Case Number: PSES34-19.20EC
Province: Eastern Cape
Applicant: SAOU obo Bloem, G.S.
Respondent: Department of Education, Eastern Cape
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: District Office of the Respondent in Port Elizabeth
Award Date: 30 June 2019
Arbitrator: M HUBER
In the arbitration between
SAOU obo Bloem, G.S.
Department of Education, Eastern Cape RESPONDENT
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 33A(4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution: Dispute Resolution Procedures, Part C.
2. The arbitration hearing was held on Wednesday 19th June 2019 at 10H00 at the District Office of the Respondent in Port Elizabeth. The Applicant, Mrs. Bloem, was represented by Ms. Harvey from SAOU and the Respondent was represented by Ms. Slabbert from Labour Relations.
The issue to be decided
3. The dispute, in terms of clause 69 of the ELRC Constitution – “Enforcement of Collective Agreements and of BCEA Provisions”, relates to the alleged refusal and / or failure by the Respondent to pay the Applicant’s accrued leave credits, which accrued prior to 1 July 2000, which the Respondent was required to pay to the Applicant as a gratuity on her retirement, in accordance with ELRC Resolution 7 of 2001, paragraph 5.2.2 and in accordance with the Personnel Administrative Measures, chapter H4.5.2 and H220.127.116.11.
4. The issue to be decided is whether or not the Respondent has complied with the applicable provisions of the collective agreement.
5. In terms of Clause 69.1 read together with Clause 69.2 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 section 33 and section 33A of the Act.
6. In terms of clause 69.5 and 69.6 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 Clause 69 [ELRC Constitution] and section 33A 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 should have been paid the accrued leave credits as a gratuity as referred to in Clause 3. In the event that I find that the Applicant should have been paid this gratuity, I will be required to order payment of all outstanding money and/or any other appropriate relief in terms of clause 69 of the ELRC Constitution.
8. The parties agreed that it is common cause that the Applicant, Mrs. Bloem, Persal number 513923305, retired on 30th September 2018 and worked until the end of December 2018.
9. The parties agreed that in accordance with ELRC Resolution 7 of 2001, paragraph 5.2.2 and in accordance with the Personnel Administrative Measures, chapter H4.5.2 and H18.104.22.168 the Applicant was entitled to be paid the annual leave gratuity on her retirement, made up of annual leave which had accrued to the Applicant prior to 1 July 2000.
10. It is common cause that the accrued annual leave outstanding amounts to 60.42 days.
11. It is common cause that the Applicant had already completed the Basic Accounting System Entity Maintenance Form and undertook to submit this Form to the Respondent on today’s date, being 19th June 2019, to ensure that the relevant payment can be processed.
12. The parties agreed that the Applicant should be paid out for 60.42 days of accrued leave, less PAYE and that this payment will be made directly into the Applicant’s bank account within 6 months of the date of this Award.
13. The Respondent has not complied with the provisions of ELRC Resolution 7 of 2001, paragraph 5.2.2 and in accordance with the Personnel Administrative Measures, chapter H4.5.2 and H22.214.171.124 in respect of the payment to the Applicant, on her retirement at the end of December 2018 [the date the Applicant worked until], of her annual leave credit accrued prior to 1 July 2000.
In the premises, I make the following order:
14. The Respondent, the Department of Education: Eastern Cape is ordered to pay the Applicant, Mrs. G S Bloem, Persal Number 51392305, via electronic payment into her banking account - ABSA, Newton Park (Branch Code 632005), Account Number 1017871192, Account Type: 01, the value of her accrued annual leave credit of 60.42 days, less PAYE, which is due and payable in terms of ELRC Resolution 7 of 2001, paragraph 5.2.2 and in accordance with the Personnel Administrative Measures, chapter H4.5.2 and H126.96.36.199.
15. The full amount due, less PAYE, should be paid to the Applicant within 6 months of this Award, being on or before the 31st December 2019.
16. Should the payment referred to in paragraph 14 not be made by the Respondent to the Applicant by the 31st December 2019, for whatsoever reason, the Respondent is to pay interest at 10% per annum on any unpaid amount/s, from 1 January 2019 until date of payment by the Respondent, in terms of Section 143(2) of the Labour Relations Act.
SIGNED AT MAKHANDA ON THIS 30 DAY OF JUNE 2019.