PSES 401-19/20 EC
PSES 401-19/20 EC
Award Date:
28 February 2020
Case Number: PSES 401-19/20 EC
Province: Eastern Cape
Applicant: SAOU obo DU PLESSIS, J
Respondent: 1st Respondent The HOD (SG)- Eastern Cape Department of Education and 2nd Respondent Department of Basic Education –Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the District Offices of the Department of Education in Graaff-Reinet.
Award Date: 28 February 2020
Arbitrator: Hadley Saayman
Case Number: PSES 401-19/20 EC
Commissioner: Hadley Saayman
Date: 28 February 2020
In the ARBITRATION between
(Union/Applicant)
SAOU obo DU PLESSIS, J
And
The HOD (SG)- Eastern Cape Department of Education: 1st Respondent
Department of Basic Education –Eastern Cape : 2nd Respondent
(Respondent)
Applicant’s representative: Ms Venita Van Wyk
Applicant’s address: 21 Bantom Street
Cotswold
Port Elizabeth
6025
Telephone: 041-3640500
Telefax: 041-3640510
E-mail: saouok@saou.co.za/ venita@saou.co.za
Respondent’s representative: Mr E. Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Tanduxolo.dabi@edu.ecprov.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 24(5) of the Labour Relations Act, 66 of 1995 read with Clause 69 of Part C; Dispute Resolution Procedures of the ELRC Constitution and was set down for Arbitration on 21 February 2020 at the District Offices of the Department of Education in Graaff-Reinet.
2. The Applicant was represented by Ms V Van Wyk, an Union Official.
3. The Respondents were represented by Mr E Hector, a Labour Relations Officer.
ISSUES TO BE DECIDED
4. I must determine whether the applicant was entitled to any amount owing by the Respondents
as a result of the ELRC Resolution 8 of 2001.
SURVEY OF EVIDENCE
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act, relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The Applicant is employed as an Educator, post level one (1) at Zuuranys Primary School.
7. The Applicant acted as School Principal (Post Level one (1)), from 1 February 2018 until
31 December 2018.
8. The Applicant submitted that the Respondent only paid her an acting allowance for the period
1 February 2018 until 31 July 2018.
9. The Applicant claims that the Respondent failed to pay her an acting allowance for the period
1 August 2018 until 31 December 2018.
10. The Applicant submitted that despite all her efforts to have the matter be resolved internally, the Respondent failed or refused to comply with the provisions contained in ELRC Collective agreement 8 of 2001 on Acting allowance.
11. The Applicant’s claim is calculated as follows:
PERIOD ACTING ALLOWANCE PER MONTH TOTAL AMOUNT OUSTANDING
1 AUGUST 2018 – 31 DECEMBER 2018 R 2 097.25 R 10 486.25
12. The Applicant therefore claims that the Respondents owes her an amount of R 10 486.25.
RESPONDENT’S EVIDENCE
13. The Respondent submitted that the Applicant was acting as School Principal at Zuuranys Primary School for the period 1 February 2018 until 31 December 2018.
14. The Respondent submitted that the Applicant was duly appointed to act as School Principal from effect 1 February 2018 until 31 July 2018 and therefore the Applicant was paid an acting allowance for the period 1 February 2018 until 31 July 2018.
15. The Respondent further submitted that the Applicant’s documents for recommendation and approval for the period 1 August 2018 until 31 December 2018 was handed in at Humansdorp Circuit Management Office during 2018, but the Graaff-Reinet District Office only received the documents at the beginning of this year(2020) from the Humansdorp Circuit Management Office.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The Collective agreement 8 of 2001 provides as follows:
Acting allowance for an educator acting in a higher vacant and funded post
1. An educator, complying with the minimum requirements in paragraph B.3.2 of
Chapter B of the PAM shall, be appointed in writing by the employer to act.
2. An educator may only be appointed to act in a post that is one post level higher than his/her current position.
3. Within fourteen days of notification by the employer, an SGB will be requested to recommend to the employer the educator to be appointed to act in a higher vacant and funded post.
