ELRC 451-18/19
ELRC 451-18/19
Award Date:
9 February 2021
Case Number: ELRC 451-18/19
Province: Eastern Cape
Applicant: NAPTOSA obo Marianna Catherine Kriel
Respondent: Department of Higher Education and Training (DHET) Buffalo City TVET College
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual
Award Date: 9 February 2021
Arbitrator: P I DHLODHLO
Case Number: ELRC 451-18/19
Commissioner: P I DHLODHLO
Date of Award: 09 February 2021
NAPTOSA obo Marianna Catherine Kriel
(Applicant)
And
Department of Higher Education and Training (DHET) Buffalo City TVET College
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The dispute between the applicant, Marianna Catherine Kriel and the respondent, Department of Higher Education Education and Training (DHET) (Buffalo City TVET College) was scheduled for arbitration between January 2019 and January 2021 at the respondent’s Boardroom in East London and three virtual hearings.
2. The applicant, Mrs Marianna Kriel was initially presented by Mr K Dalasile from NAPTOSA and later Advocate G Saayman also from NAPTOSA who took over.
3. Mr M Dhlamini and Mr Gidigidi, both respondent’s employees appeared on behalf of the Department of Higher Education and Training.
4. These proceedings were finalised on 19 January 2021.
5. Parties agreed to file closing arguments on 26 January 2021.
ISSUE TO BE DECIDED
6. I am required to establish whether or not the applicant has a claim of amounts owing in terms of Clause 69 of ELRC Constitution read with section 33A of the Labour Relations Act (LRA) as amended, and if so, to determine accordingly.
BACKGROUND
7. It is the applicant’s submission that she is currently employed by the DHET (Buffalo City TVET College).
8. She was promoted in 2009 to an Educational Specialist and was supposed to receive 6% or notches, but she only received 3%.
9. She is claiming the shortfall of R308 656 .27 salary including bonuses.
10. The respondent did not adjust her salary accordingly.
11. On the other hand, the respondent disputed the applicant’s claim, reiterating that the applicant was paid accordingly.
12. Between 2019 and 2020 the parties sought an opportunity to engage in a bid of resolving the dispute. However, no positive outcome was reached.
SURVEY OF EVIDENCE
Applicant’s version
13. Mrs Marianna Kriel testified that she is currently in the respondent’s employment.
14. She stated that she was promoted at the end of 2008 and her salary scale was R182 484.00.
15. The promotion letter received in June 2009 indicated the increase was R188 484.00, but the applicant received R188 028.00.
16. Her 1% and general yearly increase of July 2009 was only paid in November 2019 1989 until his resignation in 2017.
17. In January 2010 she received 1% for 2009, which adjusted her salary notch to R209 844.00.
18. She presented proof (page 26 of the Bundle) that her salary was R182 484.00 between July and December 2008. Her appointment letter (page 8) stated that she was supposed to be remunerated R188 484.00, but only received R188 028.00. Further, the respondent’s system did not update or capture her promotion.
19. Her salary only adjusted in June 2010 (eighteen months after promotion date).The applicant reiterated that the amount owed was R199 432.78.
20. During cross examination, she maintained that she was paid according to Bundle F columns and the cost of living in 2008 was not included. The payslip and the system contradict what ought to have been paid to her.
21. The system (page 8) indicated that her salary at R189 000.00, she was paid R188 484.00.
22. The applicant was adamant that her promotion salary was paid later and never included pay progression as expected.
Respondent’s version
23. Ms Linda du Plessis testified that she is the respondent’s Assistant Director: HR and has 21 years HR experience.
24. She stated that both respondent and applicant attempted to resolve the dispute in vain.
25. Regarding the applicant’s promotion salary, she stated that at that time the applicant’s salary was beyond the starting salary notch of an HOD. The applicant’s salary could only be adjusted with three notches.
26. Du Plessis presented in Bundle G page 5 as proof that the applicant’s salary was adjusted accordingly and paid on 25 May (not a normal pay day)
27. During cross-examination, the witness conceded the persal printout discrepancies against what the applicant received (pages 63 to 65)
28. She further conceded that the promotion was not in the system.
29. The information was captured and sent to the District office. Du Plessis could not comment on the persal report, stating that she was not the author of the said document. She was adamant that the applicant’s payslip supersedes Persal print out.
ANALYSIS OF EVIDENCE
30. It is the applicant’s contention that she has been underpaid and that the system did not capture her promotion and annual increase accordingly.
31. The respondent‘s witness were adamant that the applicant was paid accordingly.
32. The respondent could not comment on the discrepancy between what ought to have been paid to the applicant against what the applicant received.
33. Both parties in closing arguments agreed that there was a shortfall in payment, but did not agree on the actual amount owed.
34. The respondent on the other hand conceded that there was a shortfall in back pay but failed to submit its calculations accordingly.
35. Having considered the applicant’s submissions, it is my view that the applicant is being owed a total back pay of R308 656 .27 salary that including bonuses.
36. Lastly, with regard to the interest claimed over above the total back pay, the remedies of the BCEA do not cater for interest of the overdue back pay amount.
37. I deem it appropriate to award as follows:
AWARD
38. The respondent is ordered to pay the applicant, Marianna Catherine Kriel an amount of R308 656.27 (three hundred and eight thousand and six hundred and fifty six rand and twenty seven cents) that reflects a total back pay of salary adjustment from 2009 up to 2021.
