Panelist: Clint Enslin
Case No.: ELRC101-20/21EC
Date of Award: 28 April 2021
In the ARBITRATION between:
SAOU obo Duvenhage, Alida
(Union / Applicant)
Department of Education: Eastern Cape
Applicant’s representative: Ms Van Wyk
Applicant’s address: Cotswold Office Park,
No. 4, 21 Barton Road
Cotswold, Port Elizabeth, 6001 Telephone: 041 3640500
Telefax: 041 3640510
Respondent’s representative: Mr Sandiso Xhalisile
Respondent’s address: Department of Education Eastern Cape
Port Elizabeth District
Telephone: 063 764 7990 / 083 731 2322
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 14 April 2021 and the proceedings were electronically recorded.
2. The Applicant, Ms Duvenhage, was represented by Ms Van Wyk, an official from SAOU. The Respondent, Department of Education – Eastern Cape was represented by Mr Sandiso Xhalisile, a Labour Relations Officer. Ms Nomathamsanqa Mali, Deputy Director HRA of the Respondent, and Ms Nancy Serfontein, Principle Personnel Officer HR of the Respondent, were also present in the proceedings.
ISSUE TO BE DECIDED
3. Whether the Respondent’s non-payment of the Applicant’s claimed relocation allowance, upon her retirement, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
4. If so, determine appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant, a former educator, retired on 30 April 2019.
5.2 The Applicant, upon retirement, relocated from Uitenhage to Somerset West.
5.3 The Applicant applied for a relocation benefit in the amount of R17500.
5.4 The Applicant has paid the amount of R17500 out of her own pocket.
5.5 The amount of R17500 is outstanding and is owed to the Applicant by the Respondent.
5.6 The monies claimed are a benefit.
6. The Applicant handed in a bundle of documents.
SURVEY OF EVIDENCE AND ARGUMENT
7. The parties agreed that the only fact that was in dispute was the exact date that the Applicant had made her application for the monies, however, the Respondent’s representative confirmed that the said application was nevertheless made within the allowable timeframe. They did not intend to argue that the application was late.
8. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both parties indicated that they had no further evidence to lead, as all facts were common cause.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of a benefit to an employee. (Own underlining)
10. It is common cause between the parties that the relocation monies, claimed by the Applicant, are a benefit. The Applicant’s representative referred to pages 21 to 24 of the bundle in this regard. More particularly, the Employment of Educators Act 76 of 1998 (Regulation 9), PSCBC Resolution 3 of 1999 as well as Policy on Resettlement of the Department of Education, Eastern Cape, as the basis for the claim. The Respondent’s representative agreed that this was the enabling legislation and/or policies.
11. The Respondent agrees that the R17500 claimed, by the Applicant, is owing to her by the Respondent. As a result, I am of the view that the non-payment of the said monies amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicant, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.
12. The Respondent has therefore committed an Unfair Labour Practice against the Applicant.
13. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicant, Ms Alida Duvenhage, by not paying her relocation claim of R17500.
14. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicant, Ms Alida Duvenhage, an amount of R17500.
15. The amount, as referred to in paragraph 14, must be paid to the Applicant by no later than 31 May 2021.
Name: Clint Enslin