ELRC644-20/21 EC
Text
ELRC208-21/22LP
Award Date:
18 October 2021
THE MATTER BETWEEN
MATHEBULA, JEREMIAH AND 7 OTHERS APPLICANTS
VS
SUPERINTENDENT-GENERAL:
LIMPOPO DEPARTMENT OF EDUCATION RESPONDENT
Case No: ELRC208-21/22LP
Dates: 27 August and 17 September 2021
Venue: Hybrid (virtual via Zoom)
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the arbitration matter between Mr Jeremiah Mathebula, SS Malatji, M Mtileni, T Ngobeni, ET Mkhari, TG Mokone, MJ Mkansi and AG Mashele (the applicants) versus the Limpopo Department of Education as the respondent. The arbitration hearing took place in hybrid form over Zoom on 27 August and 17 September 2021. The applicants were represented by Mrs Bianca Perry, an Attorney from Thomas & Swanepoel Attorneys from Tzaneen. The respondent was represented by Mr Mokgoba Matlou, its Labour Relations Officer.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 186(2)(a) of the Labour Relations Act (the Act) and the award is issued in terms of section 138(7) of the Act.
3. The proceedings were digitally recorded. The parties agreed and requested to conclude the arbitration matter through the submission of heads of arguments on 27 and 30 September and 04 October 2021, whereafter the award shall follow within 14 days.
ISSUE TO BE DECIDED
4. I am called upon to decide whether the applicants are entitled to be paid their outstanding rural allowance with retrospective effect from March 2021.
BACKGROUND TO THE DISPUTE
5. It is common cause that the applicants are employed by the respondent as educators and based at Mdingazi Secondary School situated in the Mopani District of the respondent. Following the respondent’s concession that the applicants do qualify to receive a remoteness incentive benefit named ‘rural allowance’, the dispute occurred after the respondent’s refusal to pay the benefit to the applicants with retrospective effect from 01 March 2021. The respondent apparently only wants to start paying the benefit to the applicants starting from September 2021.
6. Disgruntled with this decision of the respondent, the applicants lodged an unfair labour practice dispute with the Council on 07 June 2021. Conciliation took place on 24 June 2021 and the dispute remained unresolved, leading to the issuing of a certificate of non-resolution of the dispute. The applicants applied for arbitration on 16 August 2021, which subsequently took place on the dates mentioned in paragraphs 1 and 3 above.
7. It is common cause that the applicants qualify to receive the R2 333.65 rural allowance benefit (the allowance), of which the respondent has no problem to pay it but only from the date on which it approves the payment of the allowance. The applicants are of the view that the allowance became due to them in March 2021, thus their demand that the allowance be paid to them with retrospective effect from 01 March 2021 coupled with compensation for the unfair labour practice.
SURVEY OF EVIDENCE AND ARGUMENT
8. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
9. The parties agreed to use the applicant’s bundle of evidence as documentary evidence for purposes of this arbitration, coupled with their heads of arguments.
Applicants’ Case
10. Mr Jeremiah Mathebula “Mr Mathebula”, one of the applicants (a Teacher), was sworn in and he testified as the only witness in this case. He testified that most of the teachers who are based at their neighbouring schools near Tzaneen has been receiving the allowance all along. Mr Mathebula stated that they are disgruntled that the respondent only wants to give them the benefit now without retrospective payments.
11. In cross-examination, Mr Mathebula stated that the allowance has been paid to the other school’s teachers for the past three years, such as those teachers who are based at Mookgo Secondary School.
12. The applicants’ representative submitted her heads of arguments and gave a brief background of the allowance and the policies which established it. She submitted that since it is common cause that the applicants do qualify for the allowance, the respondent has admitted to having committed an act of unfair labour practice and that the applicants want a retrospective payment of the allowance, incentive contracts coupled with compensation as solatium for the unfairness.
13. The representative submitted that the respondent has shown a tendency of only implementing the allowance if and when its educators challenge it through forums of this kinds. She submitted that though the PAM policy of the respondent does not particularly provide for retrospective payments, the applicants are at least entitled to a payment of the allowance as from the date on which the dispute arose (March 2021).
