Case No ELRC271-20/21EC
In the matter between
SAOU obo JEM Aucamp Applicant
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 9 June 2021
DATE OF AWARD: 10 June 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Department of Education – Eastern Cape has failed to pay out the educator’s leave gratuity.
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 69.5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (Collective Agreement No. 6 of 2016). The Virtual Arbitration hearing was held on 9 June 2021 via Zoom.
2. The Applicant, Ms JEM Aucamp - Persal Number 51426790, was present and was represented by Ms V Van Wyk from SAOU.
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr L Ndzonga from the Labour Relations Department.
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Respondent has failed to pay out the Applicant’s leave gratuity and if the Respondent has contravened the provisions of Resolution 7 of 2001 (PAM Chapter H) order payment of the Applicant’s leave gratuity.
BACKGROUND TO THE DISPUTE
5. The Applicant was previously employed by the Respondent as an Educator at Carel Theron Primary School in Middelburg and went on retirement on 30 April 2017.
6. The Applicant has received her pension, however has still not been paid her leave gratuity.
7. The Applicant seeks to have the leave gratuity paid out by the Respondent.
8. The parties had a combined bundle for the proceedings.
SURVEY OF EVIDENCE AND ARGUMENT
9. It is common cause between the parties:
- That the Applicant was employed by the Respondent as an Educator at Carel Theron Primary School in Middelburg before going on retirement.
- That the Applicant retired on 30 April 2017 in terms of the Employment of Educators Act No 76 of 1998.
- That the Applicant had received her pension benefits.
- That the Applicant had still not received her leave gratuity.
- That the Applicant earned a monthly gross Salary of R28 280.42 prior to retirement. (R339 365.00 per annum).
- That in terms of ELRC Resolution 7 of 2001 Annexure A, Leave Measures, Chapter F paragraph 5, as well as Chapter H Paragraph H4.5 in the PAM: Annual leave accrued prior to 1 July 2000 and during the period 1 July 2000 to 31 December 2001, should be paid out on retirement.
- That the Applicant’s leave gratuity reflected as 68.14 days on her payslip for February 2017. (Bundle page 9).
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Respondent’s Submissions
11. The Respondent’s Representative stated that the Respondent does not dispute the fact that the Applicant needs to be paid her leave gratuity.
12. The Respondent’s Representative further stated that the Respondent is unable to verify the exact amount of days owing to the Applicant due to the time that had lapsed as the information is no longer on the Persal system.
13. The Respondent’s Representative further stated that this information would have to be requested from Treasury and this takes time.
The Applicant’s Submissions
14. The Applicant’s Representative confirmed that the Respondent had still not paid the Applicant for her leave gratuity.
15. The Applicant’s Representative stated that the Respondent has had sufficient time to get all the required information and the matter cannot be delayed any further.
16. The Applicant’s Representative further stated that numerous attempts have been made over the last couple of years to resolve the matter and that for a payment which should have been made with the Applicant’s retirement.
17. The Applicant’s Representative further stated that the Respondent should pay interest due to the delay in payment.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
18. It is common cause between the parties that the Applicant’s leave gratuity needs to be paid out by the Respondent.
19. Resolution 7 of 2001 Annexure A, Chapter F Paragraph 5.2 clearly states that:
The payouts in respect of such leave credits shall be made in the event of;
5.2.2 Retirement, including early retirement; or
5.2.3 Medical boarding
20. These same conditions for payout of leave credits are stated in the Personnel Administrative Measure (PAM) document Chapter H Paragraph H.4.5.3.
21. This principle was instilled by the Basic Conditions of Employment Act No 75 of 1997 (BCEA) Section 40 (b), which clearly states:
Payments on Termination
On termination of employment, an employer must pay an employee -
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken;
22. According to the Applicant’s February 2017 payslip the Applicant has 68.14 days leave gratuity accrued. After some 4 years and 2 months the Respondent is still unable to verify/audit the Applicant’s leave gratuity. This is totally unacceptable under the circumstances.
23. The Applicant’s payslip is a document issued by the Respondent and contains the relevant information which for all intentions and purposes should be correct and I do not see why this matter cannot be finalized on the days indicated on the payslip.
24. The amount due to the Applicant for her leave gratuity is:
Gross Salary per month R28 280.42 ÷ 4.33 = R6 531.27 per week ÷ 5 days work week = R1 306.25 per day.
R1 306.25 per day X 68.14 days accrued leave = R89 007.87
25. The Applicant’s Representative has requested that interest be paid on the amount outstanding. Section 75 of the BCEA provides that an employer must pay interest on any amount due and payable in terms of the BCEA at the rate of interest prescribed in terms of Section 1 of the Prescribed Rate on Interest Act no. 55 1975, to any person to whom a payment should have been made.
26. It is my finding based on the above submissions that the Respondent has contravened Resolution 7 of 2001 by failing to pay out the Applicant’s leave gratuity. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicant’s leave gratuity and therefore make the following award.
27. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, JEM Aucamp – Persal Number 51426790, the amount of R89 007.87 (Eighty Nine Thousand and Seven Rand and Eighty Seven Cents) less PAYE.
28. The payment mentioned in paragraph (27) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, JEM Aucamp – Persal Number 51426790, must be done by no later than 30 June 2021.
29. Should the payment as mentioned in paragraph (27) above, for whatever reason, not be made by 30 June 2021, the Respondent, Department of Education – Eastern Cape, is to pay interest at 7% on the amount of R R89 007.87 (Eighty Nine Thousand and Seven Rand and Eighty Seven Cents) to the Applicant, JEM Aucamp – Persal Number 51426790 , from 1 July 2021 until date of payment by the Respondent, Department of Education – Eastern Cape, in terms of Section 75 of the BCEA.
Panellist: AW Howden