Case Number: PSES 840-19/20EC
Province: Eastern Cape
Applicant: SAOU obo Marius Germishuys
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: District Office in Port Elizabeth on
Award Date: 22 March 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: PSES 840-19/20EC
Date of Award: 22 March 2020
In the ARBITRATION between:
SAOU obo Marius Germishuys
(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 Xhalisile
Respondent’s address: Private Bag x 3915
Telephone: (041) 403 4448
Telefax: (041) 403 4497
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the District Office in Port Elizabeth on 19 March 2020. The proceedings were electronically recorded. The Applicant, Marius Germishuys appeared in person and was represented by Ms Van Wyk, an official from SAOU, a registered trade union. The Respondent, Department of Education: Eastern Cape was represented by Mr Xhalisile, a Labour Relation Officer in the employ of the Respondent.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA as it relates to benefits with regard to the failure to pay the Applicant his resettlement costs.
3. The following was recorded as common cause at the commencement of the arbitration.
3.1 The Applicant was appointed as Principal at Framesby High School in Port Elizabeth on 10 January 2020 after applying for the post that was externally advertised. He was appointed as from 1 February 2020 although he only took up his post, on 1 April 2019.
3.2 Prior to his appointment, he was a Deputy Principal as Ben Vijoen School in Groblersdal in Limpopo.
4. There were no factual or legal issues in dispute.
5. The ULP claim is founded on paragraphs 4.3, 4.4 and 7.1.6 on a Resettlement policy .
ANALYSIS OF EVIDENCE AND ARGUMENT
6. The Applicant testified under oath to the following effect.
6.1 He confirmed the common cause facts as set out in paragraphs 3.
6.2 He applied for the resettlement benefits from the Respondent and was told that there was no money. He was also told that he must cover the costs himself and asked his SGB for assistance.
6.3 As prescribed, he obtain three quotations for the removal of his household, Pickfords quote amounted to including vat R230 331, 20. This quote included a shuttle of a vehicle to the new destination. He also obtain a quote from Stuttaford’s Van Lines and there quote amounted to including vat R98 632, 10. This quote also included the transport of one vehicle. The third quote he obtained from AGS Worldwide Movers , there quote including Vat amounted to R140 365, 60. Unfortunately, although presenting the quotes to the Respondent, he got no response from them. He then had to use Milltrans in that the companies who quoted required payment upfront before relocating his household. Whereas, the Framesby SGB arranged with Milltrans to move his household and that he could pay for the removal after receiving payment from the Respondent. The removal cost as per quotation amounted to R80 000.00 in that he owes now Milltrans this amount. What Milltrans did was to offload a container at his residence in Groblersdal and he had to pack his household into the container himself.
6.4 His is also claiming for a pre-visit costs he incurred and he has already submitted a claim for that, he is in addition claiming transport costs for both his vehicles, his daughter school uniforms and his overnight stay whilst driving to Port Elizabeth. Mrs Serforntein from the Port Elizabeth District Office who is responsible resettlement costs assisted him in completing the claim forms that contained proof of expenditure. She ensured that the right amount was claimed.
6.5 As per transport and subsistence claim , he is claiming R9339.84 for his pre-visit for travelling from Groblersdal to Port Elizabeth and return, 2 558 km. He is also claiming for the transport costs for his and his wife’s car, driving the vehicles from Groblersdal to Port Elizabeth. He is claiming for a Suzuki Vitara 1.6 GL, 2017 Model, SUV, and Engine 1600 for travelling 1269 km an amount of R4782.18 and for their Ford Bantam, 2007 model, bakkie, Engine 1300 for travelling 1269 km an amount of R3872.51. He is also claiming cloths for his daughter’s school that she had to change schools from, Julian Muller Primary School in Groblersdal to Charlo Primary School in Port Elizabeth, the claim amounts to R1501.00 and an invoice from Charlo Primary School for the expenditure is attached. He is also claiming for staying over, overnight in Colesberg in that amount of R1200.00 for a family unit. The total amount claimed for transport and subsistence is R30 035.17.
