Case Reference no: ELRC 426-20/21FS
Date of Award: 24 March 2021
In the arbitration between
SADTU OBO R J CHAKA APPLICANT
DEPARTMENT OF EDUCATION FREE STATE RESPONDENT
Applicants’ representative: Mr B Mbhele
Respondent’s representative: Mr S Moloi of the DOE FS
ARBITRATOR: Advocate L Charoux
HEARD: 25 February 2021
DELIVERED: 17 March 2021
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set down for an arbitration hearing via ZOOM on 25 February 2021. The Applicant, RJ Chaka was represented by Mr B Mbhele of SADTU. The Respondent, Department of Education: Free State was represented by Mr S Moloi of the DOE FS.
2. The Applicant referred an alleged unfair labour practice dispute to the ELRC on 5 November 2020. The Applicant summarized the dispute as follows: “Our member has been on suspension for more than 3 months without a disciplinary hearing”.
3. The matter was conciliated on 2 December 2020 via ZOOM. Subsequent to the conciliation meeting the Applicant’s suspension was uplifted on 9 December 2020.
4. The outstanding issue before me is whether the Applicant is entitled to be paid his hostel supervision allowance which was withdrawn subsequent to his suspension.
5. The Applicant gave evidence and no further witnesses testified at the arbitration hearing. The Applicant’s evidence confirmed the common cause facts summarized below.
6. Both parties presented written heads of argument on 3 March 2021.
ISSUES TO BE DECIDED
7. Did the Respondent commit an Unfair Labour Practice against the Applicant by failing to pay him his hostel allowance?
COMMON CAUSE FACTS
8. The Applicant was suspended with pay on 4 October 2019. The Applicant’s suspension letter informed him that he was suspended pending investigations into his alleged misconduct related to financial mismanagement.
9. At the time of his suspension, the Applicant was employed as a principal at the Mampoi High School. His salary scale was R609 772.00 per year. As part of his duties he was responsible for the hostel attached to the Mampoi High School. He received a hostel supervision allowance of R7257.10 per month.
10. The Applicant was advised on 18 February 2020 that his precautionary suspension was uplifted and that he would be transferred to TMED District Office in terms of Schedule 2, item 6 (2) of the EEA 76 of 1998, pending the finalization of the investigation into his alleged misconduct.
11. The Applicant was advised on 9 December 2020 that his suspension was uplifted and that he had to report for duty at Mampoi High School with immediate effect.
12. The Applicant has not been paid his hostel allowance since 1 January 2020.
13. The upliftment of the Applicant’s suspension did not resolve the unfair labour practice dispute because the Respondent failed to pay the Applicant his hostel allowance during his suspension and after his reinstatement as principal at Mampoi High School.
14. The outstanding dispute regarding the hostel allowance was discussed at the conciliation meeting and detailed in the arbitration referral.
15. The Applicant is seeking retrospective payment of his hostel allowance from 1 January 2020.
16. The Applicant was not performing his hostel supervision function during his suspension and is therefore not entitled to hostel allowance.
17. Somebody else attended to the Applicant’s hostel duties whilst he was on suspension.
18. The Applicant did not refer a dispute relating to hostel allowance to the ELRC.
ANALYSIS OF EVIDENCE AND ARGUMENTS
19. After listening to the evidence presented by the Applicant and having regard to the arguments presented by the parties I concluded that the Applicant is entitled to be paid his hostel allowance effective from 1 January 2020 for the following reasons:
19.1 The Applicant’s claim for hostel allowance is part of the dispute that he referred to the ELRC, namely a dispute relating to his unfair suspension.
19.2 The Applicant was suspended on full pay and therefore entitled to be paid his full remuneration, which includes his hostel allowance. In this regard I refer to the LAC matter of Apollo Tyres SA (Pty) Ltd v CCMA & Others (2013) 34 ILJ 1120 (LAC).
19.3 The Applicant suffered financial loss because he was not paid his hostel allowance subsequent to his suspension. The Applicant was not found guilty of any wrongdoing and it is in my view unfair that the Respondent’s hostel allowance was withdrawn. The allowance was part of his remuneration package at the time of his suspension. The Respondent also did not provide any explanation why the Applicant’s hostel allowance was not reinstated subsequent to his return to Mampoi High School.
20. The Respondent, Department of Education: Free State is ordered to pay the Applicant, RJ Chaka the amount of R105 227.95 (R7257.10 X 14.5 months) on or before 15 April 2021.
SIGNED AND DATED ON 24 MARCH 2021
ADVOCATE L CHAROUX