Case Number: PSES 927 19/20 EC
Province: Eastern Cape
Applicant: NAPTOSA obo Grace M Peterson
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Award Date: 26 August 2020
Arbitrator: Vuyiso Ngcengeni
Case : PSES 927 19/20 EC
Award Date of Award: 26 August 2020
Panelist : Vuyiso Ngcengeni
Province : Eastern Cape
Employee : NAPTOSA obo Grace M Peterson
Employer : Department of Education – Eastern Cape
Issue : Alleged Unfair Dismissal
Venue : Virtual
In the ARBITRATION between:
NAPTOSA obo Grace M Peterson Employee
Department of Education – Eastern Cape Employer
Employee representative: Adv Gavin D Saayman
Email : email@example.com
Employer representative: Mr Euan Hector
Email : Euan.Hector@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an uncontested award for the matter that was scheduled before me for arbitration on the 17 August 2020 under the auspices of the Education Labour Relations Council (the Council). The arbitration was heard virtually. The Employee was present and she was represented by Adv Gavin Saayman who is the union official. The Employer was represented by Mr Euan Hector who is an official of the Department of Education. The hearing was conducted in English.
2. The Employee submitted her Letter of Appointment and her payslip for November 2019 which reflects her ordinary earnings before she was terminated. She also submitted her pay-slips for March up to August 2020.
3. The dispute was set down in terms of section 186(1)(a) of the Act and as per the referral form, it is about benefits forfeited as a result of the alleged unfair dismissal.
ISSUE TO BE DETERMINED
4. I am required to determine whether the dismissal of the Employee by the Employer was unfair.
5. The Employee wants to be reinstated retrospectively and be reimbursed with all the salaries and benefits she might have lost.
BACKGROUND TO THE DISPUTE AND THE COMMON CAUSE ISSUES
6. The Employee was employed as a post level 1 Educator, based at Humansdorp Secondary School in the Sarah Baartman district, Eastern Cape. She was employed on 01 October 2018. She was terminated from employment on 31 December 2019. At the time of the termination of her employment, she earned R 23 686.50 per month.
7. As per the Employer’s version, the termination of the Employee’s services was an error that was caused by the Persal system. Theis matter then became a dispute as at 31 January 2020 and the Employee through her Union referred the dispute to the Council for conciliation. The matter was set down for conciliation duringon February 2020, and it remained unresolved. The Employee then referred the matter for arbitration on 27 February 2020.
8. The Employed was re-employed in March 2020 with effect from January 2020, and she was subsequently paid as follows-
Month Basic salary Medical Aid contribution by Employer Bonus Housing Allowance
November 2019 R 23 656.50 R 1 301.00 0.00 R 1 398.35
January R 23 656.50 R 0.00 R 0.00
February R 23 656.50 R 0.00 R 0.00
March R 23 656.50 R 0.00 R 0.00
April R 23 656.50 R 0.00 R 5 905.40
May R 23 656.50 R 0.00 R 0.00
June R 23 656.50 R 0.00 R 0.00
July R 23 656.50 R 0.00 R 0.00
August R 23 656.50 R 0.00 R 0.00
9. The Employee was entitled to a full bonus amount of R 23 656.50, and she was only paid R 5 905.40. The GEMS medical aid was only implemented from April 2020. The Housing allowance was not paid to the Employee. The Employer has also not paid the Pension benefits on behalf of the Employee, that is R 3 772.35 per month.
PRESENTATIONS MADE BY PARTY REPRESENTATIVES
The Employee representative made the presentation below:-
10. As the Employee was employed on 01 October 2018, and terminated on 31 December 2019, she is entitled to a full bonus amount, and that is R 23 656.50.
11. The Employee is also entitled to other benefits, including a housing allowance of R 1 398.35 per month. This amount should have been increased from 01 July 2019 by R 58.00, taking it to R 1 456.35. She is also entitled to pension and medical aid benefits.
12. All the benefits cited above need to be reinstated to the Employee.
13. All the Employees’ records need to be adjusted according to her employment date.
14. The Employee need to be issued with a reinstatement letter.
15. The Employer representative decided not to make any representations and said that the submission by the Employee representative is unopposed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
16. It is important to state at this stage, that the presentation made is unopposed as well as the authenticity of the documents submitted by the Employee.
17. In light of the foregoing, it is clear that the Employee was not reinstated, and instead was re-employed, something which is undoubtedly wrong and has prejudiced her in many ways, particularly when one looks at the opportunity the Employer have had to correct this situation and minimize the prejudice inflicted upon the Employee.
18. What remains mysterious in this whole affair is the reasons behind the delay, given the fact that the Employee brought this matter to the Employer’s attention as early as January, the month in which her services were terminated.
19. Indeed, in my view, there was no reason for the Employer’s failure to reinstate the Employee to remain for these many months, when there was no reason in the first place to terminate her services, leading to the prejudices suffered by the Employee.
20. The benefits forfeited by the Employee as a result of her untimely termination of employment, when seen within the context of what the Employer could have contributed as seen in the salary advise for November 2019 are as follows-
Month Basic salary Medical Aid contribution by Employer Pension fund contribution by Employer Bonus Housing Allowance
January R 23 656.50 R 1 301.00 R 1 751.00 R 0.00 R 1 398.35
February R 23 656.50 R 1 301.00 R 1 751.00 R 0.00 R 1 398.35
March R 23 656.50 (R 2 812.00) paid R 1 751.00 R 0.00 R 1 398.35
April R 23 656.50 R 1 301.00 R 1 751.00 R 17 751.10 R 1 398.35
May R 23 656.50 R 1 301.00 R 1 751.00 R 0.00 R 1 398.35
June R 23 656.50 R 1 301.00 R 1 751.00 R 0.00 R 1 398.35
July R 23 656.50 R 1 301.00 R 1 751.00 R 0.00 (R 1 398.35) paid
August R 23 656.50 R 1 301.00 R 1 751.00 R 0.00 R 1 398.35
Total R 7 596.00 R 14 008.00 R 17 751.10 R 9 788.45
22. The amounts reflected in the table above have been populated from the pay-slips provided in the annexures / documents. To the extent that the amounts aforementioned remain unpaid, clearly, the Employee is entitled to such.
23. The dismissal of the Employee by the Employer was substantively unfair.
24. The Employer is ordered to reinstate the Employee to the date not earlier than 01 October 2018.
25. The Employer is further ordered to pay the benefits indicated below-
25.1 contributions towards Employee’s medical aid: R 7 596.00
25.2 contribution towards Employee’s pension fund: R 14 008.00
25.3 housing allowance payable to the Employee: R 9 788.45
25.4 bonus / 13th cheque payable to the Employee: R 17 751.10
26. Furthermore, the Employer is ordered to pay the said amounts by no later than 30 September 2020
Panelist / Commissioner