ELRC1068-19/20KZN
ELRC1068-19/20KZN
Award Date:
20 September 2020
Case Number: ELRC1068-19/20KZN
Province: KwaZulu-Natal
Applicant: Abdul Bademba Barrie
Respondent: Department of Higher Education & Training
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 20 September 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: ELRC1068-19/20KZN
Date of Award: 20 September 2020
In the ARBITRATION between:
Abdul Bademba Barrie
( Applicant)
and
Department of Higher Education & Training
(Respondent)
Applicant’s representative: In person
Applicant’s address: 25 Marine Plaza, 185 Oliver Tambo Parade, North Beach
Durban
4001
Telephone: 031 2627700 / 0728820435
Email : barriea2002@gmail.com
Respondent’s representative: Mr Tshabe
Respondent’s address: 262 D Aintree Avenue, Asherville
Durban
4092
Telephone: 031 2508400
Email info.thekwini@feta.gov.za
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 18 September 2020 and the proceedings were electronically recorded. The applicant, Abdul Bademba Barrie referred an enforcement dispute to the ELRC. The applicant represented himself and the respondent, Department of Higher Education & Training was represented by Mr Ndela.
ISSUE TO BE DECIDED
2. This dispute concerns the refusal and or failure of the respondent to pay the applicant his salary for the month of February 2019, March 2019 and part of April 2019 (1 to 23 April 2019) as well as his bonus that should have been paid at the end of May 2019.
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 February 2019 to April 2019 worked and lectured at Ethekwini TVET College. He, during the period in question, was employed by the Department of Higher Education & Training on a fixed term contract in that as a foreign national (Sierra Leone) he could only be employed on a fixed term contract. He is still employed by the respondent.
3.2 The applicant’s annual bonus that is normally paid at the end of May 2019, his birthday month, equates to a month’s salary, he was only paid R500.00.
3.3 The respondent started remunerating the applicant only on 24 April 2020, therefore he was not remunerated for the period 1 to 23 April 2019.
3.4 For the month of February 2019 and March 2019 including allowances, he should, before taxation, have been remunerated in the amount of R 30 145.22 per month. During April 2018 for the period 1 to 23 April 2019, he should, before taxation, have been remunerated in the amount of R 24 362.18. Considering he was only paid R500.00 bonus at the end of May 2020, he should, prior to taxation, have been remunerated in the amount of R 29 867.01 in respect of his bonus for May 2019.
3.5 The total amount indebted to the applicant as calculated in paragraph 3.4 prior taxation amounts of R 114 519.63.
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 fact as set out in paragraph 3. He further testified that 2 months before his work permit expired, he applied for the renewal of his work permit that was renewed as from 13 December 2018. His fixed term contract that he was employed on expired on 25 February 2019. He signed an acceptance of an extension offer of his fixed term contract on 28 February 2019, the offer was dated 25 February 2019.
6. Mr Ndelu submitted that the non-payment of the applicant’s salary as claimed was as a result of bureaucracy in that as it relates to persal functions this is done in Tshwane / Pretoria although at the College where the applicant physically worked, the necessary admin was attended to and the documentation was forwarded to their Head Office. The applicant’s entitlement is admitted as claimed.
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. The payment of any employee’s wages forms part of his conditions of service.
14. PSCBC Resolution 3 of 1999, Annexure B provides as it relates to service bonus, an employee shall receive a service bonus if he or she has a permanent contract or a fixed term contract lasting more than three months; in the year ending his or her bonus date, does not resign or be dismissed due to misconduct. The bonus date of an eligible employee born between April and December shall fall on the month of his or her birthday; the bonus date of eligible employees born between January and March shall fall in April. If an eligible employee has worked for full year to the bonus date, he or she shall receive a month’s salary after deductions for the GEPF.
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 complement the respondent’s representative for his honesty and integrity in these proceedings. His approach assisted in resolving the dispute between the parties.
AWARD
17. The respondent, the Department of Higher Education and Training is hereby ordered to comply with the provisions of section 32 of the BCEA, and is ordered to pay the applicant, Abdul Bademba Barrie (Persal 28334469 / PG63):
17.1 As it relates to February 2019 salary, an amount of R 30 145.22
17.2 As it relates to March 2019 salary, an amount of R 30 145.22.
17.3 As it relates to April 2019 salary for the period 1 April to 23 April 2019, an amount of R 24 362.18
17.4 As it relates to the service bonus that includes the amount already paid, an amount of R 29 867.01.
18. As it relates to the amounts as referred in sub-paragraph 17.1 to 17.4 payments must be paid to the applicant’s bank account, the total amount of R114 519.63 subject to statutory deductions and taxation is to be paid by no later than 30 October 2020.
