Panelist: Ncumisa Bantwini,
Case No.: ELRC780-20/21EC
Date of Award: 24 June 2021
In the ARBITRATION between:
Suzene Nathaleon Danster
Department of Education: Eastern Cape
Applicant’s representative: Mr. Anton Adams,
Telephone: 041 364 0399
Respondent’s representative: Mr Sakhiwo Kralo
Telephone: 041 403 4452 / 0862387014
Email: firstname.lastname@example.org / email@example.com
DETAILS OF HEARING AND REPRESENTATION
1. This case was scheduled for arbitration on 28 May 2021 on virtual platform . It came before the ELRC in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. for an alleged claim of non-payment of monies in respect of salary.
2. The applicant was in attendance and was represented by Mr. Anton Adams, an official from NAPTOSA while Mr Sakhiwo Kralo represented the respondent, the Department of Education-Eastern Cape.
ISSUE TO BE DECIDED
3. I am required to determine the applicant’s claim for an amount of R167 620.37 owing in terms of section 73A of the Basic Conditions of Employment Act as amended. Parties were allowed to submit written closing arguments on 31 May 2021. The proceedings were electronically recorded.
BACKGROUND TO THE DISPUTE
4. The applicant referred a dispute to the ELRC through her union regarding failure of the respondent to pay salary from her date of appointment, 01 September 2020 to the date of arbitration, 28 May 2021. When the dispute could not be resolved at conciliation, she referred it for arbitration.
5. According to Mr Adams’ opening statement the dispute relates to non payment of the applicant’s salary. The applicant was appointed by the respondent as Grade R Teacher on 01 September 2020. Her Principal, upon enquiring about her salary at the district office, he was told that the applicant was dismissed for misconduct. The applicant submitted an affidavit confirming that she was never appointed and dismissed by the respondent before 01 September 2020. Even of the applicant was dismissed for misconduct, she should have been charged but no charges were levelled against the applicant.
6. The applicant was initially appointed by the School Governing Body (SGB) on a temporal basis in 2009 and was paid by the SGB. The applicant seeks payment of unpaid salary and removal of the blockage on PERSAL as a remedy.
7. The applicant Ms Suzenne Nathaleon Danster testified as follows:
8. She is employed at Alfonso Primary School as Grade R Teacher since 01 September 2020, earning R211 731 per annum. When her Principal enquired about her salary at the district office, he was advised that there is a code blocking her salary on PERSAL but she never got an explanation about her non payment by the respondent.
9. The applicant testified further that before 01 September 2020, she was employed by SGB at Nomoyi Primary School in Missionvale//Port Elizabeth and was never dismissed. She seeks removal of the blockage on PERSAL and be paid her salary from her date of appointment.
10. Under cross examination, the applicant testified that she has never received a dismissal letter from the respondent before and that she was appointed on 01 September 2020 todate as she was never charged for any misconduct before.
11. In closing, Mr Adams argued as follows:
12. The applicant was employed from 01 September 2020 as an Educator, earning R211 731 per annum. The respondent failed to pay her salary from the date of her appointment. Upon enquiring from the district office, her Principal was advised that PERSAL was blocked but a submission has been made for the applicant’s salary to be paid. The applicant seeks payment of R167 620.37 which is the total amount which was never paid to her.
13. According to Mr Kralo’s opening statement, the applicant was given an offer of employment which she signed and she assumed duties on 01 September 2020. She is employed as Grade R Teacher at Alfonso Primary School in Nelson Mandela Bay District in Port Elizabeth.
14. In closing, Mr Kralo confirmed that the applicant is currently employed as an Educator at Alfonso Primary School as Grade R Teacher from 01 September 2020, earning R211 731.00 per annum.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. Both parties conceded that the respondent failed to pay the applicant’s salary amounting to R211 731 per annum divide by 12 months= R17 644.25 per month x 10 months = R167 620.37 for the period 01 September 2020 to 14 June 2021 (9 months and 2 weeks). The applicant seeks payment of the money owed to her by the respondent as a remedy.
16. In the light of the above evidence, I find that the respondent owes the applicant an amount of R167 620.37, calculated as R17 644.25 x 9 months and 2 weeks.
17. In the circumstances, I deem it reasonable to make the following award;
18. The respondent, the Department of Education-Eastern Cape is ordered to pay an amount of R167 620.37 to the applicant Ms. Suzene Nathaleon Danster by no later than 31 July 2021.
19. There is no order as to costs.
Commissioner: Ncumisa Bantwini