Case Number: PSES 348 19/20 KZN
Applicant: Abdul Bademba Barrie
Respondent: Department of Higher Education and Training – Kwazulu Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Durban Teachers Training Centre
Award Date: 1 October 2019
Arbitrator: Vuyiso Ngcengeni
Case: PSES 348 19/20 KZN
Date of Award: 01 October 2019
Panelist : Vuyiso Ngcengeni
Province : Kwazulu Natal
Employee : Abdul Bademba Barrie
Employer : Department of Higher Education and Training – Kwazulu Natal
Issue : Unfair Labour Practice - Benefits
Venue : Durban
In the ARBITRATION between:
Abdul Bademba Barrie Employee
Department of Higher Education and Training – Kwazulu Natal Employer
Employee representative: Himself
Telephone : 072 882 0435
Email : email@example.com
Employer representative: Absent
DETAILS OF THE HEARING AND REPRESENTATION
1. This is a default award for the matter that was scheduled before me for arbitration on the 13th of September 2019, in Durban Teachers Training Centre under the auspices of the Education Labour Relations Council (the Council).
2. The Employee was present and he represented himself whilst the Employer was absent.
3. At 10h39, I contacted the Council and by 11h00, the Council sent me the proof that the Employer was indeed notified of the hearing. Given that there was no reason given for the Employer’s non-appearance, I therefore continued with the arbitration process in the absence of the Employer in terms of section 138 (5)(b)(i) of the Labour Relations Act of 1995 as amended (the Act).
4. The dispute was set down in terms of section 186(2)(a) of the Act and as per the referral form, it is about benefits.
5. The hearing was conducted in English and I also took notes.
ISSUE TO BE DETERMINED
6. I am required to determine whether the Employer committed an unfair labour practice when it failed to pay the Employee his salary and benefits from February 2019 to August 2019.
7. The Employee wants the Employer to pay him the outstanding salaries and benefits for the period mentioned above, including a bonus for May 2019.
BACKGROUND TO THE DISPUTE
8. The Employee is employed at Thekwini TVET College as a Lecturer and he has been employed on multiple short term contracts since 2008.
9. The Employee is currently on a fixed term contract that started on 25 February 2019 and he earns R 30 451 per month excluding benefits.
10. The dispute arouse on 25 March 2019, when he realized that he was not paid his salary and he continued not being paid until he referred a dispute to the Council on 25 July 2019.
11. In August 2019, he was paid an amount of about R 96000.00 which he was told was for five months. The payment excluded his benefits.
12. He was told by Thabani from the Department in about the 23rd of August 2019 that the Employer is working on his issue in relation to the outstanding months and benefits.
SURVEY OF EVIDENCE AND SUBMISSIONS
The employee testified under oath as follows:-
13. He has not referred the dispute because he seeks compensation, all he wants is justice. He wants the Employer to rectify the injustice in the manner in which his contract was handled as he feels that he was treated unfairly, unjustly and unreasonably.
14. The reasons for saying this is because the Director General of Human Resources, Ms Mapheto, made demands on him that she has not made on other lecturers at the same institution.
15. He is aware that more than half of the lecturers at the institution are not SACE (South African Council for Educators) compliant, yet they continue to receive their full salaries and benefits.
16. In his case, Mapheto insisted that he produce a SACE certificate before she could endorse his contract.
17. He thinks this smacks of double standard and violates section 185 of the Act which states that everyone has a right not to be subjected to unfair labour practice or conduct.
18. The fragile treatment he was given in relation to other lecturers in his view falls under unfair labour conduct.
19. Secondly, Mapheto’s insistence that he produce recruitment documents for the post he occupies also smacks of double standard, as there are many other lecturers with no evidence of recruitment documentation who are working and are being paid their salaries and benefits. Because of this, he thinks that this amounts to an unfair labour conduct.
20. Moreover the piece meal manner in which she handled his case, shows some amount of malice and spite. She should have asked for all the things she needed to endorse his contract, instead of making four different requests at four different times with an interval of two weeks in between the requests.
21. In view of the above, he is satisfied that he is a victim of unfair labour conduct by Mapheto.
22. Notwithstanding the unfair manner in which he has been treated and the hardships and difficulties that this has caused him and his family, he is not asking for any damages and/or compensation, in the interest of maintaining good employer-employee relationship. All he wants is for all his outstanding salaries and benefits for the six months: February to August 2019 to be paid as soon as possible.
23. In around August 2019, he was paid about R 96 000.00 which he was told was for 5 months. Benefits were not included in the said payment.
24. He is owed salaries for February and March 2019, as well as a bonus which he would have received in May 2019 which is an equivalent of his basic salary.
25. He is also owed benefits: Medical aid subsidy of R 1 100 per month and R 940 per month for six months.
ANALYSIS OF EVIDENCE AND ARGUMENTS
26. It is clear from the issues submitted by the Employee as background facts and it is not my intention to repeat all of them and I will only mention the following-
26.1 The Employee received payment which he mentioned that is it was for five months.
26.2 The Employee also mentioned that the aforesaid payment did not include the benefits such as the medical aid and the R 940 which he received per month.
26.3 The Employee further mentioned that he was paid for the month of September 2019.
26.4 He stated that the Employer has informed him that it was working on his outstanding payments, including benefits.
27. Given the submissions made by the Employee, it is clear to me that the Employer is not disputing the claims made by the Employee and that it is working on them. In so doing, the Employer has already started paying the Employee and appears to honour his employment by paying him on a regular basis as expected. I have no reason to doubt that as the Employer is currently working on the Employee’s outstanding payment and benefits, a bonus could be part of such payments, if indeed it is due.
28. In his own words, the Employee mentioned that he does not want anything else, in spite of the hardships he and his family has been subjected to, by the Employer’s actions.
29. It therefore follows in my view that as matters stand, there is no dispute between the Employee and the Employer. And in relation to his alleged unfair treatment, he is not seeking any relief.
30. It is trite that as a Commissioner, I am expected to preside over and decide on a live dispute that exists between the parties and in this matter, I do not believe that a live dispute exists.
31. In the final analysis, it is my view that the Council lacks jurisdiction on this matter, as there is no live dispute between the parties.
32. The Council does not have jurisdiction on this matter.
33. The application is dismissed.
Panelist / Commissioner