_______________________
Name: Jonathan Gruss
(ELRC) Arbitrator
Province: KwaZulu-Natal
Applicant: Abdul Bademba Barrie
Respondent: Department of Higher Education & Training
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 20 September 2020
Arbitrator: Jonathan Gruss
Panelist: Jonathan Gruss
Case No.: ELRC1068-19/20KZN
Date of Award: 20 September 2020
In the ARBITRATION between:
Abdul Bademba Barrie
( Applicant)
and
Department of Higher Education & Training
(Respondent)
Applicant’s representative: In person
Applicant’s address: 25 Marine Plaza, 185 Oliver Tambo Parade, North Beach
Durban
4001
Telephone: 031 2627700 / 0728820435
Email : barriea2002@gmail.com
Respondent’s representative: Mr Tshabe
Respondent’s address: 262 D Aintree Avenue, Asherville
Durban
4092
Telephone: 031 2508400
Email info.thekwini@feta.gov.za
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 18 September 2020 and the proceedings were electronically recorded. The applicant, Abdul Bademba Barrie referred an enforcement dispute to the ELRC. The applicant represented himself and the respondent, Department of Higher Education & Training was represented by Mr Ndela.
ISSUE TO BE DECIDED
2. This dispute concerns the refusal and or failure of the respondent to pay the applicant his salary for the month of February 2019, March 2019 and part of April 2019 (1 to 23 April 2019) as well as his bonus that should have been paid at the end of May 2019.
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 February 2019 to April 2019 worked and lectured at Ethekwini TVET College. He, during the period in question, was employed by the Department of Higher Education & Training on a fixed term contract in that as a foreign national (Sierra Leone) he could only be employed on a fixed term contract. He is still employed by the respondent.
3.2 The applicant’s annual bonus that is normally paid at the end of May 2019, his birthday month, equates to a month’s salary, he was only paid R500.00.
3.3 The respondent started remunerating the applicant only on 24 April 2020, therefore he was not remunerated for the period 1 to 23 April 2019.
3.4 For the month of February 2019 and March 2019 including allowances, he should, before taxation, have been remunerated in the amount of R 30 145.22 per month. During April 2018 for the period 1 to 23 April 2019, he should, before taxation, have been remunerated in the amount of R 24 362.18. Considering he was only paid R500.00 bonus at the end of May 2020, he should, prior to taxation, have been remunerated in the amount of R 29 867.01 in respect of his bonus for May 2019.
3.5 The total amount indebted to the applicant as calculated in paragraph 3.4 prior taxation amounts of R 114 519.63.
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 fact as set out in paragraph 3. He further testified that 2 months before his work permit expired, he applied for the renewal of his work permit that was renewed as from 13 December 2018. His fixed term contract that he was employed on expired on 25 February 2019. He signed an acceptance of an extension offer of his fixed term contract on 28 February 2019, the offer was dated 25 February 2019.
6. Mr Ndelu submitted that the non-payment of the applicant’s salary as claimed was as a result of bureaucracy in that as it relates to persal functions this is done in Tshwane / Pretoria although at the College where the applicant physically worked, the necessary admin was attended to and the documentation was forwarded to their Head Office. The applicant’s entitlement is admitted as claimed.
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. The payment of any employee’s wages forms part of his conditions of service.
14. PSCBC Resolution 3 of 1999, Annexure B provides as it relates to service bonus, an employee shall receive a service bonus if he or she has a permanent contract or a fixed term contract lasting more than three months; in the year ending his or her bonus date, does not resign or be dismissed due to misconduct. The bonus date of an eligible employee born between April and December shall fall on the month of his or her birthday; the bonus date of eligible employees born between January and March shall fall in April. If an eligible employee has worked for full year to the bonus date, he or she shall receive a month’s salary after deductions for the GEPF.
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 complement the respondent’s representative for his honesty and integrity in these proceedings. His approach assisted in resolving the dispute between the parties.
AWARD
17. The respondent, the Department of Higher Education and Training is hereby ordered to comply with the provisions of section 32 of the BCEA, and is ordered to pay the applicant, Abdul Bademba Barrie (Persal 28334469 / PG63):
17.1 As it relates to February 2019 salary, an amount of R 30 145.22
17.2 As it relates to March 2019 salary, an amount of R 30 145.22.
17.3 As it relates to April 2019 salary for the period 1 April to 23 April 2019, an amount of R 24 362.18
17.4 As it relates to the service bonus that includes the amount already paid, an amount of R 29 867.01.
18. As it relates to the amounts as referred in sub-paragraph 17.1 to 17.4 payments must be paid to the applicant’s bank account, the total amount of R114 519.63 subject to statutory deductions and taxation is to be paid by no later than 30 October 2020.
_______________________
Name: Jonathan Gruss
(ELRC) Arbitrator