Respondent’s Case
14. The respondent’s representative confirmed the common cause issues in his answering papers and stated that the information of the applicants had to be verified first by the respondent after the dispute was lodged. He stated that the verification was completed on 25 August 2021 whereafter the approval for implementation was sought through the line functions of the respondent. The representative submitted that the respondent only approved the allowance for the applicants on 09 September 2021.
15. The representative relied on case law and stated that backpays are not statutorily prescribed. He stated that the dispute occurred in March 2021 and the applicant waited until June 2021 to lodge a dispute instead of seeking to conclude an incentive contract with the respondent. The representative submitted that the Government Gazette does not cater for retrospective payments of the allowance and that this allowance must only be paid from the date on which the respondent gave its approval.
Applicant’s Reply
16. The applicants’ representative submitted that the respondent is responsible for the delay of the dispute since it took it three months to do its verification and prejudicing the applicants in the process. She submitted that the case law relied upon by the respondent refers to unfair dismissal disputes where retrospective reinstatements were dealt with.
17. The representative submitted that the duty to ensure that the incentive contract is concluded rests with the respondent and not the applicants. She cited as an example, the neighbouring school (Mookgo) whose educators receives the allowance without having signed incentive contracts.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. This is an unfair labour practice dispute, benefits as provided for in section 186(2)(e) of the Act. The provision of the benefit (rural allowance) which was initially in dispute, became a common cause factor when the respondent admitted at conciliation that the applicants are indeed entitled to receive the benefit in accordance with Government Gazette No. 30678 dated 18 January 2008. The provision of this benefit was also incorporated into the respondent’s policy document, Personnel Administrative Measures (PAM) on 12 February 2016.
19. What led to the referral of this dispute to arbitration was when the parties disagreed on whether the allowance should be paid-out to the applicants with retrospective effect from 01 March 2021 when the dispute occurred or from 09 September 2021 which is the date on which the respondent approved the payment of the allowance of the eight applicants.
20. I have noticed that both parties did not adhere to the dates agreed upon as far as the submission of the papers are concerned. It started with the respondent who submitted its answering heads of arguments after the due date 30 September 2021 followed by the applicants who also missed their due date of 04 October 2021 in relation to their replication (based on the lateness of the respondent’s papers). Be that as it may, I have decided to condone both late submissions for the sake of resolving this dispute.
21. The applicants are of the view that the provision of the allowance has been in existence for quite some time and that the respondent should at least, pay them the allowance from the date on which the dispute occurred. The PAM policy of the respondent is silent on the retrospective payments of the allowance.
22. The respondent, on the other hand is of the opinion that it must only pay the allowance from the date on which it approved the payment of the allowance without retrospective effect. Not only is the PAM policy of the respondent also silent on the retrospective payment of the allowance, but so too did the respondent not provide any legal basis or policy document on why it cannot pay the allowance with retrospective effect from the date on which the dispute occurred.
23. The respondent argued that the applicants only lodged their dispute in June 2021 and should not request a retrospective payment of the allowance since it also only approved the payment thereof in September 2021. I find this argument of the respondent rather odd in that the respondent knew since 2008 that it has a responsibility to pay the allowance to the applicants and failed to do so. The applicants are in my view lenient towards the respondent for requesting a retrospective payment of this allowance since March 2021 and not since 2016, at least, when the allowance was inserted in the provisions of PAM.
24. The respondent was in my view, was best placed in March 2021, when the dispute occurred, to implement the allowance in the manner in which it is proposing to implement it now. Instead, it opted to drag out the resolution of this dispute until only now (in September 2021) when the matter was set down for arbitration.
25. Section 186(2)(a) of the LRA stipulates the following:
186 Meaning of dismissal and unfair labour practice
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct of the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
[my emphasis added]
26. It is my finding that the respondent’s refusal to pay the allowance, which the applicants are legally entitled to, from the date on which the dispute occur, falls within the bracket of unfair labour practice relating to benefit.
