ELRC239-20/21EC
ELRC239-20/21EC
Award Date:
26 November 2020
Case Number: ELRC239-20/21EC
Province: Eastern Cape
Applicant: SAOU OBO P. PETERSEN & 2 OTHERS
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 26 November 2020
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC239-20/21EC
Date of Hearing: 16 November 2020
Date of Arguments: 16 November 2020
Date of Award: 26 November 2020
In the Arbitration Hearing between
SAOU OBO P. PETERSEN & 2 OTHERS APPLICANTS
and
EASTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT
Applicants’ representative:
Ms Venita van Wyk
Tel: 060 971 4062
Fax:
E-Mail Address: venitavw@saou.co.za
Respondent’s representative: Mr Euan Hector
Telephone: 072 590 2685
Fax:
E-Mail Address: Euan.Hector@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of section 138(7) of the Labour Relations Act 66 of 1995, as amended (“the LRAA”). The dispute was heard via a virtual platform (Zoom) on 16 November 2020 under the auspices of the Education Labour Relations Council (“the Council”).
2. Ms Venita van Wyk (“van Wyk”), an Official from SAOU, represented the applicants, Mr Petersen (“Petersen”), Ms Van Straaten (“van Straaten”) and Ms Smit (“Smit”). Mr Euan Hector (“Hector”), the Labour Relations Officer, represented the respondent, Eastern Cape Department of Education.
3. Parties agreed to dispense of this matter only through written heads of arguments. The applicants were to submit their heads of arguments on 16 November 2020. The respondent was to submit its heads of arguments on or before 19 November 2020. Then the applicants were to reply on 20 November 2020. I have received only the applicants’ heads of arguments.
ISSUES TO BE DECIDED
4. I am required to determine whether the respondent has subjected the applicants to an unfair labour practice related to benefits in terms of section 186(2)(a) of the LRA.
BACKGROUND
5. The applicants were employed as educators by the respondent. They have all since retired from the Department. On termination of their services, the Department did not pay them out their capped leave days and pro-rata bonuses. The applicants lodged a grievance, but their grievance was not resolved. They then referred a dispute to the Council through their trade union. The matter was conciliated on 01 October 2020. Where after, Mr Petersen was paid his outstanding monies on 13 October 2020. Thus, the other two applicants are still not paid their monies.
SUMMARY OF EVIDENCE AND ARGUMENTS
6. It is trite that the applicant bears the burden of proof in an alleged unfair labour practice dispute. It was agreed with the parties that this matter would be disposed of through written submissions and we agreed on the submissions dates for the heads of arguments. At the time of writing this award, I only had the applicants’ submissions.
The applicants’ submissions and arguments
7. Van Wyk submitted that the three applicants have retired from the Department on 31 January 2019 (Petersen), 31 January 2018 (van Straaten) and 31 December 2019 (Smit). At the time of their retirement, they had capped leave days and these benefits are still to be paid save for Petersen who was already paid. Over and above the accrued leave days, Smit is owed pro-rata bonus. She prayed that interest must be considered on these outstanding amounts,
The respondent’s submissions and arguments
8. Despite having agreed that the respondent would file its heads of arguments on or before 19 November 2020, same were not received.
ANALYSIS OF EVIDENCE AND ARGUMENTS
9. An unfair labour practice is defined in section 186(2)(a) of the LRAA as any unfair act or omission that arises between an employer and an employee involving 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. (My emphasis).
10. The applicants’ dispute turns around unpaid capped leave and pro-rata bonus. In the Labour Appeal Court judgment of Apollo Tyres (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 Musi AJA said the following at par 50:
“In my view the better approach would be to interpret the term benefit to include a right or entitlement with which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgement “benefit” in section 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion. In as far as Hospersa, GS4 Security and Scheepers postulate a different approach they are, with respect, wrong”.
