Case No. ELRC477-20/21 EC
In the matter between
NAPTOSA obo Crystan Wilson Applicant
Department of Education: Eastern Cape Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 9 MARCH 2021
DATE OF AWARD: 31 MARCH 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to the provision of benefits
SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to benefits when not paying the Applicant back-pay for the period commencing when she started to teach to when she was appointed.
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down as an arbitration to be heard before me over zoom on the 9th of March 2021. During these proceedings, the Applicant, Ms Crystan Wilson was represented by Ms Andrea Witbooi of NAPTOSA while the Respondent, Department of Education: Eastern Cape was represented by Mr Euan Hector.
2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.
3. The parties provided a pre-arbitration minute which addressed all the necessary issues. The representatives further filed Heads of Arguments on the 13th of March 2021.
THE ISSUE IN DISPUTE
4 I am required to determine whether an unfair labour practice was committed by the Respondent relating to benefits as it relates to the failure of the Respondent to pay the Applicant back-pay for the period she commenced teaching and when she was appointed.
THE BACKGROUND TO THE DISPUTE
5. In these proceedings the Applicant referred an unfair labour practice relating to an unpaid salary for months.
6. The Applicant claimed that after commencing its duties on the 11th of January 2020, its appointment was only ratified much later in the year as such it only received its first salary late in the year.
7. The Applicant further claimed that to date, the arrear salary from date of commencement was not paid.
8. The Respondent raised one critical defence in opposition that being of when the Applicant was authorized by itself as a duly appointed educator to commence its duties. The Respondent is of the opinion that the Applicant was only a true member of its duly recognized employment on the date of issuing the letter of appointment and not earlier.
9. The Respondent argued that it cannot be held liable for the Applicant having commenced duties before receiving the letter of appointment.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant (Ms C Wilson) was called to testify under oath and further witness, one Mr K Jacobs, was called too. A summary of their testimony is outlined herein below.
11. It was the testimony of Ms C Wilson that as from the 13th of January 2020 she executed her duties as an educator when she filled the substantive vacant post at Joubertina Junior School.
12. Ms C Wilson further testified that upon her commencement she did so with another party, one Ms Koleka Qweta, and both were authorised to commence duties by the school principal and the circuit manager.
13. Ms Wilson also testified that what raised issues was that Ms Koleka Qweta allegedly received her departmental letter of appointment during April 2020 and was allegedly received backpay from January 2020. The latter was not substantiated by documentary or any form of confirmatory testimony from Ms Qweta.
14. Ms Wilson testified that subsequent receipt of her departmental letter of appointment (during August 2020), she was not afforded backpay.
15. The second witness for the Applicant, one Mr K Jacobs, testified to confirm that Ms Wilson had in fact commenced as an educator on the 13th of January 2020 and that he directed her, together with another, to occupy the substantive vacant posts. Mr Jacobs further advised that after directing the above educators to commence work, he then spoke to the circuit manager to ratify the above two educator’s appointment.
16. Mr Hector (the representative for the Respondent) challenged the above versions and crossed examined both witnesses by enquiring who at the department gave the direct instruction for Ms Wilson to commence her duties.
17. Further to the above testimonies, the parties relied on the evidence bundle marked ‘A’ which enclosed various documents.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
18. The parties agreed to submit written arguments to substantiate their respective case. I shall address said arguments and the averments made during the arbitration herein under.
19. I considered same and the arguments made during the arbitration proceedings.
20. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
21. More important in this matter was the issue of evidence to support the notion that the Applicant was indeed employed by the Respondent from the date of executing her services, herein we refer to the Employment of Educators Act, 76 of 1998 wherein the specific parties granted the permission to employ educators are enlisted in section 3 of the aforementioned Act to which a principal of a school is not included.
22. Although the Applicant alluded to differentiation between herself and Ms Koleka Qwaleta, unfortunately this notion was not explored sufficiently with enough evidence to establish inconsistency or discrimination to which I am not called to make a decision about in this matter.
23. In the absence of any proof of inconsistencies between the educators or any proof that this was a common practice by the Department of Education, it would be difficult to support the assertion by Applicant.
24. The Applicant in her own testimony during cross examination confirmed that the only time she was furnished with authority to execute her duties was in August 2020 and not earlier.
25. This matter traverses several legal concepts in its application, one being the authority to act and who the true authority to was in so far as her appointment. It is common knowledge that the department in this matter, which is the true authority only gave the letter to commence duties when it issued the letter of appointment.
26. From the arguments and the evidence, it is evident that the Department only ratified her appointment in August 2020 and not earlier. Had the Applicant provided evidence or proof of the communication from the Respondent ratifying her appointment earlier then we would be dealing with a different case.
27. In cases of unfair labour practice, the onus of proof lies on the Applicant. The Applicant needs to prove on a balance of probabilities that the employer committed an unfair labour practice by not paying her backpay for the time she was allegedly contracted to work. In this case the Applicant has failed to prove that she was duly appointed for the time in question.
28. In the premises I make the following award.
29. The Applicant has failed to establish that an unfair labour practice was perpetrated against her by the Respondent relating to benefits.
30. The Applicant is not entitled to any relief.