Case Number: ELRC972-19/220EC
Province: Eastern Cape
Applicant: Heidi Melody Du Preez
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: The hearing was held via Zoom (virtual)
Award Date: 26 July 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: ELRC972-19/220EC
Date of Award: 27 July 2020
In the ARBITRATION between:
Heidi Melody Du Preez
Department of Education: Eastern Cape
Applicant’s representative: In person
Applicant’s address: 13 Du Toit Avenue
Telephone: 0422432258 or 0766927703
Email : firstname.lastname@example.org
Respondent’s representative: Mr Tshabe
Respondent’s address: Private Bag x 00032
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, Heidi Melody Du Preez referred an enforcement dispute to the ELRC. The applicant represented herself and the respondent, Department of Education – Eastern Cape was represented by Mr Tshabe, an Assistant Director: Labour Relations. The Mr Tshabe undertook to provide written submission as to quantum in that the entitlement as claimed was not in dispute. Mr Tshabe initially undertook to provide quantum amounts to be paid to the applicant on 11 July 2020 after consulting those responsible who work with salaries, the initial amounts put forward on 14 July 2020 was incorrect and Mr Tshabe was granted an indulgence until 22 July 2020. Unfortunately, Mr Tshabe failed to supply quantum amounts although granted an indulgence to do so.
ISSUE TO BE DECIDED
2. The A dispute concerns the refusal and or failure of the respondent to pay the applicant her salary for the period May 2019 to September 2019 as a tutor and further 37% allowance in lieu of benefits for the period October 2019 to December 2019 when she was a substitute teacher.
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, during the period May 2019 to September 2019 (5 months) worked as a tutor at Lonwabo High School teaching two subjects, Afrikaans HL and Geography per day. The applicant worked 4 days per week. The respondent has failed to pay the applicant for tutoring.
3.2 The initial claim included a claim for salary as a substitute teacher at Adelaide Gymnasium for the period October 2019 to December 2019. However, an amount of R48 875.16 was paid into her account by the respondent on 22 June 2020. This amount was for working as a substitute teacher.
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 and confirmed the correctness of the common cause facts as set out in paragraph 3. She further indicated that it was agreed when she commenced working as a tutor that she would earn R22000.00 per month. She worked 4 days a week and taught 2 subjects per day.
6. The respondent admits that they are indebted to the applicant for tutoring at Lonwabo High School over the period May 2019 to September 2019 and also owe her 37% allowance in lieu of benefits for working as a substitute teacher over the period October 2019 to December 2019.
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(2) also 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 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.
10. 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.
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. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money –
• in South African currency;
• daily, weekly, fortnightly or monthly; and
• in cash, by cheque or by direct deposit into an account designated by the employee.
13. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
14. PSCBC Resolution 1 of 2007, provides that a contract workers, appointed for a fixed periods shall receive benefits on the following basis with effect from 1 July 2007: (i)A Contract Worker employed for less than six months shall receive his/her basic salary plus 37% in lieu of benefits, excluding leave benefits.
15. Clause 5.1 of the Personnel Administrative Measures (PAM) (2016) provides that educators are paid on a per hourly basis for tuition or full-time educators who perform paid overtime duties. Sub-clause 5.1.1 provides for the following tariffs are applicable in respect of formal tuition contact hours: Tuition in an educational context up to and including Grade 12 are calculateds by 2 different formulas and in the case of educators on a personal salary position,: tThe last salary position of an educator’s applicable salary range. The formulas differentiate by qualification and provides for qualifications of REQV 13 and higher and qualifications lower than REQV 13. The formula for qualifications of REQV 13 and higher provides for OSD notch code 108 divided by 900 rounded off to the nearest five cents. As it relates to the formula qualifications lower than REQV 13, the formula provides for OSD notch code 55 divided by 900 rounded off to the nearest five cents.
16. The applicant claims that she was informed that she would earn R22 000.00 per month working 4 days per week, tutoring 2 subjects per day, unfortunately PAM prescribes how payment for tutoring is calculated and any determination made must be in-line with the PAM.
17. According to the 2019 OSD Codes as per National Treasury, Persal Notice Number 355 dated 22 August 2019, that prior to 1 July 2019, OSD notch code 108 was R211098 and after 1 July 2019 the notch was R211731. The uncontested evidence of the applicant was that during the period May 2019 to September 2019, she was tutoring 4 days a week, 2 classes per day (1 hr. per class) and considering school holidays and terms during the period 2 May 2019 to 20 September 2019, the applicant worked 70 days, this that amounts to 140 hours. Prior to 1 July 2019, the hourly rate for the applicant as prescribed by PAM was R234.55 and post 1 July 2019, the hourly rate was R235.26. The amount owing to the applicant for tutoring over the period 2 May 2019 to 20 September 2019 amounts to R32 936.40.
18. As to the 37% allowance for substituting for the period, 1 October 2019 to 6 December 2019, the applicant was paid R48 875.16, this amount as I understand must reflect a net amount after tax was deducted. Therefore, 37% of R48875.16 equates to R18083.80 after tax.
19. 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)
20. I must complement the respondent’s representative for his honesty and integrity in these proceedings that assisted in resolving the dispute between the parties, unfortunately the, undertaking to supply quantum calculations was not forth coming.
21. The respondent, the Department of Education: Eastern Cape is hereby ordered to comply with the provisions of section 32 of the BCEA, and is ordered to pay the applicant, Heidi Melody Du Preez (Persal 53048903):
21.1 As it relates to tutoring remuneration over the period 2 May 2019 to 20 September 2019 an amount of R32 936.40.
21.2 As it relates to 37% allowance in lieu of benefits when she was substituting on a ffixed term contract over the period, 1 October 2019 to 6 December 2019, an amount of R18083.80 after tax
22. As it relates to the amounts as referred in sub-paragraph 21. 1 and 21.2 payments must be paid into the applicant’s bank account, Capitec Account Number 1241770776, Branch Code 470010 by no later than 31 August 2020.
Name: Jonathan Gruss