ELRC102-20/21EC
ELRC102-20/21EC
Award Date:
21 October 2020
Case Number: ELRC102-20/21EC
Province: Eastern Cape
Applicant: SAOU Eastern Cape obo Carl, SNYMAN
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 21 October 2020
Arbitrator: Livhu Nengovhela
Case Number: ELRC102-20/21EC
Arbitrator: Livhu Nengovhela
Date of Award: 21 October 2020
In the MATTER between
SAOU Eastern Cape obo Carl, SNYMAN
(Union/Applicant)
And
Education Department of Eastern Cape
(Respondent)
Union/Applicant’s representative: Ms Venita Van Wyk
Union/Applicant’s address: SAOU
14 NAESTED STREET, CRADOCK
5880
5318
Telephone: 0413640500 / 0845130752
Telefax: 0413640510 /
E-mail: Carl.snyman88@gmail.com / Venitavw@saou.co.za JojanK@saou.co./za
Respondent’s representative: Mr Thobelani Mlahleni
Respondent’s address: Provincial Department of Education: Eastern Cape
Chris Hani West, XMasibulele College Building Building B
Whittlesea, Cradock
5360
Telephone: 0458588900 /079 523 7915
Telefax: 041 364 0510
E-mail: buzanikwepile@gmail.com/thobela.mlahleni@ecdoe.gov.za
Thando.makina@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between SAOU obo Carl Snyman, the applicant, and the Department of Education – Eastern Cape, the Respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations LRA 66 of 1995 as amended (the LRA) and the award is issued in terms of section 138(7) of the LRA. The arbitration was held virtually, through the Zoom platform. The applicant was present and he was represented by Ms Venita van Wyk, an assistant provincial secretary of SAOU. The respondent was represented by Mr. Thobelani Mlahleni, its Labour Relations Officer. The proceedings were digitally recorded through Zoom.
BACKGROUND TO THE DISPUTE
2. The Applicant was employed by the respondent as an educator in March 2017 at Grey High School in Port Elizabeth. He is currently deputy principal in Cradock.
3. The applicant was appointed on 9 July 2020 in Cradock at Cradock High School whereas he was based in Port Elizabeth.
4. The applicant is aggrieved that the respondent has failed to pay him his relocation costs and benefits since his transfer. He subsequently referred the matter to the ELRC on 27 July 2020 on the basis of Section 186(2)(a) of the LRA. The dispute was set down for Conciliation on the 06 August 2020 and the dispute remained unresolved at the end of the Conciliation process due to non- attendance by the respondent. The Commissioner subsequently issued a certificate of non-resolution of the dispute. The matter was set-down for arbitration before me on 30 September 2020.
ISSUE TO BE DECIDED
5. I am to determine whether the respondent’s failure to applicant’s relocation costs amounts to an unfair labour practice contemplated in terms of section 186(2) (a) of the LRA.
6. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
APPLLICANT’S CASE
Carl Snyman
7. Mr. Carl Snyman took oath and indicated that he started working for the respondent from March 2017. In July 2019 he was appointed to be a Deputy Principal in Cradock High School while working for Grey High School in Port Elizabeth. This transfer triggered benefits related to his relocation for the purpose of resettlement.
8. The applicant further indicated that he initially approached the district office in Cradock which initially declined his request for resettlement costs due to lack of knowledge. This was later clarified to them and asked him to submit all the necessary documents including the three quotations. The cheapest of the three quotations was from Biddulphs which was for R23, 287-50c, the amount he submitted for payment with Ms Winniefred Mtshakazana at the district office in August 2019.
9. He was again asked in October to submit the same documents by Mtshakazana, which he did on 3 October 2019. He did not know why he was asked to submit the same documents twice.
10. The witness further indicated that the district office called him in November and was informed that his application has already been processed at head office. Due to financial constrains experience by the respondent, he was informed, he will have to wait for February 2020.
11. The witness further indicated that February came and passed and had not received the payment at the time of the hearing. He subsequently decided to refer the matter to the ELRC to ensure his payment is made.
12. There was no cross-examination of the applicant by the respondent’s representative.
THE RESPONDENT’S CASE
Ms Ann Flepu
13. Ms Flepu took oath and stated that she was employed by the respondent as a Deputy Director Human Resources & Provisioning. She indicated that the resettlement allowance was for the applicant was processed by the district in October 2019. Payments are however centralised at Zwelitsha and files are also kept at Head office in Zwelitsa. She confirmed that the applicant is entitled to the amount he has claimed for resettlement.