4. In extraordinary circumstances, the employer may deviate from clauses 2 and 2, above (including instances where the SGB fails to make a recommendation).
5. An acting allowance will be paid only to an educator who acts:
5.1 In a higher vacant and funded post; and
5.2 If the period of appointment is longer than six weeks; but limited to a maximum of twelve months.
6. Compensation shall be backdated to the date the educator commenced acting, provided that the acting is six consecutive weeks or longer.
17. It was common cause that the Applicant was acting as School Principal for the period 1 February 2018 until 31 December 2018 and that the Applicant was only paid an acting allowance for the period 1 February 2018 until 31 July 2018.
18. It was further common cause that the Applicant duly submitted the recommendation forms from the School Governing Body to act as Principal to the Circuit Management Office in Humansdorp during 2018. There is no justifiable explanation why the documents were sent only in 2020 to the Graaff- Reinet District Office.
19. The ELRC Collective agreement 1 of 2008 at clause 5.10.2 states as follows:
“An employee in a one teacher school and acting as principal, shall gain at least six (6) notches (6%) while appointed in such a post.”
20. The ELRC Collective agreement 1 of 2008 at clause 5.12 states as follows:
“The existing provisions for the payment of an acting allowance will apply. In cases where the acting person’s current salary equals or exceeds the commencing notch of the higher post that applies to the position in which the person is acting, the acting allowance that will apply is six notches.”
21. It was common cause that the acting allowance as per the initial appointment letter of the Applicant to act as principal indicated an allowance of R 2 097.25 per month, with effect 01/04/2018.
22. The referral of the dispute in question refers to Enforcement of Collective Agreement 8 of 2003.
Clause 69 of the dispute resolution procedures of the ELRC provides for the enforcement of
collective agreements.
23. In Western Cape Department of Health v Van Wyk and Others, (2014) 35 ILJ 3078 (LAC) at
para 22, the Labour Appeal Court held:
“In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives all his/her powers from the Act he/she must at all times take into account the primary objects of the Act... “
The LAC went on to hold:
„The primary objects of the Act are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.‟
24. In CUSA v Tao Ying Metal Industries and Other [2009] 1 BLLR 1 (CC) at paras [55] and [56],
the Constitutional Court emphasized the importance and the rights that Collective Agreements give effect to as follows:
‘[55] The issues raised in this case are matters of public interest. This case also concerns the enforcement of a bargaining council agreement which sets out minimum wages and other conditions of employment and requires us to apply the provisions of the LRA. The right of every trade union and every employers’ organisation and employer to engage in collective bargaining is entrenched in section 23(5) of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process.
[56] Compliance with a collective bargaining agreement is crucial not only to the right to bargain collectively through the forum constituted by the bargaining council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched. The enforcement of these agreements is indeed crucial to a society which, like ours, is founded on the rule of law.’
25. The Respondent must comply with the terms and conditions of the collective agreement.
26. The Respondent conceded that the Applicant was acting as School Principal and that she did not receive the acting allowance for the period 1 August 2018 until 31 December 2018.
27. Considering all the above, the Applicant, J Du Plessis (persal no.50671481) is entitled to an acting allowance for the period 1 August 2018 - 31 December 2018 and is entitled to an amount of R 10 486.25, plus interest at 10.25% per annum from 1 September 2018 until date of payment.
AWARD
28. The Respondent, Department of Education-EC is ordered to pay the Applicant, J. Du Plessis
persal no.50671481) the acting allowances in the amount of R10 486.25, plus interest at 10.25% per annum from 1 September 2018 until date of payment.
29 The above-mentioned amount must be paid by the Respondent to the Applicant by no later than 20 April 2020 and would be subjected to normal statutory deductions.
30. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment of
R10 486.25, plus interest at 10.25% per annum from 1 September 2018 until date of payment, effected to the Applicant, J Du Plessis (persal no.50671481).
