Case Number: ELRC 700-20/21 EC
Commissioner: Dennis Gondoza
Date of Award: 03 May 2021
In the ARBITRATION between
SAOU obo Heutink J
Department of Education (Eastern Cape)
Employee’s representative: Ms V van Wyk
Employer’s representative: Ms A Slabbert
DETAILS OF HEARING AND REPRESENTATION
1. The matter was held virtually on 6 April 2021 and all parties managed to link on Zoom.
2. The “Applicant”, Mr Heutink J was represented Ms V Van Wyk; a trade union official for SAOU, and the “Respondent” was represented by Ms A Slabbert.
3. The hearing was conducted in English and the proceedings were fully explained to the parties. Handwritten notes were kept, and the proceedings were digitally recorded.
ISSUE TO BE DECIDED
4. I must decide whether the Applicant is entitled to capped leave pay-out as provided for in terms of the ELRC Resolution 7 of 2011 and whether there has been compliance with the BCEA. I must also decide on the appropriate relief.
BACKGROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent since 1 January 1978. The Applicant retired on the 31st of December 2019 as an Educator at Merryvale Special School in Port Elizabeth.
6. At the time of his retirement, the Applicant had accumulated 91 days capped leave.
7. Before capped leave is paid out, the Department of Education must conduct an audit of the capped leave claimed and verify whether the documents and calculations received from the district office are correct.
8. The Applicant has submitted his claim for capped leave and all documentation to the district office who have forwarded the claim to the Provincial office to conduct the audit and verify the documentation and calculations received from the district office before they can effect the payment of the capped leave.
THE APPLICANTS’ CASE
9. The Applicant contends that the Respondent has to date no paid out the 91 capped leave days which amount to a cash value of R209 630.12.
10. The Applicant avers that he has followed up on his capped leave payment, numerous times with the Department of Education but has not received any feedback except that his claim has been submitted to the Provincial office for processing.
11. The Applicant contends that the Department of Education is unreasonably withholding his capped leave pay-out and is taking a long period of time to process payment for his capped leave. In addition, Applicant contends that more than 16 months have passed since his retirement and he has not received any payment for his capped leave.
12. The Applicant argues that he is being unfairly treated as his wife and two (2) other Educators who retired together with the Applicant from the same school at the same time, have already received their leave gratuity for capped leave soon after retirement.
13. The Applicant concedes that accrued leave is subject to an audit process and may only be paid once the audit process has been finalised and the exact amount owed has been determined.
THE RESPONDENT’S CASE
14. The Respondent admits that the Applicant retired on the 31st of December 2019.
15. The Respondent confirms that the Nelson Mandela District Office submitted the Applicant’s documentation to the Provincial office for the facilitation of payment of the Applicant’s capped leave on the 11th of February 2021.
16. The Respondent concedes that the Applicant has not received payment and such payment will only be made once the Provincial office has verified the documentation and calculations received from the District office via the audit process.
17. The Respondent concedes and admits that the Applicant is entitled to the payment of his capped leave and that the relevant documentation has been submitted to the Provincial office for processing.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. While I have considered all the evidence and arguments, I have decided that for the sake of brevity, I will not summarise the evidence and arguments here in detail. I will refer in more detail to those aspects of the evidence and arguments when necessary, during my evaluation of the evidence and arguments. The same applies to the exhibits that were handed in.
19. Foremost, I deem it prudent to list a few principles that are applicable to disputes of this nature. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award -
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes or is in the form of a declaratory order.” (emphasis added)
20. ELRC Resolution 7 of 2001, provides as follows:
21. Both the Applicant and Respondent conceded that the payment of the capped leave can only be done once the Provincial District has conducted the Audit and determined the exact amount due for payment to the Applicant.
22. The issue here is not whether the Applicant is entitled to capped leave payment but rather the long delays that the Applicant has endured. The Respondent concedes and admits that the Applicant is entitled to capped leave payment.
23. The Applicant’s last pay slip, captures and confirms the capped leave days as 91 days. The Respondent does dispute the accuracy of this record and the capped leave days due to the Applicant.
24. I must complement the respondent’s representative for her honesty and integrity in these proceedings that assisted in resolving the dispute between the parties, unfortunately the, undertaking to supply quantum calculations was not forthcoming.
25. In the premise, I render the following award.
The Respondent is hereby ordered to process and pay the Applicant’s uncontested capped leave payment of 91 days amounting R209630.12 subject to all relevant statutory deductions (Leave Gratuity = 91 days / 600588: annual salary/ 260.714: working hours), to the Applicant’s known Bank Account no later than the 1 June 2021.
Commissioner: Dennis Gondoza