PSES 396 - 18/19 KZN
Award  Date:
26 September 2019
Case Number: PSES 396 - 18/19 KZN
Province: KwaZulu-Natal
Applicant: NAPTOSA OBO T Dookhi
Respondent: Department of Higher Education and Training
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Elangeni TVET College in Pinetown.
Award Date: 26 September 2019
Arbitrator: R. Shanker
Case No PSES 396 - 18/19 KZN

In the matter between

NAPTOSA OBO T Dookhi Applicant
And
Department of Higher Education and Training Respondent

ARBITRATOR: R. Shanker

DELIVERED: 26 September 2019

AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard on 01 July 2019 and 10 September 2019 at the Elangeni TVET College in Pinetown. There were some preliminary issues dealt with prior to July 2019.
2. The applicant, T. Dookhi was represented by I. Dhanook, an official of NAPTOSA. The respondent, Department of Higher Education and Training, was represented by S. Chomane.
3. The parties were granted seven (7) days to present closing arguments. The respondent elected to submit its closing arguments at the conclusion of the arbitration proceedings on10 September 2019 despite being made aware of the implications thereof on record. The applicant submitted its closing argument in writing within the seven (7) day period that was granted.

ISSUES TO BE DECIDED
4. The issues to be determined is whether the refusal or failure by the respondent to pay the applicant a hostel allowance amounts to an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 1995 and, if so, to grant the appropriate relief.

BACKGROUND TO DISPUTE
5. The applicant is employed as a campus manager at the Pinetown campus of Elangeni TVET College. She commenced her duties as the campus manager in January 2012 and is currently at a PL4 level, earning a salary of R 517 000, 00 per annum.
6. The Elangeni College has a hostel at the campus. The parties called witnesses and submitted bundles of documents marked bundle “A” and “B.
7. As a relief, the applicant requested that she be granted a hostel allowance back dated to January 2012.

SURVEY OF EVIDENCE AND ARGUMENT
8. The following is a summary of the evidence led at this arbitration.
9. The parties led evidence with regard to HRM Circular No. 4 of 2018: Manual for the payment of remunerative overtime and other allowances, the relevant aspects of which is summarised in my analysis.
10. It is not in dispute that the payment of a hostel allowance is dependent on the prior approval of the HOD or delegated person. It is not in dispute that such written approval had not been obtained in this instance. The applicant further agreed that the allowances had to be budgeted for prior the commencement of each financial year.
11. The applicant did not receive a letter of appointment with regard to her position as hostel supervisor. Whether the applicant actually performed the duties of a hostel supervisor is in dispute. The applicant testified that she was verbally appointed as the hostel supervisor. Her job description did not specify that she was the hostel supervisor but it listed the duties of a hostel supervisor and she performed the duties of a hostel supervisor including: overseeing the administration at the hostel, planning catering, dealing with discipline, well-being and health of students, enrolment, maintenance, safety and security management, overseeing that equipment are all in working order, managing the cleaning staff/matron at hostel and all budgeting responsibilities. She was also responsible for the E-Wallet card. The previous campus manager was Sandra Magner (“Magner”). Magner had received a hostel allowance for performing the same responsibilities listed above. When she took over the position from Magner in 2012, she was instructed by her manager and as well as by Magner to perform all of those responsibilities. She however did not receive a hostel allowance.
12. The applicant conceded under cross-examination that she did not reside at the hostel and was not present at night to perform the function of hostel supervisor. She came in each time there was an incident.
13. She had on several occasions raised this non-payment of a hostel allowance with her supervisor. Her first claim form was submitted in 2013, a year after taking office. Further submissions were made to HR annually. The forms previously handed in were mislaid. In 2018, Hlatswayo, the acting HR manager at the time, asked her to resubmit the forms. Hlatswayo, acting on the instructions of the Deputy Principal: Corporate Services, then submitted a request for payment signed by the College Principal. To date, the respondent has still not paid the hostel allowance.
14. Hlatswayo (called by the applicant and later by the respondent to testify) testified that the applicant had been responsible for running the hostel as Magner had done previously. With regards to the process and the forms, he stated that he was only the liaison person and had no further details or information. His name was on the letter dated 04 June 2018 (Applicant Bundle A page 10), addressed to DHET, as the contact person for enquiries. He confirmed that no approval had been obtained for the payment of the hostel allowance.
15. Amongst other things, Nkosi dealt with the need to get approval for the payment. She conceded that HR was at fault for not obtaining the approval. She stated under re-examination that HR was responsible for the submission of the necessary forms but approval rests with the HOD.
16. The applicant argued that 04 June 2018 letter from the college principal is clear evidence that the college had every intention to make payment to the applicant. The employer completed a calculation in which it authorized DHET to pay. The employer has never denied that payment needs to be made.
17. With regard to obtaining approval prior to payment, the applicant argued that she completed the necessary forms on the advice of HR. It was the responsibility of HR to obtain approval from DHET as confirmed by Nkosi. The applicant has been financially prejudiced due to the inefficiency of the respondent in ensuring that the correct protocol for claiming this allowance was followed. The respondent cannot now argue that the allowance is not due as protocol has not been followed. The respondent needs to make the relevant person accountable for this omission.
18. Amongst other things, the respondent argued that the applicant was not entitled to a hostel allowance as she had not been appointed as a hostel supervisor, she did not perform all the functions of a hostel supervisor and there was no approval obtained from the HOD or delegated authority. Any payment therefore would be acting outside of what the policy says.
19. There was other evidence and argument led by the parties which I considered but did not deem it necessary to include for the purposes of this award.

