Case Number: ELRC880-19/20EC
Province: Eastern Cape
Applicant: SAOU obo Robinson, M
Respondent: HOD, Department of Education, Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 17 November 2020
Arbitrator: M HUBER
In the arbitration between
SAOU obo Robinson, M
HOD, Department of Education, Eastern Cape RESPONDENT
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 33A(4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution: Dispute Resolution Procedures, Part C.
2. The arbitration hearing was held via MS Teams and Zoom respectively on 3rd and 17th November 2020. The Applicant, Mrs. Robinson, was represented by Mrs. V van Wyk from SAOU and the Respondent was represented by Mr. S Xhalasile from Labour Relations.
The issue to be decided
3. The dispute, in terms of clause 69 of the ELRC Constitution – “Enforcement of Collective Agreements and of BCEA Provisions”, relates to the alleged failure by the Respondent to pay the Applicant’s IQMS salary adjustment of 1% in the year 2015/2016, with the result that the Applicant’s payments for the years 2017 through to her resignation in 2019 were incorrectly calculated on the lower salary level.
4. The issue to be decided is whether or not the Applicant was entitled to a 1% IQMS notch increase for the period 2015/2016, and if she was, whether the Respondent complied with the applicable provisions of Collective Agreement 8 of 2003 in respect of payment of this notch increase.
5. In terms of Clause 69.1 read together with Clause 69.2 of the ELRC Constitution, the General Secretary may enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of section 33 and section 33A of the Act.
6. In terms of clause 69.5 and 69.6 of the ELRC Constitution, 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. Further to that a panellist conducting an arbitration in terms of Clause 69 [ELRC Constitution] 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.
7. In light of the above I am required to determine whether or not the Applicant should have been paid, and was not paid, an IQMS adjustment increase of 1% in the year 2015/2016. In the event that I find that the Applicant should have been paid this IQMS salary adjustment, I will be required to order payment of all outstanding money and/or any other appropriate relief in terms of clause 69 of the ELRC Constitution.
8. The parties agreed that it is common cause that the Applicant, Mrs. Melissa Robinson, Persal number 54258499, was entitled to an IQMS salary adjustment of 1% for the 2015/2016 period, and it is common cause that this adjustment was not allocated to or paid to her. Her salary was therefore not increased for this period.
9. It is common cause that the full amount that should have been paid to the Applicant for this 1% adjustment is R1919.25 (ONE THOUSAND NINE HUNDRED AND NINETEEN RAND AND TWENTY FIVE CENTS) and that this has not been paid to her to date. It is further common cause that the Applicant’s subsequent salary payments and other payments linked to her salary (for example her annual bonuses) were underpaid due to the failure of the Respondent to increase the Applicant’s salary with the 1% IQMS adjustment in the 2015/2016 period.
10. The Respondent called Mrs. Moira Coetzee as an expert witness to provide calculations on this accrued underpayment. Mrs Coetzee is a Senior Education Specialist in the Human Resources Administration Department, and Mrs. Coetzee testified that the amount that was due to the Applicant (the shortfall) is an amount of R9803.25 (NINE THOUSAND EIGHT HUNDRED AND THREE RAND AND TWENTY FIVE CENTS), and that statutory deductions would need to be made from this amount. She pointed out that this amount excludes the shortfall / backpay that would be due on bonuses that would have been underpaid due to the non-allocation of the 1% IQMS adjustment in the 2015/2016 period to the Applicant’s salary.
11. The parties accepted Mrs Coetzee’s calculation and agreed that it is common cause that the Applicant is therefore also due an amount of R9803.25 (NINE THOUSAND EIGHT HUNDRED AND THREE RAND AND TWENTY FIVE CENTS), less statutory deductions, for the shortfall occasioned by the failure of the Respondent to increase the Applicant’s salary with the 1% IQMS adjustment in the 2015/2016 period.
12. It is therefore common cause and not disputed that the Respondent was required to increase the Applicant’s salary with an IQMS adjustment of 1% in the 2015/2015 period and did not make this salary adjustment and payment to her for this period. It is common cause that this payment, due and payable to the Applicant, is an amount of R1919.25 (ONE THOUSAND NINE HUNDRED AND NINETEEN RAND AND TWENTY FIVE CENTS), which must be paid to the Applicant, less statutory deductions. It is also common cause that the Applicant is due and payable for the shortfall in her salary payments for the period after 2015/2016, when her salary did not reflect the 1% IQMS adjustment, and that this amount is as reflected in clause 11, which is due and payable, less statutory deductions.
13. The parties agreed also that the Respondent’s Finance Department should calculate the shortfall on the Applicant’s bonus payments for the 2015/2016 period and thereafter, up until the date of her resignation in 2019, and that this amount should also be paid to the applicant, together with the payments already calculated (R1919.25 plus R9803.25, less deduction).
14. The parties agreed that all payments will be made directly into the Applicant’s bank account, less statutory deductions, on or before 31 January 2021.
15. The Applicant, Melissa Robinson (persal no 54258499) is entitled to an IQMS salary adjustment of 1% for the Period 1 July 2015 - 31 July 2016 totalling R1919.25, as well as the shortfall in subsequent salary payments for the 2017/2018 and 2018/2019 periods totalling R9803.25, less statutory deductions.
16. The Applicant is further entitled to payment of the shortfall on her 2015/2016, 2016/2017, 2017/2018 and 2018/2019 (where applicable) bonus payments, which must still be calculated by the Finance Department of the Respondent. This payment should be paid, less statutory deductions. Should the parties fail to agree on this payment, it can be referred back to the Council for determination.
In the premises, I make the following order:
17. The Respondent, the HOD, Department of Education: Eastern Cape is ordered to pay the Applicant, Mrs. Melissa Robinson (persal no 54258499), via electronic payment into her banking account – Standard Bank, Current Account number 080061516, an amount of R11 722.50 (ELEVEN THOUSAND SEVEN HUNDRED AND TWENTY TWO RAND AND FIFTY CENTS) less statutory deductions, on or before 31 January 2021.
18. The Respondent, the HOD, Department of Education: Eastern Cape is ordered to pay the Applicant, Mrs. Melissa Robinson (persal no 54258499), via electronic payment into her banking account – Standard Bank, Current Account number 080061516, the shortfall due to her for her 2015/2016, 2016/2017, 2017/2018 and 2018/2019 bonus payments, less statutory deductions, which amount must be calculated by the Finance Department of the Respondent. This amount must be paid by the Respondent on or before 31 January 2021.
SIGNED AT MAKHANDA ON THIS 17th DAY OF NOVEMBER 2020.