ELRC644-20/21 EC
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ELRC 166-21/22LP
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Award Date:
10 October 2021
ARBITRATION
AWARD
Panellist/s: Seretse Masete
Case No.: ELRC 166-21/22LP
Date of Award: 10/10/2021
In the ARBITRATION between:
DEBEILA AND 13 OTHERS
_______________________________________________
(Union / Applicant)
and
DEPARTMENT OF EDUCATION LIMPOPO
__________________________________________________________________________________
(Respondent)
Union/Applicant’s representative: Matlale Sthephen
Union/Applicant’s address: P.O. Box 129 Atok
Telephone:
Cell: 071243 1143
Respondent’s representative: M Matlou
Respondent’s address: 113 Biccard Street Polokwane
Telephone: 015 290 9350
Cell: 072 148 2349
Particulars of proceedings and representation
1. The matter was held virtually on 20 September 2021 and both parties managed to link on zoom.
2. The Applicant, Matlale Stephen and 13 Others, see the attached list of names, (employees) were represented by Stephen Matlale while the respondent, Department of Education, (employer), was represented by M Matlou.
3. The proceedings were in English and virtually conducted.
Issues to be decided
4. I have to decide whether or not the conduct of the employer by failing to pay the employees rural allowance constituted an unfair labour Practice against them (employees).
5. I further have to determine an appropriate remedy should I find that the action of the employer constituted an unfair labour practice against the employees. A list for the names of the affected employees is attached at the end of the award.
Background to the dispute
6. The employees are employed as educators at Matsimela high School at Noko-tlou Circuit gaMakgoba.
7. They were working at a remote area but did not receive rural allowance of R2333-65 for each employee, which they were entitled to. The schools near them was receiving the said rural allowance. They sought to be paid the rural allowance in areas back dated from September 2020.
8. The employer representative indicated that the employer has made a submission already to the authority for the applicants to be paid.
9. The matter was initially scheduled to be heard on 26 of August 2021, but was postponed on the employer’s request where the employer representative agreed to settle the matter before the 20th of September 2021. The postponement was granted with a condition that should the matter not be resolved before the 20th of September 2021, the employer will carry the costs thereof.
10. By the 20th of September 2021, the matter remained unresolved and the arbitration continued.
11. During the arbitration on 20 September 2021, the employer representative indicated that employer confirmed that the school indeed was situated in a rural area (quintile 1) but the educators should be paid from the date on which the HoD approved the memorandum.
12. Both representatives of the parties testified as witnesses and no other witness was called by them and they both further did not submit any bundles of documents.
Survey of evidence and arguments
The Employees’ version
The employees’ representative, Stephen Matlale, testified under oath as follows;
13. The rural allowance started long back in 2007. Had they not lodged a dispute in it would have meant that the issue would stay even for more years. All other schools near their School were getting the rural benefit. Like any other colleagues in other rural schools, they must be treated equally. They appreciate the continuous payment that would start from September 2021, but he needed the payment to be paid in areas dating from 01 October 2020 since they started applying for rural allowance on 30 September 2020.
The employer’s evidence and arguments
The employer’s representative M Matlou, testified under oath as follows;
14. He believed that the employer did not commit any unfair labour practice but confirmed that the school qualifies for rural allowance. The benefit was not included in the employment contract and the employees were therefore not entitled for the retrospective payment. The employer would only pay from the date on which the HoD approved the memorandum which was September 2021. He would rely on some authority when submitting the heads of arguments.
Analysis of the evidence and arguments
15. It was common cause that the said school was situated in a rural area, gaMakgoba, Noko-Tlou circuit. It was also common cause that the educators lodged a grievance and the investigation conducted in August 2021 revealed that they (educators) qualified to receive a rural allowance. The issue in dispute was whether or not the retrospective payment should be back dated to September 2020 when the matter was approved in October 2021. The argument of the employees was that it was them who alerted the employer about the omission since they were left out since 2007. They further felt it would be unfair for them to be paid retrospectively from September 2021 because other schools have been benefitting long before that date.