39. The above mentioned amount must be paid by no later than 31 March 2021.
Signature:
Commissioner: P Dhlodhlo
Sector:
Province: Eastern Cape
Applicant: NAPTOSA obo Marianna Catherine Kriel
Respondent: Department of Higher Education and Training (DHET) Buffalo City TVET College
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual
Award Date: 9 February 2021
Arbitrator: P I DHLODHLO
Case Number: ELRC 451-18/19
Commissioner: P I DHLODHLO
Date of Award: 09 February 2021
NAPTOSA obo Marianna Catherine Kriel
(Applicant)
And
Department of Higher Education and Training (DHET) Buffalo City TVET College
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The dispute between the applicant, Marianna Catherine Kriel and the respondent, Department of Higher Education Education and Training (DHET) (Buffalo City TVET College) was scheduled for arbitration between January 2019 and January 2021 at the respondent’s Boardroom in East London and three virtual hearings.
2. The applicant, Mrs Marianna Kriel was initially presented by Mr K Dalasile from NAPTOSA and later Advocate G Saayman also from NAPTOSA who took over.
3. Mr M Dhlamini and Mr Gidigidi, both respondent’s employees appeared on behalf of the Department of Higher Education and Training.
4. These proceedings were finalised on 19 January 2021.
5. Parties agreed to file closing arguments on 26 January 2021.
ISSUE TO BE DECIDED
6. I am required to establish whether or not the applicant has a claim of amounts owing in terms of Clause 69 of ELRC Constitution read with section 33A of the Labour Relations Act (LRA) as amended, and if so, to determine accordingly.
BACKGROUND
7. It is the applicant’s submission that she is currently employed by the DHET (Buffalo City TVET College).
8. She was promoted in 2009 to an Educational Specialist and was supposed to receive 6% or notches, but she only received 3%.
9. She is claiming the shortfall of R308 656 .27 salary including bonuses.
10. The respondent did not adjust her salary accordingly.
11. On the other hand, the respondent disputed the applicant’s claim, reiterating that the applicant was paid accordingly.
12. Between 2019 and 2020 the parties sought an opportunity to engage in a bid of resolving the dispute. However, no positive outcome was reached.
SURVEY OF EVIDENCE
Applicant’s version
13. Mrs Marianna Kriel testified that she is currently in the respondent’s employment.
14. She stated that she was promoted at the end of 2008 and her salary scale was R182 484.00.
15. The promotion letter received in June 2009 indicated the increase was R188 484.00, but the applicant received R188 028.00.
16. Her 1% and general yearly increase of July 2009 was only paid in November 2019 1989 until his resignation in 2017.
17. In January 2010 she received 1% for 2009, which adjusted her salary notch to R209 844.00.
18. She presented proof (page 26 of the Bundle) that her salary was R182 484.00 between July and December 2008. Her appointment letter (page 8) stated that she was supposed to be remunerated R188 484.00, but only received R188 028.00. Further, the respondent’s system did not update or capture her promotion.
19. Her salary only adjusted in June 2010 (eighteen months after promotion date).The applicant reiterated that the amount owed was R199 432.78.
20. During cross examination, she maintained that she was paid according to Bundle F columns and the cost of living in 2008 was not included. The payslip and the system contradict what ought to have been paid to her.
21. The system (page 8) indicated that her salary at R189 000.00, she was paid R188 484.00.
22. The applicant was adamant that her promotion salary was paid later and never included pay progression as expected.
Respondent’s version
23. Ms Linda du Plessis testified that she is the respondent’s Assistant Director: HR and has 21 years HR experience.
24. She stated that both respondent and applicant attempted to resolve the dispute in vain.
25. Regarding the applicant’s promotion salary, she stated that at that time the applicant’s salary was beyond the starting salary notch of an HOD. The applicant’s salary could only be adjusted with three notches.
26. Du Plessis presented in Bundle G page 5 as proof that the applicant’s salary was adjusted accordingly and paid on 25 May (not a normal pay day)
27. During cross-examination, the witness conceded the persal printout discrepancies against what the applicant received (pages 63 to 65)
28. She further conceded that the promotion was not in the system.
29. The information was captured and sent to the District office. Du Plessis could not comment on the persal report, stating that she was not the author of the said document. She was adamant that the applicant’s payslip supersedes Persal print out.
ANALYSIS OF EVIDENCE
30. It is the applicant’s contention that she has been underpaid and that the system did not capture her promotion and annual increase accordingly.
31. The respondent‘s witness were adamant that the applicant was paid accordingly.
32. The respondent could not comment on the discrepancy between what ought to have been paid to the applicant against what the applicant received.
33. Both parties in closing arguments agreed that there was a shortfall in payment, but did not agree on the actual amount owed.
34. The respondent on the other hand conceded that there was a shortfall in back pay but failed to submit its calculations accordingly.
35. Having considered the applicant’s submissions, it is my view that the applicant is being owed a total back pay of R308 656 .27 salary that including bonuses.
36. Lastly, with regard to the interest claimed over above the total back pay, the remedies of the BCEA do not cater for interest of the overdue back pay amount.
37. I deem it appropriate to award as follows:
AWARD
38. The respondent is ordered to pay the applicant, Marianna Catherine Kriel an amount of R308 656.27 (three hundred and eight thousand and six hundred and fifty six rand and twenty seven cents) that reflects a total back pay of salary adjustment from 2009 up to 2021.
39. The above mentioned amount must be paid by no later than 31 March 2021.
Signature:
Commissioner: P Dhlodhlo
Sector: