PSES 707-18/19 GP
Text
PSES 707-18/19 GP
Text
Award Date:
20 September 2019
Case Number: PSES 707-18/19 GP
Province: Gauteng
Applicant: NAPTOSA obo Wheeler J
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Ekurhuleni South District Offices, 2 Robin Close, Infinity Office Park, Meyersdal.
Award Date: 20 September 2019
Arbitrator: Mathabo Makwela
Case Number: PSES 707-18/19 GP
Commissioner: Mathabo Makwela
Date of Award: 20 September 2019
In the ARBITRATION between
NAPTOSA obo Wheeler J
(Union/Applicant)
And
Gauteng Department of Education
(First Respondent)
Union/Applicant’s representative: Mr W H Smith
Union/Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative: Mr. V Ndhlovu
Respondent’s address:
Telephone:
Telefax:
E-mail:
Details of parties and representation
1. This arbitration hearing took place on 03 September 2019 under the auspices of the Education Labour Relations Council (the ELRC). The hearing was held at Ekurhuleni South District Offices, 2 Robin Close, Infinity Office Park, Meyersdal. The parties are NAPTOSA obo Wheeler J (“the applicant”) and the Department of Education – Ekurhuleni South District (“the respondent”). The individual applicant was in attendance and was represented by Mr W H Smith, a union official from NAPTOSA. The respondent was represented by Mr Vusumuzi Ndhlovu from its Labour Relations Department. Parties submitted bundles of documents. The applicant party submitted a bundle of documents which was marked “A1” while the respondent party’s bundle of documents was marked “R”. At the commencement of the proceedings parties narrowed issues which were electronically record, and then requested that the matter be decided on papers.
Background to the dispute
2. The applicant is in the employ of the respondent as an educator since 01 January 1985.The applicant party referred an alleged unfair labour practice disputed related to benefits in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The applicant’s contention was related to the reinstatement of the capped leave.
3. The following facts were agreed to by parties as common cause issues:
3.1 The applicant resigned from her permanent position at Rewlatch primary school on 30 June 2016 and was reappointed the following day, on 01 July 2016 at Brakenhurst primary school.
3.2 There was no break-in service when the applicant was reappointed.
3.3 The applicant accumulated capped leave of 43.1 at the end of June 2016. When the applicant resigned her capped leave was not paid out. However the respondent cancelled it.
4. The respondent submitted that the applicant was not entitled to capped leave as she resigned from a permanent position and was reappointed in a fixed term position.
5. The applicant sought reinstatement of the capped leave.
Issue to be decided
6. I must decide whether the applicant has been subjected to unfair act or omission by the respondent relating to to the provision of benefits. The issue to be decided is whether the applicant is entitled to reinstatement of the capped leave credit that she had prior to resignation. Whether the respondent’s refusal to reinstate the applicant’s capped leave was fair.
Survey of parties’ evidence and arguments
7. This is a brief summary of the salient submissions and arguments of the parties as provided for in section 138 (7)(a) of the LRA.
The Applicant’s case
8. Prior to 2000 Public Servants including office-based and institution-based educators were allowed to accumulate annual leave. In 2000 this dispensation was changed. Reference is made to paragraphs 7.1, 7.2 and 7.3 of the PSCBC Resolution 7 of 2000 (“the PSCBC resolution”). The leave accrued up to 2000 became known as “capped leave” and employees retained this leave for as long as they were in service. There was no requirement that the capped leave henceforth must be taken within a specified time frame. The Resolution also introduced a new annual leave dispensation for some sectors in the Public Service, which allowed them to accumulate annual leave which must be taken within an 18 month period. Paragraph 7.1 (a) however stated that the various sectors within the Public Service were to further refine these provisions to suit their own service delivery requirements.
9. In 2001 the Education sector established its own leave dispensation in accordance with the provisions of paragraph 7 (1) (a) of the PSCBC resolution. The leave dispensation in the education sector differs in some respects from the PSCBC resolution. In terms of the Employment of Educators Act, section 4.1, the Minister of Basic Education determines the salaries and conditions of service of educators and not the Department of Public Service and Administration.