Signature:
Commissioner: Hadley Saayman
Sector: Education
Province: Eastern Cape
Applicant: SAOU obo DU PLESSIS, J
Respondent: 1st Respondent The HOD (SG)- Eastern Cape Department of Education and 2nd Respondent Department of Basic Education –Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the District Offices of the Department of Education in Graaff-Reinet.
Award Date: 28 February 2020
Arbitrator: Hadley Saayman
Case Number: PSES 401-19/20 EC
Commissioner: Hadley Saayman
Date: 28 February 2020
In the ARBITRATION between
(Union/Applicant)
SAOU obo DU PLESSIS, J
And
The HOD (SG)- Eastern Cape Department of Education: 1st Respondent
Department of Basic Education –Eastern Cape : 2nd Respondent
(Respondent)
Applicant’s representative: Ms Venita Van Wyk
Applicant’s address: 21 Bantom Street
Cotswold
Port Elizabeth
6025
Telephone: 041-3640500
Telefax: 041-3640510
E-mail: saouok@saou.co.za/ venita@saou.co.za
Respondent’s representative: Mr E. Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Tanduxolo.dabi@edu.ecprov.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 24(5) of the Labour Relations Act, 66 of 1995 read with Clause 69 of Part C; Dispute Resolution Procedures of the ELRC Constitution and was set down for Arbitration on 21 February 2020 at the District Offices of the Department of Education in Graaff-Reinet.
2. The Applicant was represented by Ms V Van Wyk, an Union Official.
3. The Respondents were represented by Mr E Hector, a Labour Relations Officer.
ISSUES TO BE DECIDED
4. I must determine whether the applicant was entitled to any amount owing by the Respondents
as a result of the ELRC Resolution 8 of 2001.
SURVEY OF EVIDENCE
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act, relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The Applicant is employed as an Educator, post level one (1) at Zuuranys Primary School.
7. The Applicant acted as School Principal (Post Level one (1)), from 1 February 2018 until
31 December 2018.
8. The Applicant submitted that the Respondent only paid her an acting allowance for the period
1 February 2018 until 31 July 2018.
9. The Applicant claims that the Respondent failed to pay her an acting allowance for the period
1 August 2018 until 31 December 2018.
10. The Applicant submitted that despite all her efforts to have the matter be resolved internally, the Respondent failed or refused to comply with the provisions contained in ELRC Collective agreement 8 of 2001 on Acting allowance.
11. The Applicant’s claim is calculated as follows:
PERIOD ACTING ALLOWANCE PER MONTH TOTAL AMOUNT OUSTANDING
1 AUGUST 2018 – 31 DECEMBER 2018 R 2 097.25 R 10 486.25
12. The Applicant therefore claims that the Respondents owes her an amount of R 10 486.25.
RESPONDENT’S EVIDENCE
13. The Respondent submitted that the Applicant was acting as School Principal at Zuuranys Primary School for the period 1 February 2018 until 31 December 2018.
14. The Respondent submitted that the Applicant was duly appointed to act as School Principal from effect 1 February 2018 until 31 July 2018 and therefore the Applicant was paid an acting allowance for the period 1 February 2018 until 31 July 2018.
15. The Respondent further submitted that the Applicant’s documents for recommendation and approval for the period 1 August 2018 until 31 December 2018 was handed in at Humansdorp Circuit Management Office during 2018, but the Graaff-Reinet District Office only received the documents at the beginning of this year(2020) from the Humansdorp Circuit Management Office.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. The Collective agreement 8 of 2001 provides as follows:
Acting allowance for an educator acting in a higher vacant and funded post
1. An educator, complying with the minimum requirements in paragraph B.3.2 of
Chapter B of the PAM shall, be appointed in writing by the employer to act.
2. An educator may only be appointed to act in a post that is one post level higher than his/her current position.
3. Within fourteen days of notification by the employer, an SGB will be requested to recommend to the employer the educator to be appointed to act in a higher vacant and funded post.
4. In extraordinary circumstances, the employer may deviate from clauses 2 and 2, above (including instances where the SGB fails to make a recommendation).