RELIEF
27. The applicants requested the following as a form of relief:
27.1 That the respondent enters into incentive contracts with the applicants as required by Item E.1.2.1.1(c) of PAM by no later than a date determined by me,
27.2 Payment of the due and arrear incentive to the individual applicants calculated from March 2021, until the date when the award is rendered,
27.3 That the respondent must continue to pay the incentive to the individual applicants for as long as they qualify in terms of the provisions of PAM, irrespective whether the respondent have complied with subparagraph 27.1 above
27.4 Maximum compensation for the unfair labour practice committed by the respondent as a solatium to the applicants.
28. I shall now turn to the law to check on the legitimacy of the relief sought by the applicants. Section 193(4) of the Act provides the following:
193 Remedies for unfair dismissal and unfair labour practice
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
29. It is clear from subsection 193(4) of the Act that I am empowered to determine this dispute on terms which I deem reasonable including but not limited to compensation as a form of solatium for the unfair labour practice which the applicants had to endure. I shall now deal with these requested remedies separately under different headings.
(Subparagraph. 27.1 above) The conclusion of incentive contracts
30. Item E.1.2.1.1(c) of PAM provides the following:
E.1.2 Incentives to educators (Government Gazette 30678 dated 18 January 2008)
E.1.2.1 Measures relevant to the payment of incentives to educators
E.1.2.1.1 The purpose of the measures is to provide for the payments of incentives to academically and/or professionally qualified educators who qualify for incentives by meeting certain prescribed criteria.
(a) ………..
(b) ……….
(c) An educator who meets the criteria of the post eligible for incentives will be required
to enter into an “incentive contract” with the provincial department of education. The “incentive contract” will indicate the amount and kind of the incentive, the period for which the incentive is payable, specific conditions such as satisfactory performance, being available at school during working hours, being regular and punctual, being available to the school outside school hours for school functions as well as parent meetings.
31. It is clear from these provisions that a peremptory duty is placed on the respondent to require of the applicants to conclude an “incentive contract” with them. This relief which is sought by the applicants is reasonable and mandatory. I shall as a result order the respondent to comply with Item E.1.2.1.1(c) of the PAM document.
(Subparagraph 27.2 above) Payment of the due and arrears rural allowance from March 2021 to date of the Award
32. Having found in paragraph 26 above that the applicants are entitled to the allowance and that the respondent committed an act of unfair labour practice by not paying the allowance with retrospective effect from March 2021, I shall as a result order that the respondent must pay the allowance to the applicants with retrospective effect from March 2021 until October 2021 (which is the month in which my award is served on the parties. This shall be the individual amount of R2 333.65 x 8 applicants = R18 669.20 for 8 months (March until October 2021) = R149 353.60. I shall order the respondent to pay an amount of R149 353.60 as arrears amount to the eight applicants.
(Subparagraph 27.3) The respondent must continue to pay the allowance to the applicants as long as they do qualify
33. Since it is prevalent that the rural allowance is attached to the posts occupied by the eight applicants, the conditions outlined in Item E.1.2.1.1 of PAM are applicable. I shall as a result order that the applicants must continue to receive the allowance for as long as they meet the requirements outlined in Item E.1.2.1.1 of the PAM document.
(Subparagraph 27.4) Maximum compensation for the unfair labour practice endured by the applicants as solatium.
34. In addition to the above relieves sought by the applicants, they requested compensation as an additional relief for the unfair conduct of the respondent. Let me once again consult the Act in this regard.
35. Section 195 of the Act provides the following:
195. Compensation is in addition to any other amount
An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.
36. The PAM document, by its very nature, is a collective agreement which is amended from time to time by the parties to this Council (the respondent and organised labour). The wording of section 195 is also clear that a compensation amount is not a substitute for any amount owed (the allowance) by the respondent to the applicants. I am as a result satisfied that the applicants are allowed, within the meaning of section 195 to make such a request.