16. The employer’s argument was that the employees lodged a grievance in May 2021 and the matter was investigated and finalised in August 2021 after the verifications. It was during that verification period where the Department found that indeed the school qualified as quintile one and that the educators qualified for the incentives. The employer representative disagreed with the employees that they should be paid retrospectively from September 2021 citing the case of Republican press (Pty) Ltd vs Ceppwawu and Others (2007) 28 ILJ 2503 (SCA) which held that there was no right to retrospective payment for benefits except if it was a salary. He argued that the employee’s entitlement to be paid by the employer whilst the review was pending did not arise from the re-instatement award but directly from the contract of employment.
17. In Polokwane Municipality vs South African Local Council Bargaining Council case number JR 1843/05, the court referred to Rycroft and Jordaan in A guide to SA Labour Law (1992) on page 169 which said, “broadly speaking disputes of right concern, the infringement, application or interpretation of existing rights embodied in a contract of employment, collective agreement or statute, while the dispute of interest(economic dispute) concern the creation of fresh rights, such as a higher wages, modification of existing collective agreement etc. Collective bargaining, mediation and, as a last resort, peaceful industrial action are generally regarded as the most appropriate avenues for the settlement of the conflicts of interests while adjudication is normally regarded as an appropriate method of reserving disputes of rights”. Although this was about jurisdiction, it is relevant in this matter because it was linked to what the court said In Horsepersa v Northern Cape Provincial administration (2000) 2 ILJ 1066 (LAC), which held that unfair labour practice provision was concerned only with disputes of rights arising “ex contractu and ex lege”. In this case, neither party led evidence to show whether the dispute was covered in the employees’ contract of employment, a policy or a collective agreement. In other words, I did not have any information as to whether the disputed issue was provided for in the contract of employment and or in a policy or collective agreement which would have made it easy for me to determine whether the employees qualified to be paid retrospectively or not. However, the employer agreed in principle that the employees qualified to be paid the rural allowance because the matter was investigated and so revealed. However, the employer believed that the payment should start on the date of signing the memorandum which was developed as a result of the investigation.
18. Looking at the Horsepersa and the Polokwane Municipality cases above, I agree with the employer that since the allowance was not ex contractu and or ex lege (no evidence), the employees did not have the right to claim retrospective payment of the rural allowance. If it was ex lege, the employees should have submitted either a policy and or a collective agreement to that effect. This is because it was the employees’ case to prove the unfairness of the employer’s conduct. The collective agreement and or the policy (if they were existing) could have assisted much because they could have outlined all the dynamics of the implementation and or application thereof. The employer’s representative also did not assist as he only mentioned Government Gazette 30678 in his closing arguments and the same gazette was never presented to me during the sitting. My take is that the employees should be paid the rural allowance with effect from the date on which
the investigation was finalised and verifications done, which was August 2021.
The signing of the memorandum and or the approval thereof by the HoD in September 2021, was only a mere confirmation. The employer must pay the cost for the postponement which took place on 26 August 2021, see paragraph 9 above.
Award
19. The Employer, Limpopo Department of Education, committed an unfair labour practice by failing to pay the employees the rural allowance from the date on which it discovered that they qualified (August 2021) and the subsequent months.
20. The employees however, did not have the right to be paid retrospectively dating from September 2020.
21. The employer is ordered to pay the employees the rural allowance of R2333-65 effective from August 2021.
22. Each educator whose name appeared on the attached list, must be paid an area amount of R7000-95 which is an outstanding amount for three (3) months, August, September and October 2021.
23. The employer is ordered to continue paying the rural allowance (R2333-65) due to the educators in the subsequent months starting on November 2021 going forward, as long as they remain employed at Matsemela high School and the allowance continues to be received by educators at quintile 1 schools.
24. The area amount mentioned in paragraph 22 above, must be paid to each one of the educators on or before 30 November 2021, failing which interests will accrue.
25. The employer is also ordered to pay the costs for the postponement that took place as per its request on 26 August 2021.