5. An acting allowance will be paid only to an educator who acts:
5.1 In a higher vacant and funded post; and
5.2 If the period of appointment is longer than six weeks; but limited to a maximum of twelve months.
6. Compensation shall be backdated to the date the educator commenced acting, provided that the acting is six consecutive weeks or longer.
17. It was common cause that the Applicant was acting as School Principal for the period 1 February 2018 until 31 December 2018 and that the Applicant was only paid an acting allowance for the period 1 February 2018 until 31 July 2018.
18. It was further common cause that the Applicant duly submitted the recommendation forms from the School Governing Body to act as Principal to the Circuit Management Office in Humansdorp during 2018. There is no justifiable explanation why the documents were sent only in 2020 to the Graaff- Reinet District Office.
19. The ELRC Collective agreement 1 of 2008 at clause 5.10.2 states as follows:
“An employee in a one teacher school and acting as principal, shall gain at least six (6) notches (6%) while appointed in such a post.”
20. The ELRC Collective agreement 1 of 2008 at clause 5.12 states as follows:
“The existing provisions for the payment of an acting allowance will apply. In cases where the acting person’s current salary equals or exceeds the commencing notch of the higher post that applies to the position in which the person is acting, the acting allowance that will apply is six notches.”
21. It was common cause that the acting allowance as per the initial appointment letter of the Applicant to act as principal indicated an allowance of R 2 097.25 per month, with effect 01/04/2018.
22. The referral of the dispute in question refers to Enforcement of Collective Agreement 8 of 2003.
Clause 69 of the dispute resolution procedures of the ELRC provides for the enforcement of
collective agreements.
23. In Western Cape Department of Health v Van Wyk and Others, (2014) 35 ILJ 3078 (LAC) at
para 22, the Labour Appeal Court held:
“In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives all his/her powers from the Act he/she must at all times take into account the primary objects of the Act... “
The LAC went on to hold:
„The primary objects of the Act are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.‟
24. In CUSA v Tao Ying Metal Industries and Other [2009] 1 BLLR 1 (CC) at paras [55] and [56],
the Constitutional Court emphasized the importance and the rights that Collective Agreements give effect to as follows:
‘[55] The issues raised in this case are matters of public interest. This case also concerns the enforcement of a bargaining council agreement which sets out minimum wages and other conditions of employment and requires us to apply the provisions of the LRA. The right of every trade union and every employers’ organisation and employer to engage in collective bargaining is entrenched in section 23(5) of the Constitution. The concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process.
[56] Compliance with a collective bargaining agreement is crucial not only to the right to bargain collectively through the forum constituted by the bargaining council, but it is also crucial to the sanctity of collective bargaining agreements. The right to engage in collective bargaining and to enforce the provisions of a collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched. The enforcement of these agreements is indeed crucial to a society which, like ours, is founded on the rule of law.’
25. The Respondent must comply with the terms and conditions of the collective agreement.
26. The Respondent conceded that the Applicant was acting as School Principal and that she did not receive the acting allowance for the period 1 August 2018 until 31 December 2018.
27. Considering all the above, the Applicant, J Du Plessis (persal no.50671481) is entitled to an acting allowance for the period 1 August 2018 - 31 December 2018 and is entitled to an amount of R 10 486.25, plus interest at 10.25% per annum from 1 September 2018 until date of payment.
AWARD
28. The Respondent, Department of Education-EC is ordered to pay the Applicant, J. Du Plessis
persal no.50671481) the acting allowances in the amount of R10 486.25, plus interest at 10.25% per annum from 1 September 2018 until date of payment.
29 The above-mentioned amount must be paid by the Respondent to the Applicant by no later than 20 April 2020 and would be subjected to normal statutory deductions.
30. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment of
R10 486.25, plus interest at 10.25% per annum from 1 September 2018 until date of payment, effected to the Applicant, J Du Plessis (persal no.50671481).
Signature:
Commissioner: Hadley Saayman
Sector: Education