ANALYSIS OF EVIDENCE AND ARGUMENTS
20. In terms of section 186 (2) of the Labour Relations Act (“Act”), unfair labour practice means any unfair act or omission that arises between an employer and an employee involving, (a) unfair conduct by an employer relation to … the provision of benefits to an employee.
21. I am required to determine in this matter whether the conduct of the respondent in not paying a hostel allowance to the applicant, was unfair.
22. I took into consideration the concessions made by the applicant and also had regard to HRM Circular No. 4 of 2018: Manual for the payment of remunerative overtime and other allowances. The following are the relevant paragraphs in relation to this award.
22.1. At paragraph 7: The hostel supervisor as well as the hostel superintendent are required to supervise the well-being of boarders in their residence from normal closing time of the school to the commencement of the new school day.
22.2. At paragraph 8: The hostel allowance is calculated at a monthly rate….
22.3. At paragraph 9: The payment for hostel allowances is dependent on duly completed claim forms being submitted. The prescribed claim forms at annexure F must be used for this purpose. This form must be completed and submitted to the relevant personnel component by the 7th working day of a month for the work performed in the previous month.
22.4. APPROVAL FOR PAYMENT: The Head of Office/Institution must therefore ensure that prior approval is obtained for the relevant payments. With regard to the payment of allowances, the approval must be obtained for each financial year before its commencement i.e before 1 April of each year. For this purpose, a fully motivated request justifying the payment of the relevant allowance must be forwarded to the relevant personnel component by no later than 28 February of each year.
22.5. CONCLUSION: it must be noted that an allowance does not form part of an employee’s/educator’s compensation and can only be payable after the necessary approval has been obtained and upon submission of the prescribed claim forms.
23. It is clear from the above and the applicant also agreed that prior approval for the payment of a hostel allowance is a prerequisite. The applicant agreed that such approval had to be obtained from the HOD or person with the delegated authority.
24. There was no suggestion or evidence that the principal of the college or anyone else had the necessary delegated authority to approve a hostel allowance or enter into any agreement for the payment of a hostel allowance. In any event it is clear from the content of the principal’s letter dated 04 June 2019 or, for that matter the hotly contested emails, that there was an agreement to pay. The principal’s letter was no more than a request for payment.
25. It is also equally true that the HOD, or delegated person, had not yet refused to approve a hostel allowance. I therefore cannot get into the realm of considering whether the conduct by the respondent in refusing to approve a hostel allowance was unfair.
26. I therefore find that the payment of a hostel allowance had not been approved, refused or agreed to and that the applicant is not entitled, at least at this stage, to be paid a hostel allowance going forward and certainly not entitled to any retrospective payment in respect of a hostel allowance.
27. For completeness, the incompetence of the HR personal to assist the applicant with the completion and submission of the necessary forms for approval, as argued by the applicant, does not give me the license or power to now usurp the authority of the HOD and approve the hostel allowance and order payment.
28. For reasons mentioned above, I find that the applicant is not entitled to any hostel allowance.

Award
29. In the circumstances I make the following award:
29.1. The application is dismissed
29.2. There is no order as to costs.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal
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