves the interpretation or application of a collective agreement, this clause 24 applies to the exclusion of clause 8.
19. Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party 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.
20. Clause 69.6 also provides that a panellist, conducting arbitration in terms of this clause 69 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.
21. Clause 69.7 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.
22. The dispute before me relates to the non-compliance to Section 32 of the BCEA/ELRC Resolution 1 of 2008 and PAM C 4, which relates to the entitlement of an acting allowance, which amounts to a salary, albeit a portion thereof. The parties have confirmed that it is common cause that the Applicant should be paid an acting allowance for the period 1 July 2016 to 31 October 2017.
23. Section 32(1) of the BCEA states that an employer must pay to an employee any remuneration that is paid in money –
• in South African currency;
• daily, weekly, fortnightly or monthly; and
• in cash, by cheque or by direct deposit into an account designated by the employee.
24. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven (7) days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
25. Section 75 of the BCEA provides that an employer must pay interest on any amount due and payable in terms of the BCEA at the rate of interest prescribed in terms of section 1 of the Prescribed Rate on Interest Act no. 55 1975, to any person to whom a payment should have been made.
26. The Respondent’s Representative stated that the delay in payment was due to operational (capacity) problems. A delay of maybe three months is acceptable, however a delay of more than a year is totally unacceptable when working with people, especially people performing in senior positions.
27. It is my finding, based on the above and on the balance of probability, that the Respondent has contravened the provisions of Section 32 of the BCEA, the provisions of ELRC Resolution 1 of 2008 and the provisions of PAM C 4, in that the Respondent has failed to pay the Applicant for services rendered as an Acting Principal at Coega Primary School for the period 1 July 2016 to 31 October 2017.
28. Section 143 (2) of LRA provides that if an arbitration award orders a party to pay a sum of money, the amount earns interest from date of award of the award at the same rate as the rate prescribed from time to time in respect of judgement debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975), unless the award provides otherwise.
AWARD
29. I find that the Respondent, Department of Education - Eastern Cape, has contravened the provisions of Section 32 of the BCEA, the provisions of ELRC Resolution 1 of 2008 and the provisions of the PAM C 4, by failing to pay the Applicant, Mr JM Maquena Persal Nr 50662198, for the period 1 July 2016 to 31 October 2017 in which the Applicant, Mr JM Maquena Persal Nr 50662198, rendered services as an Acting Principal at Coega Primary School.
30. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, Mr JM Maquena Persal Nr 50662198, the amount of R120 523.00 (One hundred and twenty thousand five hundred and twenty three rand) for the period 1 July 2016 to 31 October 2017 in which the Applicant, Mr JM Maquena Persal Nr 50662198, rendered services as an Acting Principal at Coega Primary School.
31. The payment mentioned in paragraph 30 above, less statutory deductions (PAYE), must be made by the Respondent, the Department of Education - Eastern Cape, to the Applicant, Mr JM Maquena Persal Nr 50662198, by no later than 30 June 2018.
32. Should the payment as mentioned in paragraph 30 above, for whatever reason, not be made by 30 June 2018, the Respondent, Department of Education – Eastern Cape, is to pay interest at 10 % on the amount of R120 523.00, to the Applicant, Mr JM Maquena Persal Nr 50662198, from 1 July 2018 until date of payment by the Respondent, Department of Education – Eastern Cape, in terms of Section 143(2) of the LRA.
Panellist: AW Howden
ELRC
Province: Eastern Cape
Applicant: NAPTOSA obo Maquena JM
Respondent: Department of Education -Easter Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Department of District Offices Education - Eastern Cape in Port Elizabeth
Award Date: 14 May 2018
Arbitrator: Anthony Walter Howden
Case No PSES896- 17/18EC
In the matter between
NAPTOSA obo Maquena JM Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: Anthony Walter Howden
HEARD: 11 May 2018
DATE OF AWARD: 14 May 2018
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA), the provisions of ELRC Resolution 1 of 2008 and Personnel Administrative Measure (PAM) Chapter C 4, in that the Department of Education has failed to pay the Applicant for services rendered as an Acting Principal for the period 1 July 2016 to 31 October 2017.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS 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 69.5 of the ELRC Constitution : Dispute Resolution Procedures Annexure C (Collective Agreement No.6 of 2016). The arbitration was held on 11 May 2018 at the District Offices of the Department of Education - Eastern Cape in Port Elizabeth.
2. The Applicant, Mr JM Maquena, Persal Number 50662198, was present and represented by Mr A Adams from NAPTOSA.
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr C Pillay - Assistant Director - from the Labour Relations Department.
ISSUES IN DISPUTE
4. I am required to determine whether or not the Respondent has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (BCEA), the provisions of ELRC Resolution 1 of 2008 and the provisions of PAM Chapter C 4, in that the Respondent has failed to pay the Applicant for services rendered as an Acting Principal for the period I July 2016 to 31 October 2017.
BACKGROUND TO THE DISPUTE
5. The Applicant was appointed as an Acting Principal at Coega Primary School for the period 1 July 2016 to 31 October 2017 after due process was followed by the Respondent.
6. The Applicant requests that he be paid for this period as services were rendered as an Acting Principal at Coega Primary School.
SURVEY OF EVIDENCE AND ARGUMENT
7. It is common cause between the parties:
- That the Applicant is employed by the Respondent as a Deputy Principal at Coega Primary School.