11. Having considered the above authority, it cannot be argued that capped leave days and bonuses are not benefits. Hector conceded virtually that he was aware that the respondent owed van Straaten capped leave days and owed Smit capped leave days and pro-rata bonus. As per van Wyk’s submissions and the attached payslips, van Straaten had (72) capped leave days which amounted to R102 579, 99 and Smit had 21.28 capped leave days which amounted to R34 745, 26. Smit had ten months of pro-rata bonus that was not paid and that amounted to R29 561, 45.
12. There were no reasons advanced that prevented the respondent to pay the applicants their dues. In terms of the Circular issued by the Eastern Cape Department of Education Superintended-General, Mr T.S Kojana, on 18 July 2019 it stated that all employees and ex-employees’ salaries and / or benefits must be paid within 30 days of assumption of duty or exit from service. Van Straaten retired from the service on 31 January 2018 and Smit retired on 31 December 2019. Clearly, these amounts are long overdue. I cannot find any reason why I should not consider that these amounts attract interest as requested by van Wyk. I therefore find it appropriate that the prescripts of the Prescribed Rate of Interest Act 55 of 1975 are invoked at the current rate of 7.25%. thus, all the outstanding amounts are payable with interest from when the applicants retired from the respondent’s service.
AWARD
I therefore make the following award:
13. The applicants succeeded in discharging their burden of proof. Therefore, I find that the respondent subjected the applicants to an unfair labour practice by not paying the applicants their benefits.
14. The respondent, the Eastern Cape Department of Education, is ordered to pay Ms A. van Straaten her outstanding capped leave days amounting to R102 579, 99 plus the interest of 7.25% calculated from 01 March 2018 (being 30 days after her retirement) on or before 31 January 2021.
15. The respondent, the Eastern Cape Department of Education, is ordered to pay Ms A. Smit her outstanding capped leave days amounting to R34 745, 26 and her pro-rata bonus amounting to R29 561, 45. The total amount owed to Smit is R64 306, 71 plus the interest of 7.25% calculated from 01 February 2020 (being 30 days after her retirement) on or before 31 January 2020.
Arbitrator: Themba Manganyi
26 November 2020
Province: Eastern Cape
Applicant: SAOU OBO P. PETERSEN & 2 OTHERS
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtually
Award Date: 26 November 2020
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC239-20/21EC
Date of Hearing: 16 November 2020
Date of Arguments: 16 November 2020
Date of Award: 26 November 2020
In the Arbitration Hearing between
SAOU OBO P. PETERSEN & 2 OTHERS APPLICANTS
and
EASTERN CAPE DEPARTMENT OF EDUCATION RESPONDENT
Applicants’ representative:
Ms Venita van Wyk
Tel: 060 971 4062
Fax:
E-Mail Address: venitavw@saou.co.za
Respondent’s representative: Mr Euan Hector
Telephone: 072 590 2685
Fax:
E-Mail Address: Euan.Hector@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of section 138(7) of the Labour Relations Act 66 of 1995, as amended (“the LRAA”). The dispute was heard via a virtual platform (Zoom) on 16 November 2020 under the auspices of the Education Labour Relations Council (“the Council”).
2. Ms Venita van Wyk (“van Wyk”), an Official from SAOU, represented the applicants, Mr Petersen (“Petersen”), Ms Van Straaten (“van Straaten”) and Ms Smit (“Smit”). Mr Euan Hector (“Hector”), the Labour Relations Officer, represented the respondent, Eastern Cape Department of Education.
3. Parties agreed to dispense of this matter only through written heads of arguments. The applicants were to submit their heads of arguments on 16 November 2020. The respondent was to submit its heads of arguments on or before 19 November 2020. Then the applicants were to reply on 20 November 2020. I have received only the applicants’ heads of arguments.
ISSUES TO BE DECIDED
4. I am required to determine whether the respondent has subjected the applicants to an unfair labour practice related to benefits in terms of section 186(2)(a) of the LRA.
