Case Number: ELRC1060-19/220EC
Province: Eastern Cape
Applicant: SAOU obo Arno van Damme
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Venue: The hearing was held via Zoom (virtual)
Award Date: 16 July 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: ELRC1060-19/220EC
Date of Award: 16 July 2020
In the ARBITRATION between:
SAOU obo Arno van Damme
(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: Ms Sikithi
Respondent’s address: Private Bag x 00032
Telephone: (041) 403 4448
Telefax: (039) 2570956
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 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 10 July 2020 and the proceedings were electronically recorded. The applicant, Arno van Damme 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 Ms Sikithi, an Assistant Director: Labour Relations.
ISSUE TO BE DECIDED
2. A dispute concerns the refusal and or failure of the respondent to pay the applicant his study bursary reimbursements arising from bursary awarded to the applicant that was also contractually agreed to between the parties.
BACKGROUND TO THE ISSUES
3. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
3.1 The applicant, an educator was awarded a study bursary on 7 February 2019 for academic fees for 2019
3.2 The applicant during November 2019 submitted an invoice to the respondent for the payment of registration and academic fees for 2019.
3.3 The respondent contrary to a confirmation letter of bursary 2019 and contract has failed to reimburse the applicant for registration and academic fees he had paid to the University of Johannesburg.
3.4 The amount indebted to the applicant amount to R11 770.00.
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 that according to a confirmation letter of bursary 2019, he was to receive a bursary, the maximum amount of R16 000 for the 2019 academic year. In terms of the letter, the amount paid by the respondent would be a reflection of the statement of account for the applicant’s fees for 2019 and this would be in line with the respondent’s policy on payment of fees. The payment was for the study year 2019 and not for the entire course. The amount allocated would cover registration and tuition fees only. He was required to enter into a legally binding contract with the respondent and to return the contract to the respondent before payment is processed and this he did. The respondent in terms of the letter would not pay for subjects/modules failed by the bursary holder if he or she had to repeat those subjects. The bursary was for him to study Master’s degree in Education, Education Management from the University of Johannesburg. He submitted to the respondent the University of Johannesburg statement/invoice and therein it reflected that he had paid the University of Johannesburg an amount of R11770.00.
6. The respondent did not dispute the applicant’s entitlement as claimed and explained that the problem as it relates to refunding the applicant was with their Head Office in Bhisho.
7. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
7.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
7.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
8. Clause 69(1) 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.
9. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
9.1 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
9.2 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;
10. Clause 69.5 provides that the General Secretary may 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.
11. Clause 69.6 provides that a panellist, conducting an 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.
12. 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.
14. The awarding of a bursary to the applicant that had been confirmed by a confirmation letter and followed up with a contract forms part of the applicant’s conditions of service and therefore that forms part of the applicant’s contract of employment. The ELRC therefore has the powers and jurisdiction in terms of clause 7.2.2 of ELRC Resolution 6 of 2016 to enforce compliance with an educator’s contract of employment. The right the applicant is seeking to enforce coincidently is also a contractual benefit. The entitlement to the amount claimed was agreed to between the parties.
15. 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)
16. I must take into account the administrative restrictions that Covid 19 has placed on the respondent due to staff shortage and therefore this award should take that into consideration as to when the respondent should be ordered to pay the applicant the reimbursement amount claimed.
17. I must complement the respondent’s representative for her honesty and integrity in these proceedings that assisted in resolving the dispute between the parties.
18. The respondent, the Department of Education: Eastern Cape is in breach of the terms of the contractual study bursary awarded to the applicant for the academic year 2019 that constitutes a basic condition of employment which constitutes a term of the applicant’s contract of employment by not reimbursing the applicant for the actual registration and academic fees for 2019.
19. The respondent, the Department of Education: Eastern Cape is ordered to pay the applicant, Arno van Damme (persal number 55504361) an amounting to R11770.00.that equate to actual registration and academic fees for the academic year 2019.
20. The amount as referred to in paragraph 19 must be paid to the Applicant by no later than 30 September 2020.
Name: Jonathan Gruss