10. The ELRC Collective Agreement 7 of 2001 determined a different policy for annual leave for institution-based educators. From 2001 institution- based educators were regarded as being on annual leave during school closure periods (school holidays). Reference is made to Annexure A paragraph 2.1 of said Collective Agreement. Paragraph 2.3 of the Collective Agreement stipulated that, post 2000, there was no further accrual of annual leave for institution-based educators, as is the case with office-based educators.
11. Paragraphs 5.1 and 5.2 of the ELRC Collective Agreement set out the conditions pertaining to capped leave. Leave accrued prior to 2000, plus the days annual leave not taken during 2001 are capped and are retained by the educator. Paragraph 5.2 sets out the criteria for payment of capped leave, namely retirement, early retirement, medical retirement and death.
12. The applicant is an institution-based educator, which means that her capped leave is retained for as long as she is in service of the respondent, and as an institution-based educator she is regarded as being on annual leave during school closure periods – there is no further accumulation of annual leave. Reference is made to the Personnel Administrative Measures Chapter H 4 2 3.
13. The respondent made reference to the PSCBC resolution in paragraph 3 and 4 in its Heads of Argument, which reads as follows :
11.1 Payout of annual leave accrued before 1st July 2000: (a) Employees, who in terms of the dispensation applicable prior to 1st July 2000, have earned audited leave accruals in terms of that dispensation, shall retain the same. The employer shall pay such accrued leave on: i) death; ii) retirement; or iii) medical boarding.
14. The respondent in paragraph 5 of its Heads of Argument referred to a Circular from the Department of Public Service and Administration. The purpose of the Circular is to discourage employees from resigning and cashing in their benefits, either pension or accrued leave.
15. The respondent has drawn special attention to paragraph 4 (c) of the Circular. This paragraph consists of three sentences and no single sentence should be read in isolation. Furthermore the paragraph must be seen in terms of the context of the entire Circular, which is to discourage employees from cashing in their benefits. The first sentence refers to forfeiting accrued leave on resignation; however it does not specifically explain which leave is being referred to: the capped leave of 2000 or the accrued annual leave post 2000. However the context suggests that the Circular is referring to the accrued leave post 2000 as reference is made to accumulating leave; bearing in mind that leave accumulated post 2000 is not added to the capped leave. The second sentence states that accrued leave is forfeited in that it is not paid out on resignation. The third sentence states that benefits are determined by the date of appointment.
16. The first sentence refers to accumulating leave afresh- this applies to the new leave dispensation post 2000 and school-based educators do not have annual leave which may be accumulated. The annual leave which other public servants enjoy, must be taken within an 18 month period.
17. The essence of this circular is that on resignation, the employee’s pension benefit may be paid out and when the employee returns to service the employee starts to accumulate pension benefits afresh and secondly on resignation, the employee’s accrued leave is not paid out and that the employee starts accumulating annual leave afresh. At no stage did the applicant apply for her capped leave or pension benefits to be paid out.
18. The Respondent has in paragraph 6 of its Heads of Argument referred to the Labour Court case of Moegamat Noeg Martin v and the Western Cape of Education, et al, Case Reference Number: C223/04. The Court ruled that Martin, the applicant in this case was not entitled to the payment of the capped leave on resignation. This case does address the issue of the retention of capped leave.
19. The Personnel Administrative Measures (PAM) chapter H 4 5 1 refers to capped leave and reads as follows: “Educators shall retain all audited leave credits accrued prior to 1 July 2000.” There is no stipulation regarding when educators should take their capped leave. There is no indication given as to a time frame in which these leave credits (capped leave) should be taken.
20. The PAM, the PSCBC resolution and the ELRC Collective Agreement all state than an employee retains his/her pre 2000 accrued (capped) leave. The question is, for how long is the capped leave retained. There can only be one answer and that is the employee retains the capped leave for as long as he/she is in service.
21. Commissioner’s attention is drawn to paragraphs 10 and 12 of the applicant’s Heads of Arguments.
22. The applicant’s contention is that she should retain her capped leave as there was no break in service and hence the capped leave should not have been cancelled by the respondent. She has never applied for the accrued leave to be paid out. The dispute is about the reinstatement of the leave not the payment thereof.
