Case Number: ELRC79-20/21EC
Province: Eastern Cape
Applicant: SAOU obo W Ferreira and 1 Other
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Via Zoom
Award Date: 9 December 2020
Arbitrator: V. Madula
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD THROUGH VIRTUAL
Case No. ELRC79-20/21EC
In the matter between
SAOU OBO W FERREIRA AND 1 OTHER Applicants
EASTERN CAPE DEPARTMENT OF EDUCATION Respondent
1. Details of hearing and representation
1.1 This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act).
1.2 The applicants, W Ferreira and J van Eeden were represented by Miss Schane Stander from SAOU, while the respondent, Eastern Cape Department of Education was represented by Buzani Kwepile, its official.
1.3 The matter was decided on papers of the record.
2. Issues to be decided
2.1 The nature of the dispute was the applicants’ alleged non-payment of the leave gratuity after they have retired.
2.2 I must decide whether or not the applicants were not paid their leave gratuity after they retired.
2.3 To determine an appropriate relief, if it is found that the applicants were not paid their leave gratuity after they retired.
3. Background to the dispute and common cause issues.
3.1 The applicants were employed by the respondent. They are both on retirement. Both employees have not as yet been paid their leave gratuity by the respondent.
4. Survey of the Applicants’ argument.
The applicants submitted that;
4.1 Mr. J van Eeden of persal number 51406527 retired from service on 31 December 2018. He had 53.92 capped leave days reflecting on his last pay slip. These capped leave days were confirmed by the respondent after the audit of the capped leave days. Mr. J van Eeden has not been paid these 53.92 capped leave days by the respondent since his retirement. The total value of the 53.92 capped leave days is R94 043.46.
4.2 Mr. W. Ferreira of persal number 51437911 retired from service on 30 June 2019. He had 122.96 capped leave days which were reduced to 69.28 after been audited. The capped leave days audit was done on 31 December 2001 and Ferreira’s capped leave days were 122.86. Therefore, the applicant’s capped leave days should be 107.86 if the respondent has reduced them by 15 days which the respondent is alleging that the applicant en-cashed for 30 years long service. The monetary value of these 107.86 capped leave days is R244 796.78.
5 Survey of the Respondent’s argument.
The respondent submitted that:
5.1 The delay in the payment of leave gratuity of both the applicants is due to Covid-19 lockdown. All the staff members in the respondent have not yet came back to work, but the respondent is currently in the process of paying them.
5.2 Regarding the number of capped leave days Mr. Ferreira claims to have, the respondent submitted that, Ferreira did not utilized the 15 days capped leave days for his 30 years long service encashment only, but he has also been taking leave since 2001 when the capped leave days were audited and resulted at 122.96 days. The respondent is prepared to pay Mr. W Ferreira 69.28 capped leave days as the remaining capped leave days on Mr. W. Ferreira’s retirement.
6 Analysis of the arguments
6.1 In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The applicants referred a dispute alleging non-payment of capped leave gratuity after their retirement by the respondent.
6.2 It is common cause that the applicants were not paid their capped leave gratuity when they retire from service. The respondent submitted that the delay was caused by the Covid-19 pandemic, but it is currently in a process of making the payments. The respondent did not have any dispute with the number of capped leave days of 53.92 days in respect of Mr. J van Eeden. It is therefore, my belief that the respondent should pay the applicant, Mr. J. van Eeden his 53.92 capped leave days with the monetary value of R94 043.47. The respondent is only disputing the number of capped leave days of 107.86 days Mr. W. Ferreira is claiming to have. It argued that Mr. Ferreira (is) remained with 69.28 capped leave days that it is prepared to pay.
6.3 The submissions of both the respondent and the applicant in so far as the number of capped leave days in respect of Mr. Ferreira is concern(ed), are misleading. The applicant submitted that his capped leave days should be 107.86 days after the respondent shall have reduced them from 122.86 days by 15 days, which were en-cashed for 30 years long service. However, he attached a document which showed 69.28 capped leave days as at 30 June 2019. The 30th June 2019 was the retirement date of Mr. W. Ferreira. The respondent on the other hand submitted that, after the audit of Mr. W. Ferreira’s capped leave days of 122.86 Mr. Ferreira en-cashed 15 days and also continued to take other leave days up until his retirement, but there is no records of those leave days which the respondent is claiming that Mr. Ferreira took. However, the respondent submitted that it is prepared to pay Mr. Ferreira the 69.28 capped leave days which are reflecting on the document submitted by the applicants. In light of the above, I believe that the respondent should pay the applicant, Mr. W. Ferreira 69.28 capped leave days amounting to R157 236.43. These leave days are as per the persal leave record print out submitted by the applicants, hence I relied on it.
6.4 In view of the above analysis I find that the applicants were not paid their leave gratuity by the respondent when they retired from the service. The relief sought by the applicants is the payment of leave gratuity by the respondent. I find the relief appropriate in these circumstances.
7.1 I find that the respondent, Eastern Cape Department of Education did not pay the applicants, Mr. Wyno Ferreira and Mr. J van Eeden leave gratuity when they retire from service.
7.2 The respondent is hereby ordered to pay the applicants, Mr. Wyno Ferreira and Mr. J van Eeden in the following manner;
7.2.1 Mr. Wyno Ferreira must be paid an (in) the amount of R157 236.43 (Hundred and Fifty Seven Thousand Two Hundred and Thirty Six Rand Forty Three Cent) being the leave gratuity as at the date of retirement, 30 June 2019 (69,28 days x R591 711.00 / 260.714 = R157 236.43).
7.2.2 Mr. J van Eeden must be paid in the amount of R94 043. 47 (Ninety Four Thousand Forty Three Rand Forty Seven Cent) being the leave gratuity as at the date of retirement, 31 December 2018 (53.28 days x R454 719.00 / 260.714 = R94 043.47).
7.3 The amounts as per paragraph 7.2.1 and 7.2.2 supra must be paid to the applicants on or before the 15th January 2021, failing which it shall earn interest in terms of section 143 of the Act.