- That the Applicant was appointed as an Acting Principal at Coega Primary School for the period 1 July 2016 to 21 October 2017.
- That the Applicant performed the duties for the Acting Principal position for the full duration of the period 1 July 2016 to 31 October 2017.
- That the Applicant has not been paid for the period he acted as Principal at Coega Primary School.
- That the Applicant’s basic salary per month in the 2016 cycle was R32 186.50 per month and in the 2017 cycle was R34 536.00 per month.
- That the amount due to the Applicant was R120 523.00.
- That all internal procedures have been exhausted.
- That the provisions of PAM C 4.1 had been applied by the Respondent, however logistical issues in the human resources department have delayed the payment.
8. The Applicant’s Representative submitted the calculations for the amount of R120 523.00, which was confirmed by the Respondent.
9. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
10. The Applicant’s Representative stated that it is common cause that the previous Principal retired and that the Applicant was appointed as the Acting Principal. The Applicant’s Representative further stated that services were rendered and the Applicant needed to be paid for these services.
11. The Applicant’s Representative further stated that the Applicant must be paid within 30 days of the issuing of the Arbitration award.
12. The Applicant’s Representative further requested that should payment not be made within 30 days from the issuing of the Arbitration award, interest at 10.25% be made payable, commencing on the 31st day from the date on which the Arbitration award was issued until date of payment.
The Respondent’s Submissions
13. The Respondent’s Representative confirmed that it was common cause that the previous Principal had retired, that the Applicant had been appointed as Acting Principal and all the necessary documentation had been submitted by the EDO.
14. The Respondent’s Representative further confirmed that the payment was delayed by the HR Department due to logistical (capacity) problems.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Clause 68 of the Council’s Constitution - Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to conciliation and arbitration in terms of these procedures.
16. Clause 69.1 also 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 LRA.
17. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 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
69.2.2 subject to clause 7.5, 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;
18. Clause 69.3 provides that where the general secretary acts in terms of this clause 69, and the matter also involves the interpretation or application of a collective agreement, this clause 24 applies to the exclusion of clause 8.
19. Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party 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.
20. Clause 69.6 also provides that a panellist, conducting arbitration in terms of this clause 69 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.
21. Clause 69.7 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.
22. The dispute before me relates to the non-compliance to Section 32 of the BCEA/ELRC Resolution 1 of 2008 and PAM C 4, which relates to the entitlement of an acting allowance, which amounts to a salary, albeit a portion thereof. The parties have confirmed that it is common cause that the Applicant should be paid an acting allowance for the period 1 July 2016 to 31 October 2017.
23. Section 32(1) of the BCEA states that an employer must pay to an employee any remuneration that is paid in money –
• in South African currency;
• daily, weekly, fortnightly or monthly; and
• in cash, by cheque or by direct deposit into an account designated by the employee.
24. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven (7) days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
25. Section 75 of the BCEA provides that an employer must pay interest on any amount due and payable in terms of the BCEA at the rate of interest prescribed in terms of section 1 of the Prescribed Rate on Interest Act no. 55 1975, to any person to whom a payment should have been made.
26. The Respondent’s Representative stated that the delay in payment was due to operational (capacity) problems. A delay of maybe three months is acceptable, however a delay of more than a year is totally unacceptable when working with people, especially people performing in senior positions.
27. It is my finding, based on the above and on the balance of probability, that the Respondent has contravened the provisions of Section 32 of the BCEA, the provisions of ELRC Resolution 1 of 2008 and the provisions of PAM C 4, in that the Respondent has failed to pay the Applicant for services rendered as an Acting Principal at Coega Primary School for the period 1 July 2016 to 31 October 2017.
28. Section 143 (2) of LRA provides that if an arbitration award orders a party to pay a sum of money, the amount earns interest from date of award of the award at the same rate as the rate prescribed from time to time in respect of judgement debt in terms of section 2 of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975), unless the award provides otherwise.
AWARD
29. I find that the Respondent, Department of Education - Eastern Cape, has contravened the provisions of Section 32 of the BCEA, the provisions of ELRC Resolution 1 of 2008 and the provisions of the PAM C 4, by failing to pay the Applicant, Mr JM Maquena Persal Nr 50662198, for the period 1 July 2016 to 31 October 2017 in which the Applicant, Mr JM Maquena Persal Nr 50662198, rendered services as an Acting Principal at Coega Primary School.
30. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, Mr JM Maquena Persal Nr 50662198, the amount of R120 523.00 (One hundred and twenty thousand five hundred and twenty three rand) for the period 1 July 2016 to 31 October 2017 in which the Applicant, Mr JM Maquena Persal Nr 50662198, rendered services as an Acting Principal at Coega Primary School.
31. The payment mentioned in paragraph 30 above, less statutory deductions (PAYE), must be made by the Respondent, the Department of Education - Eastern Cape, to the Applicant, Mr JM Maquena Persal Nr 50662198, by no later than 30 June 2018.
32. Should the payment as mentioned in paragraph 30 above, for whatever reason, not be made by 30 June 2018, the Respondent, Department of Education – Eastern Cape, is to pay interest at 10 % on the amount of R120 523.00, to the Applicant, Mr JM Maquena Persal Nr 50662198, from 1 July 2018 until date of payment by the Respondent, Department of Education – Eastern Cape, in terms of Section 143(2) of the LRA.
Panellist: AW Howden
ELRC