23. The respondent, in its Heads of Argument, has misdirected its response and ignored the nub of the matter and misdirected its response which is reinstatement and not payment of accrued leave. The Respondent has conflated the payment of capped leave with the retention of capped leave.
24. The respondent has agreed that there was no break in service and as a consequence thereof has agreed to correct the salary notch, to granting of salary progression, to change the date of applicant’s appointment from 1 July 2016t to 01 January 1985.
25. The respondent wrongfully removed the applicant’s capped leave on reappointment.
26. The relief that the applicant seeks is that the capped leave credits of (43.75 days) accrued by her and as reflected on her salary advice of 24 June 2016 be reinstated.
The Respondent’s case
27. The applicant has averred that her capped leave days should be reinstated despite her resignation. It was common cause that the applicant had resigned from her previous permanent position in one of the schools under the jurisdiction of the Gauteng Department of Education, and assumed a new position on a fixed term contract at another school within the same department.
28. The PSCBC resolution: clause 7.3(a) states that:
“Employees, who in terms of the dispensation applicable prior to 1st July 2000, have earned audited leave accrued in terms of that dispensation, shall retain the same. The employer shall be paid accrued leave on:
(i) Death;
(ii) Retrenchment;
(iii) Medical boarding; and
(iv) Retirement.
29. The above-mentioned provision does not apply to educators who have resigned from their posts in the Department of Education as the case was in respect of the applicant. The respondent has a policy dictate which stipulates that an employee who resigns from their employment forfeit their capped leave days. Please refer to the letter of the Director-General of the Department of Public Service and Administration dated 24/08/2009: Paragraph 4(c) on page 2 hereto attached.
30. The debate in respect of whether or not employees who resigned from their permanent employment forfeit their capped leave days was settled in the Labour Court of South Africa in a matter between Moegamat Noeg Martin v and the Western Cape of Education, where the court had ruled that:
“The issue of whether the applicant is entitled to be paid the accrued leave can be resolved through ascertaining from the language used in the interpretation which the parties at the ELRC meant to express when they left out resignation as one of the events that would qualify educators for payment of their accrued leave. In ascertaining this intention, regard must be had to the language and the framework within which the resolution was concluded.”
31. Furthermore, if the parties in adopting the resolution intended to include resignation as one of the events that would qualify for the payment of the accrued leave they would have included that eventuality. The above judgment dealt with whether or not an educator who resigned from their post is entitled to a payment of accrued leave. The judgment underscores the fact that an educator who resigns from their permanent post forfeits their capped leave.
32. In conclusion, the respondent submits that the applicant had by resigning from her previous position forfeited her accrued leave days; and as such accrued leave days cannot be reinstated.
Analysis of parties’ evidence and arguments
33. The applicant referred an unfair labour practice dispute related to benefits in terms of section 186 (2) (a) of the LRA. The applicant’s contention was related to the reinstatement of her capped leave accrued as of 30 June 2016. The applicant bears the onus to prove that she is entitled to the reinstatement of her capped leave benefit.
34. It was common cause that the applicant resigned on a permanent position on 30 June 2016 and was reappointed the following day, on 01 July 2016. As a result, there was no break-in service in the employ of the applicant. It was also common cause that when the applicant resigned she had accumulated 43.75 capped leave days. The accumulated capped leave days were not paid out or claimed at the time of resignation. The respondent contended that the applicant forfeited the capped leave accrued when she resigned on 30 June 2016 and that she is not entitled to the reinstatement of the accrued capped leave.
35. The respondent in its contention that the applicant is not entitled to the reinstatement of the capped leave relied on the Circular of the Director-General of the Department of Public Service and Administration dated 24/08/2009: Paragraph 4(c) which provides that:
“Employees that resigned forfeit accrued leave and on re-appointment will qualify for leave accrual applicable to those who are less than ten years I service.”
36. The respondent also relied on the PSCBC resolution 7 of 2000 which regulates the issue of pay out of annual leave accrued before 1st July 2000. The respondent argued that resignation was not an eventuality that will entitle the applicant to reinstatement of the capped leave. The PSCBC resolution 7.3 (a) provides that:
“a) Employees, who in terms of the dispensation applicable prior to 1st July 2000, have earned audited leave accruals in terms of that dispensation, shall retain the same. The employer shall pay such accrued leave on
(i) Death;
(ii) Retirement; or
(iii) Medical boarding.
