PSES 229-21/22EC
Award Date:
02 September 2021
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Case Number: PSES 229-21/22EC
Commissioner: Catherine Willows
Date of Award: 02 September 2021
In the matter between
SAOU obo MRS MARIE ODENDAAL
(Applicant)
And
EASTERN CAPE DEPARTMENT OF EDUCATION
Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. The arbitration hearing was held virtually on 27 August 2021 and all parties managed to link on Zoom.
2. The Applicant, Mrs Marie Odendaal was represented Ms S Te Brugge; a trade union official for SAOU, and the Respondent was represented by Mr TW Hena, Labour Relations Officer.
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.
BACKROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent from 1 January 1976 and approval was granted for her retirement in terms of Section 10 (3) of Employment of Educators Act 76 of 1998 on 2 May 2020 to take effect from 1 January 2021. The Applicant’s last day of service would be 31 December 2020. As per the Applicant’s last payslip, she had accumulated 151.42 days of capped leave.
6. The Applicant is claiming that in terms of ELRC Resolution 7 of 2001, paragraph 5.2, accrued leave credits should be paid out in the event of retirement. In the Personnel Administrative Measures (“PAM”) , chapter H.4.5.2 and H.4.5.3.2 it states that leave days accrued prior to 1 July 2000 have to be paid out as a gratuity upon retirement.
7. The Respondent indicated that they do not dispute the Applicant’s claim to capped leave nor do they dispute the calculations and amount as calculated by the Applicant as the amount owing R262 458. 27
8. 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.
9. The Applicant has submitted her 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
10. The Applicant contends that the Respondent has to date no paid out the 151.42 capped leave days which amount to a cash value of R262 458.27.
11. The Applicant avers that she has followed up on her capped leave payment, numerous times with the Department of Education but has not received any feedback except that her claim has been submitted to the Provincial office for processing.
12. The Applicant contends that the Department of Education is unreasonably withholding her capped leave pay-out and is taking a long period of time to process payment for her capped leave.
THE RESPONDENT’S CASE
13. The Respondent admits that the Applicant retired on the 31st of December 2020 and does not dispute the amount of 151.42 days capped leave amounting to the cash amount of R262 458. 27
ANALYSIS OF EVIDENCE AND ARGUMENT
14. 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.
15. 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.
16. The issue here is not whether the Applicant is entitled to capped leave payment but rather the delay that the Applicant has endured. The Respondent concedes and admits that the Applicant is entitled to capped leave payment.
17. The Applicant’s last pay slip, captures and confirms the capped leave days as 151.42 days. The Respondent does not dispute the accuracy of this record and the capped leave days due to the Applicant.
AWARD
a. In the premise, I render the following award.
b. The Respondent is hereby ordered to process and pay the Applicant’s uncontested capped leave payment of 151.42 days amounting R262 458. 27 subject to all relevant statutory deductions, to the Applicant’s known Bank Account no later than the 30 September 2021.
c. No further order is made.
Signature:
Catherine Willows
ELRC Panellist
Commissioner: Catherine Willows
Date of Award: 02 September 2021
In the matter between
SAOU obo MRS MARIE ODENDAAL
(Applicant)
And
EASTERN CAPE DEPARTMENT OF EDUCATION
Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. The arbitration hearing was held virtually on 27 August 2021 and all parties managed to link on Zoom.
2. The Applicant, Mrs Marie Odendaal was represented Ms S Te Brugge; a trade union official for SAOU, and the Respondent was represented by Mr TW Hena, Labour Relations Officer.
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.
BACKROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent from 1 January 1976 and approval was granted for her retirement in terms of Section 10 (3) of Employment of Educators Act 76 of 1998 on 2 May 2020 to take effect from 1 January 2021. The Applicant’s last day of service would be 31 December 2020. As per the Applicant’s last payslip, she had accumulated 151.42 days of capped leave.
6. The Applicant is claiming that in terms of ELRC Resolution 7 of 2001, paragraph 5.2, accrued leave credits should be paid out in the event of retirement. In the Personnel Administrative Measures (“PAM”) , chapter H.4.5.2 and H.4.5.3.2 it states that leave days accrued prior to 1 July 2000 have to be paid out as a gratuity upon retirement.
7. The Respondent indicated that they do not dispute the Applicant’s claim to capped leave nor do they dispute the calculations and amount as calculated by the Applicant as the amount owing R262 458. 27
8. 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.
9. The Applicant has submitted her 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
10. The Applicant contends that the Respondent has to date no paid out the 151.42 capped leave days which amount to a cash value of R262 458.27.
11. The Applicant avers that she has followed up on her capped leave payment, numerous times with the Department of Education but has not received any feedback except that her claim has been submitted to the Provincial office for processing.
12. The Applicant contends that the Department of Education is unreasonably withholding her capped leave pay-out and is taking a long period of time to process payment for her capped leave.
THE RESPONDENT’S CASE
13. The Respondent admits that the Applicant retired on the 31st of December 2020 and does not dispute the amount of 151.42 days capped leave amounting to the cash amount of R262 458. 27
ANALYSIS OF EVIDENCE AND ARGUMENT
14. 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.
15. 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.
16. The issue here is not whether the Applicant is entitled to capped leave payment but rather the delay that the Applicant has endured. The Respondent concedes and admits that the Applicant is entitled to capped leave payment.
17. The Applicant’s last pay slip, captures and confirms the capped leave days as 151.42 days. The Respondent does not dispute the accuracy of this record and the capped leave days due to the Applicant.
AWARD
a. In the premise, I render the following award.
b. The Respondent is hereby ordered to process and pay the Applicant’s uncontested capped leave payment of 151.42 days amounting R262 458. 27 subject to all relevant statutory deductions, to the Applicant’s known Bank Account no later than the 30 September 2021.
c. No further order is made.
Signature:
Catherine Willows
ELRC Panellist
ELRC 302 -20 /21 NW
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