14. She confirmed that the amount stated by the applicant is the amount to be paid by the respondent to the applicant.
15. The applicant further stated the delay in processing this claim was also caused by the COVID-19 Lockdown that the country experienced from March on or around 26 March 2020 to date.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
The
16. The witness of the respondent and the arguments submitted by the respondent confirmed the amount presented by the applicant that is the amount owed by the respondent in favour of the applicant.
17. They all acknowledged that the applicant’s claim for the benefits had taken too long and the claim was in terms of the relocation policy of the respondent.
18. In terms of section 185(b) of the LRA every employee has the right not to be subjected to unfair labour practice. Unfair labour practice in section 186(2)(a) means:
“Unfair conduct by the employer relating to the promotion, demotion, probation, …………… or relating to the provision of benefits to an employee”
19. In this case the applicant alleged that failure by the respondent to pay resettlement costs constitute unfair labour practice. This position of the applicant was unchallenged, but actually supported by the witness of the respondent and the representative of the respondent.
20. I therefore have no reason to doubt the version of the applicant that has been confirmed by the representative of the respondent and corroborated by the witness of the respondent.
21. In light of the above I find that, the failure by the respondent to pay the applicant his resettlement costs constitute an unfair labour practice in terms of section 186(2)(a) of the LRA. The respondent is therefore required to pay the applicant his resettlement costs amounting to = R23,287-50
22. I accordingly make the following award:
-AWARD
23. The failure to pay the applicant, Mr Carl Snyman, by the Respondent, The Department of Education – Eastern Cape Province, constituted unfair labour practice.
24. The Department of Education – Eastern Cape Province is ordered to pay Mr Carl Snyman, an amount of R23,287-50 (Twenty Three Thousand Two Hundred and Eighty Seven Rand and Fifty Cents)
25. The amount mentioned in the preceding paragraph above should be paid into Mr Snyman’s nominated bank account on or before Friday 06 November 2020.
ELRC Panellist
LIVHU NENGOVHELA
Province: Eastern Cape
Applicant: SAOU Eastern Cape obo Carl, SNYMAN
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 21 October 2020
Arbitrator: Livhu Nengovhela
Case Number: ELRC102-20/21EC
Arbitrator: Livhu Nengovhela
Date of Award: 21 October 2020
In the MATTER between
SAOU Eastern Cape obo Carl, SNYMAN
(Union/Applicant)
And
Education Department of Eastern Cape
(Respondent)
Union/Applicant’s representative: Ms Venita Van Wyk
Union/Applicant’s address: SAOU
14 NAESTED STREET, CRADOCK
5880
5318
Telephone: 0413640500 / 0845130752
Telefax: 0413640510 /
E-mail: Carl.snyman88@gmail.com / Venitavw@saou.co.za JojanK@saou.co./za
Respondent’s representative: Mr Thobelani Mlahleni
Respondent’s address: Provincial Department of Education: Eastern Cape
Chris Hani West, XMasibulele College Building Building B
Whittlesea, Cradock
5360
Telephone: 0458588900 /079 523 7915
Telefax: 041 364 0510
E-mail: buzanikwepile@gmail.com/thobela.mlahleni@ecdoe.gov.za
Thando.makina@ecdoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration between SAOU obo Carl Snyman, the applicant, and the Department of Education – Eastern Cape, the Respondent. The arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations LRA 66 of 1995 as amended (the LRA) and the award is issued in terms of section 138(7) of the LRA. The arbitration was held virtually, through the Zoom platform. The applicant was present and he was represented by Ms Venita van Wyk, an assistant provincial secretary of SAOU. The respondent was represented by Mr. Thobelani Mlahleni, its Labour Relations Officer. The proceedings were digitally recorded through Zoom.
BACKGROUND TO THE DISPUTE
2. The Applicant was employed by the respondent as an educator in March 2017 at Grey High School in Port Elizabeth. He is currently deputy principal in Cradock.