7. The Respondent’s stance was that there was nothing to defend.
8. The Applicant has founded his entitlement on the resettlement policy of the Northern Cape Department of Education. The policy is not applicable to the Department of Education: Eastern Cape.
9. However, Regulation 90 of the Regulations regarding the Terms and Conditions of Employment of Educators makes provision for the reimbursement of resettlement expenditure under certain conditions. The regulation provides as follows:
90. (1) 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:
(a) The head of education, within the context of the provisions, determine policy regarding aspects such as maximum periods of compensation, limits of expenditure, restrictions in respect of the quantity and kind of personal effects, the number and brand of motor vehicles, classes of travel, means of transport, costs of property transfer and any other possible form of expenditure or facet of transfer costs which may come to the fore.
(b) In considering the implications in terms of costs, it must be seen to that effective competition takes place where services are rendered for the purpose of resettling an educator or employee and that all available alternatives are taken into consideration to ensure that the most suitable option is exercised under the circumstances.
(c) The status of the educator being resettled in terms of his or her rank and taking into account the particular circumstances and underlying reasons.
(d) The principle of fairness and reasonableness by the employer in the application of the relevant measures.
(e) The delegation of any of the powers vested in the Minister in terms of the provisions of this regulation, must be done taking into account the provisions of the Exchequer Act, 1975 (Act No. 66 of 1975).
(2) The following expenses shall be payable to an educator on transfer:
(a) The accommodation and transport expenditure of an educator and a member of his or her household arising from a visit beforehand to the new headquarters.
(b) The 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.
(c) The expense of storage of personal effects as well as the all-inclusive insurance thereof.
(d) The expense of interim accommodation at the old or new headquarters.
(e) The expense of customs duty, or other levies or fees arising from the transport of private motor vehicles across international borders.
(f) The transfer expense arising from the purchase of a dwelling or a building site and the erection of a building thereon which expenses shall include the costs of conveyance of the property, mortgage costs, expenses arising from the drafting of a contract and inspection fees: Provided that when transfer expenses are included in a mortgage loan, payment shall not be made to the educator personally, but directly to his or her mortgage loan account.
(g) A single amount as determined by the head of education for each child attending school as assistance towards the expenditure of school books, uniforms, sport outfits and other requirements: Provided that the amount shall be effective from a date determined by the Minister and shall be revised quarterly on 1 January, 1 April, 1 July and 1 October, respectively, on the grounds of price increases as reflected in the Central Statistical Service’s Consumer Price Index for Clothing and footwear for the first month of the previous quarter, rounded-off for the nearest higher full rand.
(h) A single amount to meet incidental expenses arising from resettlement, other than those for which specific provision is made in this regulation on the following basis:
(i) If furnished accommodation is occupied permanently an amount equal to 35% of an educator’s basic monthly pensionable salary as on the date of resettlement.
(ii) If unfurnished accommodation is occupied permanently an amount equal to 50% of a single educator’s basic monthly pensionable salary as at the date of resettlement, or an amount equal to the basic monthly pensionable salary of an educator with dependents as on the date of resettlement.
(iii) An amount equal to 35% of the monthly norm station allowance in the local monetary unit as on the date of resettlement in the case of an educator who is transferred to a foreign country:
Provided that if the amount referred to in subparagraph (i) or (ii) is less than an amount calculated in accordance with the applicable percentage referred to in the said paragraphs and based on the monthly pensionable salary in the first salary position of salary range 8, the applicable amount based on the last mentioned basis must be paid: Provided further that the amount referred to in subparagraphs (i) and (ii) shall not exceed an amount based on the basic monthly pensionable salary of a Director: Education.
[Proviso to reg. 90(2)(h)(iii) amended by G.N. No. 1153 of 1997 dated 1 September 1997.]
(i) The home owner allowance in respect of a dwelling at the previous headquarters may be continued with if the Member of the Executive Council so determine.