37. The respondent also submitted that debate in respect of whether or not employees who resigned from their permanent employment forfeit their capped leave days was settled in the Labour Court of South Africa in a matter between Moegamat Noeg Martin v and the Western Cape of Education, et al, where the court had ruled that:
“The issue of whether the applicant is entitled to be paid the accrued leave can be resolved through ascertaining from the language used in the interpretation which the parties at the ELRC meant to express when they left out resignation as one of the events that would qualify educators for payment of their accrued leave. In ascertaining this intention, regard must be had to the language and the framework within which the resolution was concluded.”
38. The applicant, on the other hand made reference to the ELRC Resolution 7 of 2001 which regulated new leave measures for educators and it reads that :
“Educators shalÏ retain all audited leave credits accrued prior to 1 July 2000. The number of accrued leave days prior to July 2000 shall be converted to 10 working days. Any of these days that were not granted to such an educator since 1 July 2000 shall be added to the number of leave days accrued prior to 1 July 2000. The payouts in respect of such leave credits shall be made in the event of death; retirement, including early retirement; or medical boarding.
39. The applicant also submitted that ELRC Collective Agreement set out the conditions pertaining to capped leave. Leave accrued prior to 2000, plus the days annual leave not taken during 2001 are capped and are retained by the educator. The applicant submitted also that she is an institution-based educator, which means that her capped leave is retained for as long as she is in service of the respondent and that there was no requirement that the capped leave henceforth be taken within a specified time frame.
40. The ELRC resolution and PSCBC resolution 7 of 2000 does not have an express term authorizing payment of capped leave in the event of resignation. ELRC Collective agreement does not also provide an express term as to what happened to the capped leave when an employee resign.
41. The Circular issued by the Director-General of the Department of Public Service and Administration dated 24/08/2009 has a legal status of administrative rules and as such it is binding on the employees. The Circular in paragraph 4(c) provides that employees who are resigning forfeits accrued leave and on re-appointment, will qualify for leave accrual applicable to those who are less than ten years of service.
42. The respondent argued that the above paragraph in the Circular must be seen in terms of the context of the entire Circular, which is to discourage employees from cashing in their benefits. The first sentence refers to forfeiting accrued leave on resignation; however it does not specifically explain which leave is being referred to: the capped leave of 2000 or the accrued annual leave post 2000. However the context suggests that the Circular is referring to the accrued leave post 2000 as reference is made to accumulating leave; bearing in mind that leave accumulated post 2000 is not added to the capped leave. Therefore, the applicant is entitled to the reinstatement of the capped leave.
43. In Martin v Western Cape Education Department and Another (C223/04) [2007] ZALCJHB 3 (6 December 2007) it was held that
“The enquiry to determine whether a term should be implied into a contract was described by Corbett AJA in Alfred McAlphine & Son (Pty) Ltd v TVL Provincial Administration 1974 3 SA 531 (A) at 532 as:
“…an unexpressed provision of the contract which derives from the common intention of the parties, as inferred by the Court from the express terms of the contract and the surrounding circumstances. In supplying such an implied term the Court, in truth, declares the whole contract entered into by the parties.”
44. It was further held that the intention of the parties plays a critical role in the assessment of whether to imply a term in a contract.
45. The simple grammatical interpretation of the wording accrued means accumulated, collected or gathered. Therefore, it appears to me that management in the Circular implied that all forms of accrued or accumulated leave benefits are forfeited upon resignation. In any case the applicant submitted that leave accrued up to 2000 became known as “capped leave”. Therefore, it is clear that the Circular included capped leave as one of the benefits that the employee forfeits upon resignation and re-appointment without a break -in service.
46. Accordingly, I find that the applicant is not entitled to the reinstatement of the capped leave.
47. Therefore, I find that the respondent’s refusal to reinstate the applicant’s capped leave was fair.
Relief
48. The applicant sought the reinstatement of her capped leave. She is not entitled to the relief sought.
Award
49. The applicant has not been subjected to any unfair act or omission by the respondent relating to to the provision of benefits.
50. The unfair labour practice dispute referred to in terms of section 186(2)(a) against the respondent is, accordingly, dismissed.