37. Having considered the unreasonable and deliberate conduct of the respondent to refuse to start paying the allowance to the applicants since March 2021 when the omission was brought to its attention, I deem it to be in the interest of fairness to award compensation as a form of solatium under these circumstances. In so doing, I shall use the amount of the allowance as a yardstick together with the time it took the respondent to decide to implement the allowance to the applicants.
38. These applicants will only start receiving the allowance from March 2021 whereas their counterparts at neighbouring schools have been receiving it all along. This placed the applicants and their colleagues at other schools at an unequal footing (financially) as far as the payment of this allowance is concerned. I find it unfair that the respondent waited for the applicants to lodge a formal dispute with this Council first before it could decide to approve the payment of this allowance to them.
39. As compensation, I shall order that the same individual amount of R2 333.65 x 8 applicants = R18 669.20 for 8 months (March until October 2021) = R149 353.60 be paid to the applicants as solatium for the unfair labour practice which they have suffered at the hands of the respondent. I shall order the respondent to pay a further amount of R149 353.60 as compensation to the eight applicants.
40. In the premise, I make the following award:
AWARD
41. The failure of the respondent, Limpopo Department of Education, to pay to the eight applicants identified in paragraph 1 supra, their rural allowance between March 2021 and October 2021 amounts to an unfair labour practice relating to benefits.
42. The respondent is ordered to conclude incentive contracts with the applicants in accordance with Item E.1.2.1.1(c) of the PAM document by no later than 29 November 2021.
43. The respondent is further ordered to pay to the applicants an amount of R149 353.60 as an arrear amount in relation to the implementation of the rural allowance.
44. The respondent is further ordered to continue to pay the rural allowance to the applicants (individually) on a monthly basis commencing from November 2021 for as long as they meet the requirements outlined in Item E.1.2.1.1 of the PAM document.
45. The respondent is also ordered to pay to the applicants an amount of R149 353.60 in compensation as solatium for the unfair labour practice which they had to endure.
46. The payments in paragraphs 43 and 45 above must be made into the bank accounts to the individual applicants by no later than 29 November 2021.
This is done and dated on 18 October 2021 at Warrenton.
David Pietersen
ELRC Commissioner
MATHEBULA, JEREMIAH AND 7 OTHERS APPLICANTS
VS
SUPERINTENDENT-GENERAL:
LIMPOPO DEPARTMENT OF EDUCATION RESPONDENT
Case No: ELRC208-21/22LP
Dates: 27 August and 17 September 2021
Venue: Hybrid (virtual via Zoom)
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the arbitration matter between Mr Jeremiah Mathebula, SS Malatji, M Mtileni, T Ngobeni, ET Mkhari, TG Mokone, MJ Mkansi and AG Mashele (the applicants) versus the Limpopo Department of Education as the respondent. The arbitration hearing took place in hybrid form over Zoom on 27 August and 17 September 2021. The applicants were represented by Mrs Bianca Perry, an Attorney from Thomas & Swanepoel Attorneys from Tzaneen. The respondent was represented by Mr Mokgoba Matlou, its Labour Relations Officer.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 186(2)(a) of the Labour Relations Act (the Act) and the award is issued in terms of section 138(7) of the Act.
3. The proceedings were digitally recorded. The parties agreed and requested to conclude the arbitration matter through the submission of heads of arguments on 27 and 30 September and 04 October 2021, whereafter the award shall follow within 14 days.
ISSUE TO BE DECIDED
4. I am called upon to decide whether the applicants are entitled to be paid their outstanding rural allowance with retrospective effect from March 2021.
BACKGROUND TO THE DISPUTE
5. It is common cause that the applicants are employed by the respondent as educators and based at Mdingazi Secondary School situated in the Mopani District of the respondent. Following the respondent’s concession that the applicants do qualify to receive a remoteness incentive benefit named ‘rural allowance’, the dispute occurred after the respondent’s refusal to pay the benefit to the applicants with retrospective effect from 01 March 2021. The respondent apparently only wants to start paying the benefit to the applicants starting from September 2021.
