ELRC284-21/22EC
Award Date:
30 August 2021
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Panelist: Jonathan Gruss
Case No.: ELRC284-21/22EC
Date of Award: 30 August 2021
In the ARBITRATION between:
SAOU obo Karen Vorster
(Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mrs Harvey
Respondent’s representative: Ms Sikithi
Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, claim for salary owed.
DETAILS OF HEARING AND REPRESENTATION
1. This 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 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 17 August 2021 and the proceedings were electronically recorded. The applicant’s union, SAOU referred an enforcement dispute on behalf of the applicant, Karen Voster to the ELRC. The applicant was represented by Mrs Harvey, the Provincial Secretary for the Eastern Cape for SAOU. The respondent, Department of Education: Eastern Cape were represented by Ms Sikithi, an Assistant Director Labour Relation.
ISSUE TO BE DECIDED
2. This dispute concerns the alleged non-payment of the applicant’s salary for the month of January 2021. I am required to determine whether the respondent is indebted to the applicant for the payment of outstanding remuneration.
BACKGROUND TO THE ISSUES
3. The applicant claims that she tendered services for the respondent as an educator at Lady Grey Arts Academy in Lady Grey and was not paid her salary for the month January 2021.
SURVEY OF EVIDENCE
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
5. The applicant gave evidence under oath to the following effect. She initially commenced employment as temporary educator at Lady Grey Art’s Academy during the period July 2020 to December 2020. She was remunerated for that period. On 1 December 2020, she was translated as a post level 1 educator and she was paid her salary in December 2020 and from February 2021 onwards. According to a persal, print out (No.57505977) as confirmed in her bundle, she was translated on 1 December 2021 and therefore she was supposed to be paid a basic salary of R23336.50 in January 2021. According to the GEPF print out the applicant’s service date as a member of the GEPF was 1 December 2020.
6. The respondent did not dispute the applicant’s entitlement and explained that the non-payment was due to administrative challenges experienced and the applicant should hopefully shortly be paid her outstanding January 2021 remuneration.
ANALYSIS OF EVIDENCE AND ARGUMENT
7. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
7.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
7.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
8. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
8.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
8.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
9. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
10. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee.
11. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
12. The payment of any employee’s wages forms part of their conditions of service.
13. It was not in dispute that the applicant was not paid her salary in January 2021 although she tendered her services and taught learners .The documentary evidence as presented by the applicant is conclusive in that she should have been remunerated in January 2021 in that she was and is an employee of the respondent.
14. I must complement the respondent’s representative for her honesty and integrity in these proceedings, she assisted us all in resolving the dispute.
15. I therefore make the following award.
AWARD
16. The respondent, Department of Education: Eastern Cape is indebted to the applicant, Karen Voster in the amount of R23336.50 subject to statutory deductions for rendering services as an educator at Lady Grey Art’s Academy for the month of January 2021.
17. The respondent is ordered to pay the applicant an amount of R23336.50 subject to statutory deductions by no later than 30 September 2021.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC284-21/22EC
Date of Award: 30 August 2021
In the ARBITRATION between:
SAOU obo Karen Vorster
(Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mrs Harvey
Respondent’s representative: Ms Sikithi
Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, claim for salary owed.
DETAILS OF HEARING AND REPRESENTATION
1. This 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 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 17 August 2021 and the proceedings were electronically recorded. The applicant’s union, SAOU referred an enforcement dispute on behalf of the applicant, Karen Voster to the ELRC. The applicant was represented by Mrs Harvey, the Provincial Secretary for the Eastern Cape for SAOU. The respondent, Department of Education: Eastern Cape were represented by Ms Sikithi, an Assistant Director Labour Relation.
ISSUE TO BE DECIDED
2. This dispute concerns the alleged non-payment of the applicant’s salary for the month of January 2021. I am required to determine whether the respondent is indebted to the applicant for the payment of outstanding remuneration.
BACKGROUND TO THE ISSUES
3. The applicant claims that she tendered services for the respondent as an educator at Lady Grey Arts Academy in Lady Grey and was not paid her salary for the month January 2021.
SURVEY OF EVIDENCE
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
5. The applicant gave evidence under oath to the following effect. She initially commenced employment as temporary educator at Lady Grey Art’s Academy during the period July 2020 to December 2020. She was remunerated for that period. On 1 December 2020, she was translated as a post level 1 educator and she was paid her salary in December 2020 and from February 2021 onwards. According to a persal, print out (No.57505977) as confirmed in her bundle, she was translated on 1 December 2021 and therefore she was supposed to be paid a basic salary of R23336.50 in January 2021. According to the GEPF print out the applicant’s service date as a member of the GEPF was 1 December 2020.
6. The respondent did not dispute the applicant’s entitlement and explained that the non-payment was due to administrative challenges experienced and the applicant should hopefully shortly be paid her outstanding January 2021 remuneration.
ANALYSIS OF EVIDENCE AND ARGUMENT
7. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
7.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
7.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
8. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
8.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
8.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
9. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
10. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee.
11. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
12. The payment of any employee’s wages forms part of their conditions of service.
13. It was not in dispute that the applicant was not paid her salary in January 2021 although she tendered her services and taught learners .The documentary evidence as presented by the applicant is conclusive in that she should have been remunerated in January 2021 in that she was and is an employee of the respondent.
14. I must complement the respondent’s representative for her honesty and integrity in these proceedings, she assisted us all in resolving the dispute.
15. I therefore make the following award.
AWARD
16. The respondent, Department of Education: Eastern Cape is indebted to the applicant, Karen Voster in the amount of R23336.50 subject to statutory deductions for rendering services as an educator at Lady Grey Art’s Academy for the month of January 2021.
17. The respondent is ordered to pay the applicant an amount of R23336.50 subject to statutory deductions by no later than 30 September 2021.
Name: Jonathan Gruss
(ELRC) Arbitrator
ELRC 302 -20 /21 NW
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