Signature:
Commissioner: Mathabo Makwela
Sector: Education
Province: Gauteng
Applicant: NAPTOSA obo Wheeler J
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Ekurhuleni South District Offices, 2 Robin Close, Infinity Office Park, Meyersdal.
Award Date: 20 September 2019
Arbitrator: Mathabo Makwela
Case Number: PSES 707-18/19 GP
Commissioner: Mathabo Makwela
Date of Award: 20 September 2019
In the ARBITRATION between
NAPTOSA obo Wheeler J
(Union/Applicant)
And
Gauteng Department of Education
(First Respondent)
Union/Applicant’s representative: Mr W H Smith
Union/Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative: Mr. V Ndhlovu
Respondent’s address:
Telephone:
Telefax:
E-mail:
Details of parties and representation
1. This arbitration hearing took place on 03 September 2019 under the auspices of the Education Labour Relations Council (the ELRC). The hearing was held at Ekurhuleni South District Offices, 2 Robin Close, Infinity Office Park, Meyersdal. The parties are NAPTOSA obo Wheeler J (“the applicant”) and the Department of Education – Ekurhuleni South District (“the respondent”). The individual applicant was in attendance and was represented by Mr W H Smith, a union official from NAPTOSA. The respondent was represented by Mr Vusumuzi Ndhlovu from its Labour Relations Department. Parties submitted bundles of documents. The applicant party submitted a bundle of documents which was marked “A1” while the respondent party’s bundle of documents was marked “R”. At the commencement of the proceedings parties narrowed issues which were electronically record, and then requested that the matter be decided on papers.
Background to the dispute
2. The applicant is in the employ of the respondent as an educator since 01 January 1985.The applicant party referred an alleged unfair labour practice disputed related to benefits in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The applicant’s contention was related to the reinstatement of the capped leave.
3. The following facts were agreed to by parties as common cause issues:
3.1 The applicant resigned from her permanent position at Rewlatch primary school on 30 June 2016 and was reappointed the following day, on 01 July 2016 at Brakenhurst primary school.
3.2 There was no break-in service when the applicant was reappointed.
3.3 The applicant accumulated capped leave of 43.1 at the end of June 2016. When the applicant resigned her capped leave was not paid out. However the respondent cancelled it.
4. The respondent submitted that the applicant was not entitled to capped leave as she resigned from a permanent position and was reappointed in a fixed term position.
5. The applicant sought reinstatement of the capped leave.
Issue to be decided
6. I must decide whether the applicant has been subjected to unfair act or omission by the respondent relating to to the provision of benefits. The issue to be decided is whether the applicant is entitled to reinstatement of the capped leave credit that she had prior to resignation. Whether the respondent’s refusal to reinstate the applicant’s capped leave was fair.
Survey of parties’ evidence and arguments
7. This is a brief summary of the salient submissions and arguments of the parties as provided for in section 138 (7)(a) of the LRA.
The Applicant’s case
8. Prior to 2000 Public Servants including office-based and institution-based educators were allowed to accumulate annual leave. In 2000 this dispensation was changed. Reference is made to paragraphs 7.1, 7.2 and 7.3 of the PSCBC Resolution 7 of 2000 (“the PSCBC resolution”). The leave accrued up to 2000 became known as “capped leave” and employees retained this leave for as long as they were in service. There was no requirement that the capped leave henceforth must be taken within a specified time frame. The Resolution also introduced a new annual leave dispensation for some sectors in the Public Service, which allowed them to accumulate annual leave which must be taken within an 18 month period. Paragraph 7.1 (a) however stated that the various sectors within the Public Service were to further refine these provisions to suit their own service delivery requirements.
9. In 2001 the Education sector established its own leave dispensation in accordance with the provisions of paragraph 7 (1) (a) of the PSCBC resolution. The leave dispensation in the education sector differs in some respects from the PSCBC resolution. In terms of the Employment of Educators Act, section 4.1, the Minister of Basic Education determines the salaries and conditions of service of educators and not the Department of Public Service and Administration.