6. Disgruntled with this decision of the respondent, the applicants lodged an unfair labour practice dispute with the Council on 07 June 2021. Conciliation took place on 24 June 2021 and the dispute remained unresolved, leading to the issuing of a certificate of non-resolution of the dispute. The applicants applied for arbitration on 16 August 2021, which subsequently took place on the dates mentioned in paragraphs 1 and 3 above.
7. It is common cause that the applicants qualify to receive the R2 333.65 rural allowance benefit (the allowance), of which the respondent has no problem to pay it but only from the date on which it approves the payment of the allowance. The applicants are of the view that the allowance became due to them in March 2021, thus their demand that the allowance be paid to them with retrospective effect from 01 March 2021 coupled with compensation for the unfair labour practice.
SURVEY OF EVIDENCE AND ARGUMENT
8. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions.
Documentary Evidence
9. The parties agreed to use the applicant’s bundle of evidence as documentary evidence for purposes of this arbitration, coupled with their heads of arguments.
Applicants’ Case
10. Mr Jeremiah Mathebula “Mr Mathebula”, one of the applicants (a Teacher), was sworn in and he testified as the only witness in this case. He testified that most of the teachers who are based at their neighbouring schools near Tzaneen has been receiving the allowance all along. Mr Mathebula stated that they are disgruntled that the respondent only wants to give them the benefit now without retrospective payments.
11. In cross-examination, Mr Mathebula stated that the allowance has been paid to the other school’s teachers for the past three years, such as those teachers who are based at Mookgo Secondary School.
12. The applicants’ representative submitted her heads of arguments and gave a brief background of the allowance and the policies which established it. She submitted that since it is common cause that the applicants do qualify for the allowance, the respondent has admitted to having committed an act of unfair labour practice and that the applicants want a retrospective payment of the allowance, incentive contracts coupled with compensation as solatium for the unfairness.
13. The representative submitted that the respondent has shown a tendency of only implementing the allowance if and when its educators challenge it through forums of this kinds. She submitted that though the PAM policy of the respondent does not particularly provide for retrospective payments, the applicants are at least entitled to a payment of the allowance as from the date on which the dispute arose (March 2021).
Respondent’s Case
14. The respondent’s representative confirmed the common cause issues in his answering papers and stated that the information of the applicants had to be verified first by the respondent after the dispute was lodged. He stated that the verification was completed on 25 August 2021 whereafter the approval for implementation was sought through the line functions of the respondent. The representative submitted that the respondent only approved the allowance for the applicants on 09 September 2021.
15. The representative relied on case law and stated that backpays are not statutorily prescribed. He stated that the dispute occurred in March 2021 and the applicant waited until June 2021 to lodge a dispute instead of seeking to conclude an incentive contract with the respondent. The representative submitted that the Government Gazette does not cater for retrospective payments of the allowance and that this allowance must only be paid from the date on which the respondent gave its approval.
Applicant’s Reply
16. The applicants’ representative submitted that the respondent is responsible for the delay of the dispute since it took it three months to do its verification and prejudicing the applicants in the process. She submitted that the case law relied upon by the respondent refers to unfair dismissal disputes where retrospective reinstatements were dealt with.
17. The representative submitted that the duty to ensure that the incentive contract is concluded rests with the respondent and not the applicants. She cited as an example, the neighbouring school (Mookgo) whose educators receives the allowance without having signed incentive contracts.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. This is an unfair labour practice dispute, benefits as provided for in section 186(2)(e) of the Act. The provision of the benefit (rural allowance) which was initially in dispute, became a common cause factor when the respondent admitted at conciliation that the applicants are indeed entitled to receive the benefit in accordance with Government Gazette No. 30678 dated 18 January 2008. The provision of this benefit was also incorporated into the respondent’s policy document, Personnel Administrative Measures (PAM) on 12 February 2016.
19. What led to the referral of this dispute to arbitration was when the parties disagreed on whether the allowance should be paid-out to the applicants with retrospective effect from 01 March 2021 when the dispute occurred or from 09 September 2021 which is the date on which the respondent approved the payment of the allowance of the eight applicants.
