Award  Date:

28 July 2021

Case Number: ELRC183-21/22EC
Commissioner: Catherine Willows
Date of Award: 28 July 2021

In the matter between


SAOU obo MRS TWANE DIRKER
(Union / Applicant)

And



EASTERN CAPE DEPARTMENT OF EDUCATION
(Respondent)

DETAILS OF HEARING AND REPRESENTATIONS

1. This award is rendered in terms of section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA).

2. The dispute was referred for arbitration in terms of section 186(2) (b) of the LRA and the hearing was held on the 26th July 2021 via Zoom Virtual Conferencing.


3. The Applicant, Mrs T Dirker, was represented by Ms S Te Brugge of SAOU, and the Respondent, Department of Education Eastern Cape, was represented by Mr E Hector, Labour Relations Officer for the Sarah Baartman District.

4. The hearing was digitally recorded and was finalised on the date of hearing. The Applicant submitted a bundle of documents to be utilised in the presentation of her case, such marked “Applicant Bundle A and B”. The Respondent did not utilise documentary evidence.

BACKGROUND TO THE DISPUTE

5. The Applicant is employed as an Educator at Gustav Reichel Primary School in the Sarah Baartman District. She commenced employment on 1 February 2013 with Persal No. 53951620/PG39 She referred an unfair labour practice on the basis of benefits dispute on 28 April 2021. Such was unsuccessfully conciliated on 17 June 2021 with a certificate of non-resolution issued.

6. The Applicant then filed her request for Arbitration on 22 June 2021. The Applicant’s cause of action is based upon two legs. The first is that she previously received a rural allowance in terms of Government Gazette No. 30678 of 18 January 2008. This was summarily stopped without explanation from July 2019 (last payment of such was received in June 2019).

7. The second issue in dispute is that the Applicant is claiming for her acting allowance for acting in the position of Principal at Gustav Reichel Primary School for the period of 1 July 2019 to 31 June 2020.

8. It is this period for which the Applicant claims she was not paid an allowance for, such actions on behalf of the Respondent constituting an unfair labour practice.

9. The relief sought by the Employee is for payment of the rural allowance from July 2019 to date and for payment of the acting allowance for the period of 1 July 2019 to 31 June 2020.
ISSUES
10. I am required to determine whether the refusal to by the Respondent to recognize that the Applicant was in an acting position from 1 June 2019 to 31 July 2020 be unfair labour practice or not. If I find that that it was unfair, to order an appropriate relief.

11. It was not placed in dispute by the Respondent that the Applicant is entitled to the rural incentive in terms of Government Gazette No. 30678 of 18 January 2008. The evidence of the Applicant is not challenged in this regard.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s evidence:
12. The Applicant testified under oath that she is employed as an Educator at Gustav Reichel primary School in the Sarah Baartman District. The school was identified as one of the “DTT” Rural Select Schools (224151) which allows for a rural incentive to be paid. She received such rural incentive in the amount of R2190.82 per month. This was summarily stopped without explanation in June 2019.

13. The Applicant submitted documentation and communication from 18 March 2021 whereby it stated that the Policy was reviewed in accordance to paragraph 10 and 11 of the Government Gazette No. 30678 of 18 January 2008. It was cited “In the chamber meeting of 18 March 2021 parties agreed to extend the payments of rural incentives to the 2019/2020 “DTT” select schools to 30 September 2021 to allow the task team or rural incentive time to finalise the criteria selection for the 2021 / 2022 rural incentives”.

14. The Applicant provided proof of the documentary schedule of Sarah Baartman schools which qualify for the rural incentive. Gustav Reichel Primary School exists on such schedule.

15. In terms of the Acting Allowance, the Applicant provided documentary proof of her appointment letters in terms of Resolution 8 of 2001 as P1 (Acting Principal) at Gustav Reichel School with effect from 1 January 2018 – 30 June 2018; 1 July 2018 – 30 September 2018 and 1 October 2018 to 31 December 2018.

16. As the school did not have a Principal from the incumbent’s retirement in 2016, the Applicant continued to act for the period. The School Governing Board (“SGB”) recommended the Applicant for appointment and all application forms and motivations were sent to the Respondent on 12 June 2019. The Applicant assumed the position as Acting Principal from such date. She followed up constantly with the Respondent whereby she was informed that her application was being processed.

17. Further entrenching her view that her acting position was legitimate, was that previously all her appointment letters were received ¾ months after the acting position had ended.

18. In addition, she received communication on 1 April 2019 addressed to “The Principal: Mrs T Dirker” appointing her as pay point manager in terms of Circular 8 of 2008. Such communication was issued to her by the District Director on 1 April 2019.