10. The ELRC Collective Agreement 7 of 2001 determined a different policy for annual leave for institution-based educators. From 2001 institution- based educators were regarded as being on annual leave during school closure periods (school holidays). Reference is made to Annexure A paragraph 2.1 of said Collective Agreement. Paragraph 2.3 of the Collective Agreement stipulated that, post 2000, there was no further accrual of annual leave for institution-based educators, as is the case with office-based educators.
11. Paragraphs 5.1 and 5.2 of the ELRC Collective Agreement set out the conditions pertaining to capped leave. Leave accrued prior to 2000, plus the days annual leave not taken during 2001 are capped and are retained by the educator. Paragraph 5.2 sets out the criteria for payment of capped leave, namely retirement, early retirement, medical retirement and death.
12. The applicant is an institution-based educator, which means that her capped leave is retained for as long as she is in service of the respondent, and as an institution-based educator she is regarded as being on annual leave during school closure periods – there is no further accumulation of annual leave. Reference is made to the Personnel Administrative Measures Chapter H 4 2 3.
13. The respondent made reference to the PSCBC resolution in paragraph 3 and 4 in its Heads of Argument, which reads as follows :
11.1 Payout of annual leave accrued before 1st July 2000: (a) Employees, who in terms of the dispensation applicable prior to 1st July 2000, have earned audited leave accruals in terms of that dispensation, shall retain the same. The employer shall pay such accrued leave on: i) death; ii) retirement; or iii) medical boarding.
14. The respondent in paragraph 5 of its Heads of Argument referred to a Circular from the Department of Public Service and Administration. The purpose of the Circular is to discourage employees from resigning and cashing in their benefits, either pension or accrued leave.
15. The respondent has drawn special attention to paragraph 4 (c) of the Circular. This paragraph consists of three sentences and no single sentence should be read in isolation. Furthermore the paragraph must be seen in terms of the context of the entire Circular, which is to discourage employees from cashing in their benefits. The first sentence refers to forfeiting accrued leave on resignation; however it does not specifically explain which leave is being referred to: the capped leave of 2000 or the accrued annual leave post 2000. However the context suggests that the Circular is referring to the accrued leave post 2000 as reference is made to accumulating leave; bearing in mind that leave accumulated post 2000 is not added to the capped leave. The second sentence states that accrued leave is forfeited in that it is not paid out on resignation. The third sentence states that benefits are determined by the date of appointment.
16. The first sentence refers to accumulating leave afresh- this applies to the new leave dispensation post 2000 and school-based educators do not have annual leave which may be accumulated. The annual leave which other public servants enjoy, must be taken within an 18 month period.
17. The essence of this circular is that on resignation, the employee’s pension benefit may be paid out and when the employee returns to service the employee starts to accumulate pension benefits afresh and secondly on resignation, the employee’s accrued leave is not paid out and that the employee starts accumulating annual leave afresh. At no stage did the applicant apply for her capped leave or pension benefits to be paid out.
18. The Respondent has in paragraph 6 of its Heads of Argument referred to the Labour Court case of Moegamat Noeg Martin v and the Western Cape of Education, et al, Case Reference Number: C223/04. The Court ruled that Martin, the applicant in this case was not entitled to the payment of the capped leave on resignation. This case does address the issue of the retention of capped leave.
19. The Personnel Administrative Measures (PAM) chapter H 4 5 1 refers to capped leave and reads as follows: “Educators shall retain all audited leave credits accrued prior to 1 July 2000.” There is no stipulation regarding when educators should take their capped leave. There is no indication given as to a time frame in which these leave credits (capped leave) should be taken.
20. The PAM, the PSCBC resolution and the ELRC Collective Agreement all state than an employee retains his/her pre 2000 accrued (capped) leave. The question is, for how long is the capped leave retained. There can only be one answer and that is the employee retains the capped leave for as long as he/she is in service.
21. Commissioner’s attention is drawn to paragraphs 10 and 12 of the applicant’s Heads of Arguments.
22. The applicant’s contention is that she should retain her capped leave as there was no break in service and hence the capped leave should not have been cancelled by the respondent. She has never applied for the accrued leave to be paid out. The dispute is about the reinstatement of the leave not the payment thereof.
23. The respondent, in its Heads of Argument, has misdirected its response and ignored the nub of the matter and misdirected its response which is reinstatement and not payment of accrued leave. The Respondent has conflated the payment of capped leave with the retention of capped leave.