20. I have noticed that both parties did not adhere to the dates agreed upon as far as the submission of the papers are concerned. It started with the respondent who submitted its answering heads of arguments after the due date 30 September 2021 followed by the applicants who also missed their due date of 04 October 2021 in relation to their replication (based on the lateness of the respondent’s papers). Be that as it may, I have decided to condone both late submissions for the sake of resolving this dispute.
21. The applicants are of the view that the provision of the allowance has been in existence for quite some time and that the respondent should at least, pay them the allowance from the date on which the dispute occurred. The PAM policy of the respondent is silent on the retrospective payments of the allowance.
22. The respondent, on the other hand is of the opinion that it must only pay the allowance from the date on which it approved the payment of the allowance without retrospective effect. Not only is the PAM policy of the respondent also silent on the retrospective payment of the allowance, but so too did the respondent not provide any legal basis or policy document on why it cannot pay the allowance with retrospective effect from the date on which the dispute occurred.
23. The respondent argued that the applicants only lodged their dispute in June 2021 and should not request a retrospective payment of the allowance since it also only approved the payment thereof in September 2021. I find this argument of the respondent rather odd in that the respondent knew since 2008 that it has a responsibility to pay the allowance to the applicants and failed to do so. The applicants are in my view lenient towards the respondent for requesting a retrospective payment of this allowance since March 2021 and not since 2016, at least, when the allowance was inserted in the provisions of PAM.
24. The respondent was in my view, was best placed in March 2021, when the dispute occurred, to implement the allowance in the manner in which it is proposing to implement it now. Instead, it opted to drag out the resolution of this dispute until only now (in September 2021) when the matter was set down for arbitration.
25. Section 186(2)(a) of the LRA stipulates the following:
186 Meaning of dismissal and unfair labour practice
(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct of the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
[my emphasis added]
26. It is my finding that the respondent’s refusal to pay the allowance, which the applicants are legally entitled to, from the date on which the dispute occur, falls within the bracket of unfair labour practice relating to benefit.
RELIEF
27. The applicants requested the following as a form of relief:
27.1 That the respondent enters into incentive contracts with the applicants as required by Item E.1.2.1.1(c) of PAM by no later than a date determined by me,
27.2 Payment of the due and arrear incentive to the individual applicants calculated from March 2021, until the date when the award is rendered,
27.3 That the respondent must continue to pay the incentive to the individual applicants for as long as they qualify in terms of the provisions of PAM, irrespective whether the respondent have complied with subparagraph 27.1 above
27.4 Maximum compensation for the unfair labour practice committed by the respondent as a solatium to the applicants.
28. I shall now turn to the law to check on the legitimacy of the relief sought by the applicants. Section 193(4) of the Act provides the following:
193 Remedies for unfair dismissal and unfair labour practice
(4) An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
29. It is clear from subsection 193(4) of the Act that I am empowered to determine this dispute on terms which I deem reasonable including but not limited to compensation as a form of solatium for the unfair labour practice which the applicants had to endure. I shall now deal with these requested remedies separately under different headings.
(Subparagraph. 27.1 above) The conclusion of incentive contracts
30. Item E.1.2.1.1(c) of PAM provides the following:
E.1.2 Incentives to educators (Government Gazette 30678 dated 18 January 2008)
E.1.2.1 Measures relevant to the payment of incentives to educators
E.1.2.1.1 The purpose of the measures is to provide for the payments of incentives to academically and/or professionally qualified educators who qualify for incentives by meeting certain prescribed criteria.
(a) ………..
(b) ……….
(c) An educator who meets the criteria of the post eligible for incentives will be required
to enter into an “incentive contract” with the provincial department of education. The “incentive contract” will indicate the amount and kind of the incentive, the period for which the incentive is payable, specific conditions such as satisfactory performance, being available at school during working hours, being regular and punctual, being available to the school outside school hours for school functions as well as parent meetings.
31. It is clear from these provisions that a peremptory duty is placed on the respondent to require of the applicants to conclude an “incentive contract” with them. This relief which is sought by the applicants is reasonable and mandatory. I shall as a result order the respondent to comply with Item E.1.2.1.1(c) of the PAM document.
