ELRC1092-19/20FS
Award  Date:
11 November 2020
Case Number: ELRC1092-19/20FS
Province: Free State
Applicant: SAOU obo CHABELI J KATISO.
Respondent: HOD, DEPARTMENT OF EDUCATION FS
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 11 November 2020
Arbitrator: David Pietersen
THE MATTER BETWEEN

SAOU obo CHABELI J KATISO APPLICANT

VS

FREE STATE DEPARTMENT OF EDUCATION RESPONDENT

Case No: ELRC1092-19/20FS
Dates: 11 September 2020
Venue: Virtual (Zoom)

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This is the award in the arbitration matter between Suid-Afrikaanse Onderwys Unie (SAOU) representing its member Mr Katiso J. Chabeli (the applicant) and the Free State Department of Education (the respondent). The arbitration hearing took place on 11 September 2020 in the form of a Zoom Virtual Meeting. The applicant was represented by Mrs Hester Human, the Assistant Provincial Secretary of the trade union SAOU. The respondent was represented by Mr Thulo Tsunke, its Assistant Director Labour Relations.

2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 186(2)(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.

3. The proceedings were digitally recorded. The parties requested to submit heads of arguments on 11, 18 and 22 September 2020.

ISSUE TO BE DECIDED

4. I am called upon to decide whether the respondent committed an act of unfair labour practice: benefits by not paying a long service bonus to the applicant.

BACKGROUND TO THE DISPUTE

5. It is common cause that the applicant was employed by the respondent as an Educator on 01 January 1996. The applicant apparently resigned on 30 April 2016 and was re-appointed on 01 June 2018. He is currently based at the respondent’s Lindley Primary School in the Free State Province. The dispute follows the respondent’s failure to deal with a grievance lodged on 18 February 2020 pertaining his long service bonus claim.

6. The applicant lodged a dispute with the Council on 25 March 2020. A certificate of non-resolution of the dispute was issued on 18 May 2020 by the Council. The applicant applied for arbitration on 23 June 2020, which could only take place on 11 September 2020.

PRELIMINARY ISSUE

Submissions by parties
7. The respondent raised a point in limine in which it argued that the applicant became aware of its dispute in 2016 and only lodged the dispute in 2020. It submitted that the applicant should apply for condonation under these circumstances.

8. The applicant referred to various case law and contended that the dispute was not referred late. It stated in its replication that the respondent has always given the impression that it would pay the benefit to the applicant and even confirmed this in writing on 30 September 2019. The applicant submitted that more follow-up letters were written to the respondent afterwards which led it to the point of lodging an internal grievance with the respondent on 18 February 2020.

9. The applicant submitted that the respondent did not answer its grievance which caused it to lodge a dispute with this Council on 25 March 2020, which fell within the prescribed 90 days.

Analysis of Submissions

10. The applicant has made the allegation in its heads of arguments that the respondent wrote an email to it on 30 September 2019 in which the respondent committed to make the payment to the applicant. Even though the respondent has doubts about the validity of the email communication, this email substantiates the applicant’s assertion that a dispute was never supposed to emerge based on the nature of their engagements.

11. As a result, I do find that the dispute was referred in time after the grievance was lodged in February 2020. The referral of 25 March 2020 was not late but well within the prescribed 90 days period.

Ruling

12. The Council has jurisdiction to arbitrate this matter.

MAIN DISPUTE
SURVEY OF EVIDENCE AND ARGUMENT

13. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.

Documentary Evidence

14. The parties agreed to use the applicant’s bundle of evidence as documentary evidence for purposes of this arbitration.

Applicant’s Heads of Arguments

15. As stated earlier, the parties presented their respective cases in the virtual arbitration hearing. They further agreed to submit heads of arguments.

16. The applicant’s representative submitted that the applicant was appointed by the respondent on 01 January 1996. She stated that even though the applicant resigned 20 years later on 30 April 2016, the applicant was reappointed again by the respondent on 01 June 2018. She stated that the applicant is currently based at the respondent’s Lindley Primary School in the Free State Province.

17. The representative submitted that the applicant started in 1996 as a temporary teacher and that his contract was renewed on two occasions on 01 January 1997 and 01 April 1997. She submitted that the applicant never had a break in service and that he worked continuously until 30 April 2016. The representative submitted that the applicant was unaware of his long service bonus until one of the officials of the respondent informed him that he qualified for the long service bonus in 2016.

18. The representative submitted that in response to the call of the official which also advised the applicant to write a letter to the respondent, the applicant wrote a letter to the respondent on 18 September 2019 . She stated that the letter was processed to the relevant persons which led to the email of 30 September 2019 in which he was promised that the bonus will be paid to him.

19. The representative submitted that the respondent never paid the money as promised and that the union wrote several emails to the respondent without any success. She submitted that this is what led to the lodging of the grievance and the lodging of the dispute at the Council. With reference to various case law and authorities, the applicant submitted that the respondent committed an act of unfair labour practice: benefits and that the respondent must be ordered to pay the long service bonus to it in the amount of R8 882.00.