24. The respondent has agreed that there was no break in service and as a consequence thereof has agreed to correct the salary notch, to granting of salary progression, to change the date of applicant’s appointment from 1 July 2016t to 01 January 1985.
25. The respondent wrongfully removed the applicant’s capped leave on reappointment.
26. The relief that the applicant seeks is that the capped leave credits of (43.75 days) accrued by her and as reflected on her salary advice of 24 June 2016 be reinstated.
The Respondent’s case
27. The applicant has averred that her capped leave days should be reinstated despite her resignation. It was common cause that the applicant had resigned from her previous permanent position in one of the schools under the jurisdiction of the Gauteng Department of Education, and assumed a new position on a fixed term contract at another school within the same department.
28. The PSCBC resolution: clause 7.3(a) states that:
“Employees, who in terms of the dispensation applicable prior to 1st July 2000, have earned audited leave accrued in terms of that dispensation, shall retain the same. The employer shall be paid accrued leave on:
(i) Death;
(ii) Retrenchment;
(iii) Medical boarding; and
(iv) Retirement.
29. The above-mentioned provision does not apply to educators who have resigned from their posts in the Department of Education as the case was in respect of the applicant. The respondent has a policy dictate which stipulates that an employee who resigns from their employment forfeit their capped leave days. Please refer to the letter of the Director-General of the Department of Public Service and Administration dated 24/08/2009: Paragraph 4(c) on page 2 hereto attached.
30. The debate in respect of whether or not employees who resigned from their permanent employment forfeit their capped leave days was settled in the Labour Court of South Africa in a matter between Moegamat Noeg Martin v and the Western Cape of Education, where the court had ruled that:
“The issue of whether the applicant is entitled to be paid the accrued leave can be resolved through ascertaining from the language used in the interpretation which the parties at the ELRC meant to express when they left out resignation as one of the events that would qualify educators for payment of their accrued leave. In ascertaining this intention, regard must be had to the language and the framework within which the resolution was concluded.”
31. Furthermore, if the parties in adopting the resolution intended to include resignation as one of the events that would qualify for the payment of the accrued leave they would have included that eventuality. The above judgment dealt with whether or not an educator who resigned from their post is entitled to a payment of accrued leave. The judgment underscores the fact that an educator who resigns from their permanent post forfeits their capped leave.
32. In conclusion, the respondent submits that the applicant had by resigning from her previous position forfeited her accrued leave days; and as such accrued leave days cannot be reinstated.
Analysis of parties’ evidence and arguments
33. The applicant referred an unfair labour practice dispute related to benefits in terms of section 186 (2) (a) of the LRA. The applicant’s contention was related to the reinstatement of her capped leave accrued as of 30 June 2016. The applicant bears the onus to prove that she is entitled to the reinstatement of her capped leave benefit.
34. It was common cause that the applicant resigned on a permanent position on 30 June 2016 and was reappointed the following day, on 01 July 2016. As a result, there was no break-in service in the employ of the applicant. It was also common cause that when the applicant resigned she had accumulated 43.75 capped leave days. The accumulated capped leave days were not paid out or claimed at the time of resignation. The respondent contended that the applicant forfeited the capped leave accrued when she resigned on 30 June 2016 and that she is not entitled to the reinstatement of the accrued capped leave.
35. The respondent in its contention that the applicant is not entitled to the reinstatement of the capped leave relied on the Circular of the Director-General of the Department of Public Service and Administration dated 24/08/2009: Paragraph 4(c) which provides that:
“Employees that resigned forfeit accrued leave and on re-appointment will qualify for leave accrual applicable to those who are less than ten years I service.”
36. The respondent also relied on the PSCBC resolution 7 of 2000 which regulates the issue of pay out of annual leave accrued before 1st July 2000. The respondent argued that resignation was not an eventuality that will entitle the applicant to reinstatement of the capped leave. The PSCBC resolution 7.3 (a) provides that:
“a) Employees, who in terms of the dispensation applicable prior to 1st July 2000, have earned audited leave accruals in terms of that dispensation, shall retain the same. The employer shall pay such accrued leave on
(i) Death;
(ii) Retirement; or
(iii) Medical boarding.