(Subparagraph 27.2 above) Payment of the due and arrears rural allowance from March 2021 to date of the Award
32. Having found in paragraph 26 above that the applicants are entitled to the allowance and that the respondent committed an act of unfair labour practice by not paying the allowance with retrospective effect from March 2021, I shall as a result order that the respondent must pay the allowance to the applicants with retrospective effect from March 2021 until October 2021 (which is the month in which my award is served on the parties. This shall be the individual amount of R2 333.65 x 8 applicants = R18 669.20 for 8 months (March until October 2021) = R149 353.60. I shall order the respondent to pay an amount of R149 353.60 as arrears amount to the eight applicants.
(Subparagraph 27.3) The respondent must continue to pay the allowance to the applicants as long as they do qualify
33. Since it is prevalent that the rural allowance is attached to the posts occupied by the eight applicants, the conditions outlined in Item E.1.2.1.1 of PAM are applicable. I shall as a result order that the applicants must continue to receive the allowance for as long as they meet the requirements outlined in Item E.1.2.1.1 of the PAM document.
(Subparagraph 27.4) Maximum compensation for the unfair labour practice endured by the applicants as solatium.
34. In addition to the above relieves sought by the applicants, they requested compensation as an additional relief for the unfair conduct of the respondent. Let me once again consult the Act in this regard.
35. Section 195 of the Act provides the following:
195. Compensation is in addition to any other amount
An order or award of compensation made in terms of this Chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.
36. The PAM document, by its very nature, is a collective agreement which is amended from time to time by the parties to this Council (the respondent and organised labour). The wording of section 195 is also clear that a compensation amount is not a substitute for any amount owed (the allowance) by the respondent to the applicants. I am as a result satisfied that the applicants are allowed, within the meaning of section 195 to make such a request.
37. Having considered the unreasonable and deliberate conduct of the respondent to refuse to start paying the allowance to the applicants since March 2021 when the omission was brought to its attention, I deem it to be in the interest of fairness to award compensation as a form of solatium under these circumstances. In so doing, I shall use the amount of the allowance as a yardstick together with the time it took the respondent to decide to implement the allowance to the applicants.
38. These applicants will only start receiving the allowance from March 2021 whereas their counterparts at neighbouring schools have been receiving it all along. This placed the applicants and their colleagues at other schools at an unequal footing (financially) as far as the payment of this allowance is concerned. I find it unfair that the respondent waited for the applicants to lodge a formal dispute with this Council first before it could decide to approve the payment of this allowance to them.
39. As compensation, I shall order that the same individual amount of R2 333.65 x 8 applicants = R18 669.20 for 8 months (March until October 2021) = R149 353.60 be paid to the applicants as solatium for the unfair labour practice which they have suffered at the hands of the respondent. I shall order the respondent to pay a further amount of R149 353.60 as compensation to the eight applicants.
40. In the premise, I make the following award:
AWARD
41. The failure of the respondent, Limpopo Department of Education, to pay to the eight applicants identified in paragraph 1 supra, their rural allowance between March 2021 and October 2021 amounts to an unfair labour practice relating to benefits.
42. The respondent is ordered to conclude incentive contracts with the applicants in accordance with Item E.1.2.1.1(c) of the PAM document by no later than 29 November 2021.
43. The respondent is further ordered to pay to the applicants an amount of R149 353.60 as an arrear amount in relation to the implementation of the rural allowance.
44. The respondent is further ordered to continue to pay the rural allowance to the applicants (individually) on a monthly basis commencing from November 2021 for as long as they meet the requirements outlined in Item E.1.2.1.1 of the PAM document.
45. The respondent is also ordered to pay to the applicants an amount of R149 353.60 in compensation as solatium for the unfair labour practice which they had to endure.
46. The payments in paragraphs 43 and 45 above must be made into the bank accounts to the individual applicants by no later than 29 November 2021.
This is done and dated on 18 October 2021 at Warrenton.
David Pietersen
ELRC Commissioner