Respondent’s Answering Affidavit

20. The respondent’s representative submitted that the respondent agrees with the appointment and contract renewal dates of the applicant but that those renewals made the applicant to fall short of the continuous 20 years’ service as required by the Provisions on Long Service Recognition in the Public Service of 01 April 2015 (the Public Service Policy).

21. The respondent submitted that the applicant was only permanently employed on 01 April 1997 which caused him to fall short with 1 year on 30 April 2016. He stated that the applicant had 19 years’ service on 30 April 2016 and not 20 years. The representative submitted that the email of the respondent which the applicant relies on is not corroborated and that I should dismiss the applicant’s case.

Applicant’s Replication

22. The applicant’s representative submitted that the respondent’s arguments are fundamentally flawed in that the applicant’s services were never interrupted other than renewals which has taken place. The representative submitted that the applicant qualified for the bonus in accordance with Chapter E of the Personnel Administrative Measures (PAM) document.

23. The representative contended that the PAM document and Public Service Policy does not distinguish between permanent and temporary employees. She stated that the mere fact that the applicant was continuously in service of the respondent means that he indeed meets the criteria of 20 years’ continuous service. The representative submitted that the unfairness is clear and that I should find in favour of the applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. Both parties are in agreement that the long service bonus is a benefit for purposes of this dispute. The applicant contends that he qualifies for the bonus because he reached the required number of 20 years before his resignation on 30 April 2016. The respondent is of the view that the applicant only had 19 years of service on 30 April 2016, which disqualifies him from claiming the benefit because of past renewals of his temporary contracts. I shall now turn to the policies of the respondent for guidance on this contested issue.
25. The state’s Public Service Policy provides the following:

(4) LONG SERVICE AWARD
4.3 An employee who has rendered 20 years of continuous service is eligible to-
4.3.1 A certificate and
4.3.2 A cash amount of R8 882.00

26. It is clear from this policy that there is only one requirement which the applicant, as an employee of the state, had to meet in order to qualify for the long service bonus. The requirement is that he should have had 20 years’ service at the time when he claims the benefit. There are no further additional requirements in relation to temporary or permanent employee statuses, etc.

27. The respondent’s PAM document provides the following:

E2. MEASURES PRESCRIBED BY LEGISLATION NOT ADMINISTERED BY THE MINISTER OF BASIC EDUCATION AND SERVICE BENEFITS WHICH APPLY TO ALL EMPLOYEES OF THE STATE

E.2.3.4 Recognition of long service (PSCBC Resolution 1 of 2012 and Determination on the long service recognition in the public service, issued by the Minister of Public Service and Administration)

28. The respondent’s PAM document also supplements the state’s Public Service Policy. It does not create additional requirements which the applicant had to meet before being eligible to qualify for the benefit. No evidence was led by the respondent to show that employees who also had temporary contracts in beginning did not qualify for long service bonusses.

29. The evidence is clear that the applicant continuously rendered his services to the respondent without any breaks in between. The only perceived breaks were those on paper in that the applicant’s contract were renewed of which he resumed his duties the following day without any interruptions. Those administrative renewals do not signify a break in service or that the applicant did not have continuity in his service of 20 years between 1996 and 2016.

30. I agree with the respondent’s officials who conceded in email communications that the payment of the benefit was due to the applicant and that the payment should have been made to him.

Did the respondent commit an act of unfair labour practice relating to a promotion?

31. Section 186(2)(a) of the LRA stipulates the following:
186 Meaning of dismissal and unfair labour practice
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

32. The respondent’s refusal to pay the benefit to the applicant amounts to nothing but an act of unfair labour practice.

RELIEF

33. The applicant requested that the amount of R8 882.00 as stipulated in the state’s Public Service Policy must be paid to him as a form of relief. I shall now turn to the law for further guidance.

34. Section 193(4) of the LRA provides the following:

193 Remedies for unfair dismissal and unfair labour practice
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable., which may include ordering reinstatement, re-employment or compensation.

35. The relief sought by the applicant is legitimate within the meaning of section 193 of the LRA. I see no reason why the relief sought by the applicant should not be awarded. I shall as a result order that the benefit (long service bonus) of R8 882.00 be paid to the applicant by the respondent.

36. In the premise, I make the following award:

AWARD

37. The respondent, Free State Department of Education, has committed an act of unfair labour practice relating to benefits (long service bonus) to the applicant, Mr Katiso J Chabeli.

38. The respondent is ordered to pay the applicant an amount of R8 882.00 for his 20 years long service bonus.

39. The amount in paragraph 38 must be paid to the applicant by the respondent by no later than 30 November 2020.

This is done and dated on 11 November 2020 at Kimberley.

David Pietersen
ELRC Commissioner
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