37. The respondent also submitted that debate in respect of whether or not employees who resigned from their permanent employment forfeit their capped leave days was settled in the Labour Court of South Africa in a matter between Moegamat Noeg Martin v and the Western Cape of Education, et al, where the court had ruled that:
“The issue of whether the applicant is entitled to be paid the accrued leave can be resolved through ascertaining from the language used in the interpretation which the parties at the ELRC meant to express when they left out resignation as one of the events that would qualify educators for payment of their accrued leave. In ascertaining this intention, regard must be had to the language and the framework within which the resolution was concluded.”
38. The applicant, on the other hand made reference to the ELRC Resolution 7 of 2001 which regulated new leave measures for educators and it reads that :
“Educators shalÏ retain all audited leave credits accrued prior to 1 July 2000. The number of accrued leave days prior to July 2000 shall be converted to 10 working days. Any of these days that were not granted to such an educator since 1 July 2000 shall be added to the number of leave days accrued prior to 1 July 2000. The payouts in respect of such leave credits shall be made in the event of death; retirement, including early retirement; or medical boarding.
39. The applicant also submitted that ELRC Collective Agreement set out the conditions pertaining to capped leave. Leave accrued prior to 2000, plus the days annual leave not taken during 2001 are capped and are retained by the educator. The applicant submitted also that she is an institution-based educator, which means that her capped leave is retained for as long as she is in service of the respondent and that there was no requirement that the capped leave henceforth be taken within a specified time frame.
40. The ELRC resolution and PSCBC resolution 7 of 2000 does not have an express term authorizing payment of capped leave in the event of resignation. ELRC Collective agreement does not also provide an express term as to what happened to the capped leave when an employee resign.
41. The Circular issued by the Director-General of the Department of Public Service and Administration dated 24/08/2009 has a legal status of administrative rules and as such it is binding on the employees. The Circular in paragraph 4(c) provides that employees who are resigning forfeits accrued leave and on re-appointment, will qualify for leave accrual applicable to those who are less than ten years of service.
42. The respondent argued that the above paragraph in the Circular must be seen in terms of the context of the entire Circular, which is to discourage employees from cashing in their benefits. The first sentence refers to forfeiting accrued leave on resignation; however it does not specifically explain which leave is being referred to: the capped leave of 2000 or the accrued annual leave post 2000. However the context suggests that the Circular is referring to the accrued leave post 2000 as reference is made to accumulating leave; bearing in mind that leave accumulated post 2000 is not added to the capped leave. Therefore, the applicant is entitled to the reinstatement of the capped leave.
43. In Martin v Western Cape Education Department and Another (C223/04) [2007] ZALCJHB 3 (6 December 2007) it was held that
“The enquiry to determine whether a term should be implied into a contract was described by Corbett AJA in Alfred McAlphine & Son (Pty) Ltd v TVL Provincial Administration 1974 3 SA 531 (A) at 532 as:
“…an unexpressed provision of the contract which derives from the common intention of the parties, as inferred by the Court from the express terms of the contract and the surrounding circumstances. In supplying such an implied term the Court, in truth, declares the whole contract entered into by the parties.”
44. It was further held that the intention of the parties plays a critical role in the assessment of whether to imply a term in a contract.
45. The simple grammatical interpretation of the wording accrued means accumulated, collected or gathered. Therefore, it appears to me that management in the Circular implied that all forms of accrued or accumulated leave benefits are forfeited upon resignation. In any case the applicant submitted that leave accrued up to 2000 became known as “capped leave”. Therefore, it is clear that the Circular included capped leave as one of the benefits that the employee forfeits upon resignation and re-appointment without a break -in service.
46. Accordingly, I find that the applicant is not entitled to the reinstatement of the capped leave.
47. Therefore, I find that the respondent’s refusal to reinstate the applicant’s capped leave was fair.
Relief
48. The applicant sought the reinstatement of her capped leave. She is not entitled to the relief sought.
Award
49. The applicant has not been subjected to any unfair act or omission by the respondent relating to to the provision of benefits.
50. The unfair labour practice dispute referred to in terms of section 186(2)(a) against the respondent is, accordingly, dismissed.
Signature:
Commissioner: Mathabo Makwela
Sector: Education