Seretse Masete Date 10/10/2021
ELRC Panellist
AWARD
Panellist/s: Seretse Masete
Case No.: ELRC 166-21/22LP
Date of Award: 10/10/2021
In the ARBITRATION between:
DEBEILA AND 13 OTHERS
_______________________________________________
(Union / Applicant)
and
DEPARTMENT OF EDUCATION LIMPOPO
__________________________________________________________________________________
(Respondent)
Union/Applicant’s representative: Matlale Sthephen
Union/Applicant’s address: P.O. Box 129 Atok
Telephone:
Cell: 071243 1143
Respondent’s representative: M Matlou
Respondent’s address: 113 Biccard Street Polokwane
Telephone: 015 290 9350
Cell: 072 148 2349
Particulars of proceedings and representation
1. The matter was held virtually on 20 September 2021 and both parties managed to link on zoom.
2. The Applicant, Matlale Stephen and 13 Others, see the attached list of names, (employees) were represented by Stephen Matlale while the respondent, Department of Education, (employer), was represented by M Matlou.
3. The proceedings were in English and virtually conducted.
Issues to be decided
4. I have to decide whether or not the conduct of the employer by failing to pay the employees rural allowance constituted an unfair labour Practice against them (employees).
5. I further have to determine an appropriate remedy should I find that the action of the employer constituted an unfair labour practice against the employees. A list for the names of the affected employees is attached at the end of the award.
Background to the dispute
6. The employees are employed as educators at Matsimela high School at Noko-tlou Circuit gaMakgoba.
7. They were working at a remote area but did not receive rural allowance of R2333-65 for each employee, which they were entitled to. The schools near them was receiving the said rural allowance. They sought to be paid the rural allowance in areas back dated from September 2020.
8. The employer representative indicated that the employer has made a submission already to the authority for the applicants to be paid.
9. The matter was initially scheduled to be heard on 26 of August 2021, but was postponed on the employer’s request where the employer representative agreed to settle the matter before the 20th of September 2021. The postponement was granted with a condition that should the matter not be resolved before the 20th of September 2021, the employer will carry the costs thereof.
10. By the 20th of September 2021, the matter remained unresolved and the arbitration continued.
11. During the arbitration on 20 September 2021, the employer representative indicated that employer confirmed that the school indeed was situated in a rural area (quintile 1) but the educators should be paid from the date on which the HoD approved the memorandum.
12. Both representatives of the parties testified as witnesses and no other witness was called by them and they both further did not submit any bundles of documents.
Survey of evidence and arguments
The Employees’ version
The employees’ representative, Stephen Matlale, testified under oath as follows;
13. The rural allowance started long back in 2007. Had they not lodged a dispute in it would have meant that the issue would stay even for more years. All other schools near their School were getting the rural benefit. Like any other colleagues in other rural schools, they must be treated equally. They appreciate the continuous payment that would start from September 2021, but he needed the payment to be paid in areas dating from 01 October 2020 since they started applying for rural allowance on 30 September 2020.
The employer’s evidence and arguments
The employer’s representative M Matlou, testified under oath as follows;
14. He believed that the employer did not commit any unfair labour practice but confirmed that the school qualifies for rural allowance. The benefit was not included in the employment contract and the employees were therefore not entitled for the retrospective payment. The employer would only pay from the date on which the HoD approved the memorandum which was September 2021. He would rely on some authority when submitting the heads of arguments.
Analysis of the evidence and arguments
15. It was common cause that the said school was situated in a rural area, gaMakgoba, Noko-Tlou circuit. It was also common cause that the educators lodged a grievance and the investigation conducted in August 2021 revealed that they (educators) qualified to receive a rural allowance. The issue in dispute was whether or not the retrospective payment should be back dated to September 2020 when the matter was approved in October 2021. The argument of the employees was that it was them who alerted the employer about the omission since they were left out since 2007. They further felt it would be unfair for them to be paid retrospectively from September 2021 because other schools have been benefitting long before that date.