BACKGROUND
5. The applicants were employed as educators by the respondent. They have all since retired from the Department. On termination of their services, the Department did not pay them out their capped leave days and pro-rata bonuses. The applicants lodged a grievance, but their grievance was not resolved. They then referred a dispute to the Council through their trade union. The matter was conciliated on 01 October 2020. Where after, Mr Petersen was paid his outstanding monies on 13 October 2020. Thus, the other two applicants are still not paid their monies.
SUMMARY OF EVIDENCE AND ARGUMENTS
6. It is trite that the applicant bears the burden of proof in an alleged unfair labour practice dispute. It was agreed with the parties that this matter would be disposed of through written submissions and we agreed on the submissions dates for the heads of arguments. At the time of writing this award, I only had the applicants’ submissions.
The applicants’ submissions and arguments
7. Van Wyk submitted that the three applicants have retired from the Department on 31 January 2019 (Petersen), 31 January 2018 (van Straaten) and 31 December 2019 (Smit). At the time of their retirement, they had capped leave days and these benefits are still to be paid save for Petersen who was already paid. Over and above the accrued leave days, Smit is owed pro-rata bonus. She prayed that interest must be considered on these outstanding amounts,
The respondent’s submissions and arguments
8. Despite having agreed that the respondent would file its heads of arguments on or before 19 November 2020, same were not received.
ANALYSIS OF EVIDENCE AND ARGUMENTS
9. An unfair labour practice is defined in section 186(2)(a) of the LRAA as any unfair act or omission that arises between an employer and an employee involving 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. (My emphasis).
10. The applicants’ dispute turns around unpaid capped leave and pro-rata bonus. In the Labour Appeal Court judgment of Apollo Tyres (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 Musi AJA said the following at par 50:
“In my view the better approach would be to interpret the term benefit to include a right or entitlement with which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgement “benefit” in section 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion. In as far as Hospersa, GS4 Security and Scheepers postulate a different approach they are, with respect, wrong”.
11. Having considered the above authority, it cannot be argued that capped leave days and bonuses are not benefits. Hector conceded virtually that he was aware that the respondent owed van Straaten capped leave days and owed Smit capped leave days and pro-rata bonus. As per van Wyk’s submissions and the attached payslips, van Straaten had (72) capped leave days which amounted to R102 579, 99 and Smit had 21.28 capped leave days which amounted to R34 745, 26. Smit had ten months of pro-rata bonus that was not paid and that amounted to R29 561, 45.
12. There were no reasons advanced that prevented the respondent to pay the applicants their dues. In terms of the Circular issued by the Eastern Cape Department of Education Superintended-General, Mr T.S Kojana, on 18 July 2019 it stated that all employees and ex-employees’ salaries and / or benefits must be paid within 30 days of assumption of duty or exit from service. Van Straaten retired from the service on 31 January 2018 and Smit retired on 31 December 2019. Clearly, these amounts are long overdue. I cannot find any reason why I should not consider that these amounts attract interest as requested by van Wyk. I therefore find it appropriate that the prescripts of the Prescribed Rate of Interest Act 55 of 1975 are invoked at the current rate of 7.25%. thus, all the outstanding amounts are payable with interest from when the applicants retired from the respondent’s service.
AWARD
I therefore make the following award:
13. The applicants succeeded in discharging their burden of proof. Therefore, I find that the respondent subjected the applicants to an unfair labour practice by not paying the applicants their benefits.
14. The respondent, the Eastern Cape Department of Education, is ordered to pay Ms A. van Straaten her outstanding capped leave days amounting to R102 579, 99 plus the interest of 7.25% calculated from 01 March 2018 (being 30 days after her retirement) on or before 31 January 2021.
15. The respondent, the Eastern Cape Department of Education, is ordered to pay Ms A. Smit her outstanding capped leave days amounting to R34 745, 26 and her pro-rata bonus amounting to R29 561, 45. The total amount owed to Smit is R64 306, 71 plus the interest of 7.25% calculated from 01 February 2020 (being 30 days after her retirement) on or before 31 January 2020.
Arbitrator: Themba Manganyi
26 November 2020