Case Number: ELRC476-20/21EC
Commissioner / Panelist: Ali Ncume
Date of Award: 07 April 2021
In the ARBITRATION between
NAPTOSA EASTERN CAPE obo PENDRO HENDRICK MAARMAN
DEPARTMENT OF EDUCATION EASTERN CAPE
Union/Applicant’s representative: Andrea Witbooi
Union/Applicant’s address: 101 Circle Drive
Telephone: 041 364 0399 / 071 881 1169
Telefax: 041 362 0259
Respondent’s representative: Euan Hector
Respondent’s address: 6 Murray Street
Telephone: 049 807 2200 / 072 590 2685
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 26 March 2021 (virtually on Zoom) under the auspices of the Education Labour Relations Council (“ELRC”). The applicant, Mr Maarman (“the applicant”), despite appearing in person, was represented by Mrs Witbooi (“Witbooi”), in her capacity as a trade union representative (shop steward) from the National Professional Teachers’ Organisation of South Africa (“NAPTOSA”). The respondent was represented by Mr Hector (“Hector”), in his capacity as a labour representative of the respondent.
2. The proceedings were manually and digitally recorded.
NARROWING DOWN OF THE ISSUES BY THE PARTIES HERETO (VOLUNTARILY)
3. During the arbitration proceedings the parties narrowed the issues in dispute significantly. Subsequent to the latter, it appeared that the remaining issue which was in dispute, despite the entire matter being one which falls within the ambit of unfair labour practice relating to the provision of benefits, was whether the ‘benefit’ (settlement of the applicant’s university fees of 2019) which was due to the applicant is and/or was still owing. In other words, according to the parties, there is no dispute that the applicant is and/or was entitled to the payment and/or settlement of his university fees at Nelson Mandela University (“NMU”). The payment and/or settlement of the applicant’s university fees is and/or was derived from a bursary which was awarded and/or granted to the applicant by the respondent. This is the ‘benefit’ which gave rise to this matter (hence it falls under the ambit of unfair labour practice).
4. According to Hector, the ‘benefit’, being the bursary, which was awarded and/or granted to the respondent, was paid to the NMU. In other words, Hector submits that the applicant’s university fees were settled in full. Witbooi disputed this. According to Witbooi, the aforementioned bursary was never paid and/or paid in full to NMU and there is still monies owed to NMU.
5. It should be noted that the parties voluntarily agreed to limit my determination in this matter. It was agreed upon by the parties that the only issue I need to determine is whether there are any outstanding monies owed to NMU by the applicant (derived from the year upon which the bursary was granted). If there are outstanding monies owed to NMU, the parties voluntarily agreed that such monies should then be paid by the respondent to the NMU (in this instance it would mean that there was an unfair labour practice committed by the respondent). Should there be no outstanding monies owed to NMU, it is common cause that the applicant’s dispute falls away in its entirety (in this instance it would mean that there was no unfair labour practice committed by the respondent). I reiterate that this notion was agreed upon by the parties hereto.
6. In addition to this, the parties also voluntarily agreed that an ‘account statement’ from NMU will suffice in establishing whether there are any outstanding monies owed to the NMU by the respondent because of his studies which ought to have been covered by the bursary. It follows that the basis of this matter has automatic consequences depending on the ‘account statement’ from NMU. Once again, I reiterate that this notion of automatic consequences was also agreed upon by the parties hereto.
ISSUE TO BE DECIDED
7. The issue concerns an alleged unfair labour practice relating to the provision of benefits. I must decide whether the respondent’s conduct and/or omission, if any, amounts to an unfair labour practice as enshrined in section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (“LRA”).
8. In determining paragraph 7 hereof, regard must be given to paragraphs 3 – 6. In other words, I am merely left to determine whether there are any monies still owing to NMU. In making this determination, as per agreement between the parties hereto, I am guided by the ‘account statement’ obtained from NMU. The aforementioned ‘account statement’ was indeed submitted.
THE ‘ACCOUNT STATEMENT’ FROM NMU
9. According to the ‘account statement’ which was received from NMU, the outstanding amount owed by the applicant to the NMU is R5401.17. I take note that this amount was initially R6001.71 and the applicant made a payment of R600.00. However, as agreed upon by the parties, in establishing the ‘outstanding benefit’, I am guided by the outstanding amount in the ‘account statement’. If the applicant seeks to recover the R600.00 he had already paid in his personal capacity, same can be recovered under a separate dispute. Monies owed fall outside the ambit of ‘unfair labour practice’.
10. As agreed upon by the parties, should there be outstanding monies owed to NMU, it follows that there was an unfair act and/or omission on the part of the respondent (unfair labour practice). There is no need for me to dissect the elements of unfair labour practice owing to the issues being voluntarily narrowed down by the parties hereto.
11. The respondent, being the Department of Education Eastern Cape, committed an unfair labour practice relating to the provision of benefits.
12. The respondent must carry out the terms and conditions of the bursary which was awarded to the applicant, Pendro Hendrick Maarman, being settling his university fees with the NMU.
13. The settlement amount, being R5401.17 at the date of arbitration, must be paid to NMU on or before 30 April 2021.
14. These outstanding fees are limited to those which form part of the year in which the respondent’s fees ought to have been covered by the bursary, being 2019.
15. It should be noted that these fees fluctuate depending on the interest thereof. Therefore, it is possible that on date of settlement the amount owed to the NMU would no longer be R5401.17. Nonetheless, irrespective of the amount which is due on date of settlement, such amount should be paid in full by the respondent on or before 30 April 2021.
DATED AND SIGNED IN PORT ELIZABETH ON 07 APRIL 2021
Part-time commissioner: ELRC