19. The Applicant therefore avers that she is entitled to such acting allowance for the period of 1 July 2019 to 31 June 2020.

The Respondent’s Evidence:
20. The Respondent submitted that it’s rural allowance applicable to the Applicant was revoked and summarily stopped from 1 June 2019. They accepted that the Applicant was entitled to such and did not dispute her claim to such.

21. In terms of the claim for the acting allowance, the Respondent submitted that the applicable policies dictating acting positions was well known and that a formal appointment latter from the Employer is required. The Applicant was not issued with such, and despite her belief to the contrary, her acting was not authorised and as such, the Respondent bears no onus in order to provide her with an acting allowance for the period of 1 July 2019 to 31 June 2020.

22. It was requested that in her claim in terms of an acting allowance be dismissed.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

23. Section 191 of the LRA provides that any employee alleging the unfair labour practice may refer the dispute in writing to a council, if the parties to the dispute fall within the registered scope of that council.

24. The question to be answered in the present dispute is to establish the fairness or otherwise of the Respondent’s failure or refusal to pay the Applicant an acting allowance from the period of 1 July 2019 to 31 June 2020 as well as a rural incentive from 1 July 2019.

25. With regards to the acting allowance, the Respondent avers that no appointment letter was issued to the Applicant and therefore there was no lawful acting appointment.

26. Education Labour Relations Council Resolution 8 of 2001 and Resolution 8 of 2002: “Payment of an Acting Allowance for An Educator acting in Vacant and Funded Post Vacant Post” ("the Resolution"). stipulates the conditions under which an employee will be entitled to an acting allowance.

27. Clause 1 of Annexure A of the Resolution provides that an educator, complying with the minimum requirement in paragraph 2 (2) of Chapter B of Personnel Administrative Measures, shall be appointed, in writing, by the Employer to act.

28. The Applicant did not dispute that she did not nor has received an acting appointment letter from the District Director / Employer. She assumed the duties as was her previous experience with acting, the appointment letter would only arrive / be issued months after the period had ended. She assumed that as the Application had been done as many times before, she was to assume duties and await the formal appointment letter.

29. Whilst her initiative and willingness to “step in” and act to further the interests of the school and learners, it unfortunately does not suffice to constitute an appointment to act. Without a formal appointment letter for the period concerned, I cannot arrive at a conclusion that in terms of the applicable policies, she was appointed to act in the vacant post.

30. It is trite law that an Applicant challenging an unfair act on behalf of the Respondent bears the onus to prove that such occurred and that it was unfair. On the basis of the evidence proffered by the Applicant, this burden of proof has not been established nor the requirements met.

31. It is my finding that the Applicant has failed on a balance of probabilities to prove that she was appointed in terms of the applicable policies dictating such.

32. On such basis, I cannot grant her the relief sought.

33. In terms of the claim of the Applicant for the rural incentive for the period following 1 July 2019, the entitlement to such was not disputed by the Respondent. I am therefore satisfied on the basis of the evidence led by the Applicant, together with the documentary evidence, that Gustav Reichel Primary School qualified for the rural incentive in terms of Government Gazette No. 30678 of 18 January 2008 for the period of 2019 / 2020 to 30 September 2021. The termination of such in July 2019 constituted an unfair labour practice under the auspices of the Act.

34. The Applicant is therefore entitled to receive the rural incentive of the amount of R2190.82 (two thousand one hundred and ninety rand and eighty-two cents) per month from 1 July 2019 to date.


35. It follows that in my assessment of the evidence and explanations given by the parties in terms of the rural incentive, that sufficient evidence was tendered in order to support a version that the actions of the Respondent constituted an unfair labour practice.

36. The applicant has succeeded in discharging the onus to prove her claim in relation to the rural allowance.


37. In light of the above I make the following award.
AWARD

a) The Applicant’s application fails in terms of the claim for an acting allowance for the period of 1 July 2019 to 31 June 2020.

b) The Applicant’s application in terms of the entitlement to a rural allowance in terms of Government Gazette No. 30678 of 18 January 2008 in the amount of R2190.82 per month from 1 July 2019 succeeds.

c) The Respondent is ordered to pay the Applicant the amount of R28 480. 66 (twenty-eight thousand four hundred and eighty rand and sixty-six cents) comprising of the monthly rural allowance of R2190.82 from 1 July 2019 to 31 July 2020. It must be noted that the amount of R 28 480.66 is subject to pension and tax deductions as well as relevant PERSAL calculations of the Respondent and the resultant amount must be paid into the bank account of the Applicant T Dirker (PERSAL no 539 516 20/PG39) on or before 31 August 2020.
d) No order as to costs is made.
Signature:
Catherine Willows
ELRC Panellist

ELRC 302 -20 /21 NW