3. The applicant was appointed on 9 July 2020 in Cradock at Cradock High School whereas he was based in Port Elizabeth.
4. The applicant is aggrieved that the respondent has failed to pay him his relocation costs and benefits since his transfer. He subsequently referred the matter to the ELRC on 27 July 2020 on the basis of Section 186(2)(a) of the LRA. The dispute was set down for Conciliation on the 06 August 2020 and the dispute remained unresolved at the end of the Conciliation process due to non- attendance by the respondent. The Commissioner subsequently issued a certificate of non-resolution of the dispute. The matter was set-down for arbitration before me on 30 September 2020.
ISSUE TO BE DECIDED
5. I am to determine whether the respondent’s failure to applicant’s relocation costs amounts to an unfair labour practice contemplated in terms of section 186(2) (a) of the LRA.
6. As it is only required that an award with brief reasons be issued, following is a summary of the relevant evidence tendered under oath:
APPLLICANT’S CASE
Carl Snyman
7. Mr. Carl Snyman took oath and indicated that he started working for the respondent from March 2017. In July 2019 he was appointed to be a Deputy Principal in Cradock High School while working for Grey High School in Port Elizabeth. This transfer triggered benefits related to his relocation for the purpose of resettlement.
8. The applicant further indicated that he initially approached the district office in Cradock which initially declined his request for resettlement costs due to lack of knowledge. This was later clarified to them and asked him to submit all the necessary documents including the three quotations. The cheapest of the three quotations was from Biddulphs which was for R23, 287-50c, the amount he submitted for payment with Ms Winniefred Mtshakazana at the district office in August 2019.
9. He was again asked in October to submit the same documents by Mtshakazana, which he did on 3 October 2019. He did not know why he was asked to submit the same documents twice.
10. The witness further indicated that the district office called him in November and was informed that his application has already been processed at head office. Due to financial constrains experience by the respondent, he was informed, he will have to wait for February 2020.
11. The witness further indicated that February came and passed and had not received the payment at the time of the hearing. He subsequently decided to refer the matter to the ELRC to ensure his payment is made.
12. There was no cross-examination of the applicant by the respondent’s representative.
THE RESPONDENT’S CASE
Ms Ann Flepu
13. Ms Flepu took oath and stated that she was employed by the respondent as a Deputy Director Human Resources & Provisioning. She indicated that the resettlement allowance was for the applicant was processed by the district in October 2019. Payments are however centralised at Zwelitsha and files are also kept at Head office in Zwelitsa. She confirmed that the applicant is entitled to the amount he has claimed for resettlement.
14. She confirmed that the amount stated by the applicant is the amount to be paid by the respondent to the applicant.
15. The applicant further stated the delay in processing this claim was also caused by the COVID-19 Lockdown that the country experienced from March on or around 26 March 2020 to date.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
The
16. The witness of the respondent and the arguments submitted by the respondent confirmed the amount presented by the applicant that is the amount owed by the respondent in favour of the applicant.
17. They all acknowledged that the applicant’s claim for the benefits had taken too long and the claim was in terms of the relocation policy of the respondent.
18. In terms of section 185(b) of the LRA every employee has the right not to be subjected to unfair labour practice. Unfair labour practice in section 186(2)(a) means:
“Unfair conduct by the employer relating to the promotion, demotion, probation, …………… or relating to the provision of benefits to an employee”
19. In this case the applicant alleged that failure by the respondent to pay resettlement costs constitute unfair labour practice. This position of the applicant was unchallenged, but actually supported by the witness of the respondent and the representative of the respondent.
20. I therefore have no reason to doubt the version of the applicant that has been confirmed by the representative of the respondent and corroborated by the witness of the respondent.
21. In light of the above I find that, the failure by the respondent to pay the applicant his resettlement costs constitute an unfair labour practice in terms of section 186(2)(a) of the LRA. The respondent is therefore required to pay the applicant his resettlement costs amounting to = R23,287-50
22. I accordingly make the following award:
-AWARD
23. The failure to pay the applicant, Mr Carl Snyman, by the Respondent, The Department of Education – Eastern Cape Province, constituted unfair labour practice.
24. The Department of Education – Eastern Cape Province is ordered to pay Mr Carl Snyman, an amount of R23,287-50 (Twenty Three Thousand Two Hundred and Eighty Seven Rand and Fifty Cents)
25. The amount mentioned in the preceding paragraph above should be paid into Mr Snyman’s nominated bank account on or before Friday 06 November 2020.
ELRC Panellist
LIVHU NENGOVHELA