(j) The travelling expenses incurred by an educator’s school attending children who remain at the old headquarters for a period not exceeding a school year: Provided that such expenditure shall be limited to the most economical means of travel to and from the new headquarters at the beginning and end of school holidays and at the end of the school year.
(3) (a) The travelling as well as transport expenses, insurance costs and storage costs for not longer than one month, of the personal effects of a candidate and his or her household who, on appointment in terms of the Act, necessarily has to relocate may be compensated on the same basis as that provided for in subregulation (2).
(b) Persons referred to in paragraph (a) shall be bound contractually in writing to be in the service of the employer concerned for a period of not less than 12 months.
(4) The accommodation and transport expenditure of an educator and his household who is expected to do parliamentary duty, at the beginning and end of a parliamentary session as well as the conveyance to and from Cape Town of essential personal effects and the all-inclusive insurance cover thereof may be compensated on the basis determined by the Minister.
(5) (a) 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.
(b) The expenses provided for in subregulation (2)(b) may be paid mutatis mutandis on termination of service to an educator who was recruited abroad or his or her household in the case of his or her death, from his or her existing place of residence back to the place where initially recruited.
(6) It an educator dies whilst on official duty away from his or her headquarters or whilst stationed abroad, including a member of his or her family who accompanies him or her officially, expenses arising there from (excluding funeral costs), shall be paid.”
9. The dispute referred was in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
“Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”
10. In the Labour Court case Trans-Caledon Tunnel Authority v. Commission for Conciliation, Mediation and Arbitration & Others (2013) 34 ILJ 2643 (LC) the judge confirmed that the provisions regarding unfair labour practice cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies not previously provided by the employer. However, where there is a claim about the unfair conduct of the employer in relation to the existing employment structure, conditions of employment, policies or practices, it could be referred to the CCMA as an unfair labour practice relating to benefits.
11. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC) at para 50 the Court applied these general principles applicable to the challenge of the exercise of discretion on the basis of being unfair, as follows: ‘… unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.’
‘In my view, the better approach would be to interpret the term “benefit” to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgment “benefit” in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.’
12. The court thus held that benefits can include remuneration. They went on to say that the term benefit should be interpreted to include a right or entitlement to which the employee is entitled, as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice (subject to the employer’s discretion).
13. It is clear based on the evidence and documentation presented, the Applicant is entitled to claim for reasonable costs for a pre-visit, the removal of his household from Groblersdal to Port Elizabeth, the traveling costs for his two vehicle from Groblersdal to Port Elizabeth, school uniforms for his child who is moving schools because of the transfer and the accommodation cost for his stopover in Colesberg.
14. I am satisfied that the Applicant is entitled to the resettlement benefits and the costs incurred and the claims are reasonable. The fact that the Respondent’s Head Office has not processed his claim although in possession thereof and they allegedly do not have the money to pay the claim, does not exonerate them and definitely it does not distinguished the Applicant’s resettlement costs benefits.
15. I therefore make the following award.
16. I find that the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA relating to benefits in that they failed to pay the Applicant, Marius Germishuys his reasonable resettlement costs.
17. The Respondent, Department of Education: Eastern Cape is ordered to pay the Applicant, Marius Germishuys as follows:
17.1 The removal cost as per quotation of Milltrans amounting to R80 000.00;
17.2 The pre-visit transport costs amounting to R9339,84;
17.3 Transport costs for Zuzuki Vitara amounting to R4782.18;
17.3 Transport costs for the Ford Bantam Bakkie amounting to R3872,51;
17.4 Charlo Primary school cloths for the Applicant’s daughter amounting to R1501.00;
17.5 Colesberg accommodation costs amounting to R1200.00.
18 The total amount as reflected in paragraph 18 above, amounting to R110 035.19 is to be paid by the Respondent, Department of Education: Eastern Cape to the Applicant, Marius Germishuys by no later than 29 May 2020.
Name: Jonathan Gruss