16. The employer’s argument was that the employees lodged a grievance in May 2021 and the matter was investigated and finalised in August 2021 after the verifications. It was during that verification period where the Department found that indeed the school qualified as quintile one and that the educators qualified for the incentives. The employer representative disagreed with the employees that they should be paid retrospectively from September 2021 citing the case of Republican press (Pty) Ltd vs Ceppwawu and Others (2007) 28 ILJ 2503 (SCA) which held that there was no right to retrospective payment for benefits except if it was a salary. He argued that the employee’s entitlement to be paid by the employer whilst the review was pending did not arise from the re-instatement award but directly from the contract of employment.
17. In Polokwane Municipality vs South African Local Council Bargaining Council case number JR 1843/05, the court referred to Rycroft and Jordaan in A guide to SA Labour Law (1992) on page 169 which said, “broadly speaking disputes of right concern, the infringement, application or interpretation of existing rights embodied in a contract of employment, collective agreement or statute, while the dispute of interest(economic dispute) concern the creation of fresh rights, such as a higher wages, modification of existing collective agreement etc. Collective bargaining, mediation and, as a last resort, peaceful industrial action are generally regarded as the most appropriate avenues for the settlement of the conflicts of interests while adjudication is normally regarded as an appropriate method of reserving disputes of rights”. Although this was about jurisdiction, it is relevant in this matter because it was linked to what the court said In Horsepersa v Northern Cape Provincial administration (2000) 2 ILJ 1066 (LAC), which held that unfair labour practice provision was concerned only with disputes of rights arising “ex contractu and ex lege”. In this case, neither party led evidence to show whether the dispute was covered in the employees’ contract of employment, a policy or a collective agreement. In other words, I did not have any information as to whether the disputed issue was provided for in the contract of employment and or in a policy or collective agreement which would have made it easy for me to determine whether the employees qualified to be paid retrospectively or not. However, the employer agreed in principle that the employees qualified to be paid the rural allowance because the matter was investigated and so revealed. However, the employer believed that the payment should start on the date of signing the memorandum which was developed as a result of the investigation.
18. Looking at the Horsepersa and the Polokwane Municipality cases above, I agree with the employer that since the allowance was not ex contractu and or ex lege (no evidence), the employees did not have the right to claim retrospective payment of the rural allowance. If it was ex lege, the employees should have submitted either a policy and or a collective agreement to that effect. This is because it was the employees’ case to prove the unfairness of the employer’s conduct. The collective agreement and or the policy (if they were existing) could have assisted much because they could have outlined all the dynamics of the implementation and or application thereof. The employer’s representative also did not assist as he only mentioned Government Gazette 30678 in his closing arguments and the same gazette was never presented to me during the sitting. My take is that the employees should be paid the rural allowance with effect from the date on which
the investigation was finalised and verifications done, which was August 2021.
The signing of the memorandum and or the approval thereof by the HoD in September 2021, was only a mere confirmation. The employer must pay the cost for the postponement which took place on 26 August 2021, see paragraph 9 above.
Award
19. The Employer, Limpopo Department of Education, committed an unfair labour practice by failing to pay the employees the rural allowance from the date on which it discovered that they qualified (August 2021) and the subsequent months.
20. The employees however, did not have the right to be paid retrospectively dating from September 2020.
21. The employer is ordered to pay the employees the rural allowance of R2333-65 effective from August 2021.
22. Each educator whose name appeared on the attached list, must be paid an area amount of R7000-95 which is an outstanding amount for three (3) months, August, September and October 2021.
23. The employer is ordered to continue paying the rural allowance (R2333-65) due to the educators in the subsequent months starting on November 2021 going forward, as long as they remain employed at Matsemela high School and the allowance continues to be received by educators at quintile 1 schools.
24. The area amount mentioned in paragraph 22 above, must be paid to each one of the educators on or before 30 November 2021, failing which interests will accrue.
25. The employer is also ordered to pay the costs for the postponement that took place as per its request on 26 August 2021.
Seretse Masete Date 10/10/2021
ELRC Panellist