Case Number: PSES 517-19/20EC
Province: Eastern Cape
Applicant: SAOU obo Diederick Edwin De Villiers
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: District Office, Ethel Valentine Building, Sutton Road, Sidwell, Port Elizabeth
Award Date: 2 December 2019
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: PSES 517-19/20EC
Date of Award: 02 December 2019
In the ARBITRATION between:
SAOU obo Diederick Edwin De Villiers
(Union / Applicant)
Department of Education: Eastern Cape
Applicant’s representative: Ms Van Wyk
Applicant’s address: Cotswold Office Park,
No. 4, 21 Barton Road
Cotswold, Port Elizabeth, 6001 Telephone: 041 3640500
Telefax: 041 3640510
Respondent’s representative: Mr Kralo
Respondent’s address: Private Bag x 3915
Telephone: (041) 403 4448
Telefax: (041) 403 4497
DETAILS OF HEARING AND REPRESENTATION
1. This 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 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held at the District Office, Ethel Valentine Building, Sutton Road, Sidwell, Port Elizabeth on 26 November 2019 and the proceedings were electronically recorded. The Applicant, Diederick Edwin de Villiers through his Union, SAOU referred an enforcement dispute to the ELRC. The Applicant was represented by Ms Van Wyk, an official from SAOU. The Respondent, Department of Education – Eastern Cape was represented by Mr Kralo, a Labour Relations Officer.
ISSUE TO BE DECIDED
2. A dispute concerns the refusal and or failure of the Respondent to pay the Applicant his resettlement expenses arising from moving from his existing place of residence to place where he and his house hold settled on retirement as provided for in terms of Regulation 90 of the Terms and Conditions of Employment of Educators.
BACKGROUND TO THE ISSUES
3. The following facts were agreed to between the parties as common cause.
3.1 The Applicant retired on 31 July 2018. He started his career as an educator in the Northern Cape in 1977. He started teaching in the Eastern Cape in 1985 at Daniel Pienaar High School and after a brief period working in the private sector he returned back to teaching in 1994. Prior to retirement he was a head of department at Bergsig Speical School in Uitenhage.
3.2 The Applicant prior to retirement resided in Uitenhage and after retiring he relocated to Somerset West in the Western Cape on 1 November 2018.
3.3 The relocation was approved by Mrs Serfontein, a principal personnel officer responsible for pensions and relocation at the District Office in Uitenhage.
3.4 Biddulphs International, Removals & Storage SA moved the Applicant’s house furniture from Uitenhage to Somerset West. The Applicant paid Biddulphs R23 105.83 as per quotation for moving his furniture and household.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
5 The Applicant testified under oath via teleconference call and confirmed that he gave the Respondent 3 months’ notice of his intention to relocate and provided the Respondent with the necessary documentation. He obtained 3 quotations that he provided to Mr Jooste from the District Office and Biddulphs International, Removals & Storage SA quotation was the cheapest quotation. He also provided the Respondent with the necessary proof that he had paid Biddulphs International, Removals & Storage SA for the removal and relocation of his house hold.
6 The Respondent did not dispute the Applicant’s entitlement to be reimbursed for the removal and relocation of his house hold from Uitenhage to Somerset-East and confirmed (Mr Kralo) that payment would be attended to after 6 January 2020 to reimburse the Applicant.
7 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 Act.
8 Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
8.1 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
8.2 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;
9 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.
10 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.
11 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.
12 Regulation 90(1) of the Terms and Conditions of Employment of Educators provides that upon the transfer, appointment or termination of service of an educator in terms of the Act or of his or her death, such an educator or his or her estate, whichever is applicable, shall be compensated by the employer for the reasonable resettlement expenditure actually and necessarily incurred as a result thereof within the framework of the provisions of this regulation and taking into account the following measures and guidelines:
13 Subregulation (2)(b) and (c) also provides that the following expenses shall be payable to an educator on transfer: accommodation and transport expenditure of an educator and his or her household arising from the transfer to the new headquarters including the transport of personal effects from packing to the eventual unpacking thereof at permanent accommodation as well as the all-inclusive insurance cover thereof. The expense of storage of personal effects as well as the all-inclusive insurance thereof.
14 Subregulation (5)(a) further provides that the expenses provided for in subregulation (2)(b), (c), (d) and (e), arising from moving from an existing place of residence to a place where an educator (excluding an educator who was recruited abroad) and his or her household wishes to settle in the Republic on termination of service, may be paid mutatis mutandis to such educator, or his or her household in the case of his or her death on the basis, conditions and requirements which the employer may determine.
14. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.” (emphasis added)
15. I must complement the Respondent’s representative for his honesty and integrity in these proceedings that assisted in resolving the dispute between the parties.
16. The Respondent, the Department of Education: Eastern Cape is in breach of Regulation 90(5)(a) of the Terms and Conditions of Employment of Educators, a basic condition of employment which constitutes a term of a contract of employment of the Applicant by not paying the Applicant his resettlement costs arising from him moving from Uitenhage to Somerset East as a result of his retirement.
17. The Respondent, the Department of Education: Eastern Cape is ordered to pay the Applicant, Diederick Edwin de Villiers an amounting to R23 105.83 that equate to the reimbursement of removal costs paid by the Applicant to Biddulphs International, Removals & Storage SA on 22 October 2018.
18. The amount as referred to in paragraph 17 must be paid to the Applicant by no later than 28 February 2020.
Name: Jonathan Gruss