ELRC644-20/21 EC
Text
ELRC260-21/22EC
Award Date:
05 December 2021
Case Number: ELRC260-21/22EC
Commissioner: Hadley Saayman
Date: 05 December 2021
In the ARBITRATION between
(Union/Applicant)
SAOU obo Rex, D
And
The HOD (SG)- Eastern Cape Department of Education: 1st Respondent
Department of Basic Education –Eastern Cape : 2nd Respondent
(Respondent)
Applicant’s representative: Ms Venita Van Wyk
Applicant’s address: 21 Bantom Street
Cotswold
Port Elizabeth
6025
Telephone: 041-3640500
Telefax: 041-3640510
E-mail: saouok@saou.co.za/ venita@saou.co.za
Respondent’s representative: Mr E. Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Tanduxolo.dabi@edu.ecprov.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA) set down for a virtual Arbitration on 19 November 2021.
2. The Applicant was represented by Ms V Van Wyk, an Union Official.
3. The Respondents were represented by Mr E Hector, a Labour Relations Officer.
ISSUES TO BE DECIDED
4. I must decide whether the respondents committed an unfair labour practice in terms of section 186(2)(a) by failing to pay the applicant her outstanding salary.
SURVEY OF EVIDENCE
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The applicant, Mrs Denise Rex was appointed as Grade R Practitioner at Elmor Primary School in
Willowmore from 20 May 2018 receiving a stipend of R8258.00 monthly (Applicant’s bundle pg 8).
7. During 2020 the Applicant applied for the post of Grade R Educator, as advertised in Closed Grade-R Bulletin for Post Level 1 educators, Vol 3 of 2020 – 216 (applicant’s bundle pg5).
8. The applicant went for an interview and received an offer of appointment on 07 September 2020. She then duly and assumed duties. (Applicant’s bundle page 7). Her salary notch was indicated as R211 731.00 (applicant’s bundle pg9).
9. The applicant received her first salary on 25/01/2021.
10. An amount of R43452.13 was paid into her ABSA account (Applicant’s bundle pg 10). This was supposedly her outstanding backdated salary for the past 5 months.
Gross monthly Nett Monthly
September 2020 17 644.25 14 484.04
October 2020 17 644.25 14 484.04
November 20202 17 644.25 14 484.04 14 484.04
December 2020 17 644.25 14 484.04 14 484.04
January 2021 17 644.25 14 484.04 14 484.04
Total 88 221.25 72 420.20 43 452.12
11. In September and October 2020, the grade R stipend of R 8258 was still paid to the Applicant, which was later claimed from Mrs Rex as an overpayment. The employer claims an amount of R13 329.57. was overpaid to the applicant.
12. The applicant agreed to pay back the aforesaid amount and she gave the Employer permission to
deduct a monthly instalment of R 740.53 from her salary with effect July 2021 until the said amount
is paid in full.
13. However, the Employer never mentioned to the Applicant when they will pay her the
outstanding salaries and she even proposed that they deduct the overpayment
from the money they owed her.
14. No response from the district official regarding the outstanding salary, but letters of demand with
regards to the overpayment were directed to the applicant.
15. The Applicant claims that Employer still needs to her pay her two months’ salary in the amount of
R 28 968.08.
RESPONDENT’S EVIDENCE
16. The Employer submitted that the Applicant was indeed appointed as a Grade R Educator during September 2020.
17. The Employer submitted that the Applicant received back pay in respect of her appointment as Grade R Educator.
18. The Employer further submitted that the Applicant’s claim has been investigated by the Human Resource Department at District level and conceded that the two months’ salary are outstanding.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. It was common cause that the Applicant was duly appointed as a grade R Educator during
September 2020 with a basic (gross) salary of R 17 644.25 (Annual salary R 211 731.00).
20. It was common cause that the Applicant received a first salary payment on 25 January 2021, a
nett amount of R 43 452.13 (gross of R 52 932.75).
21. It was common cause that the aforesaid amount was in respect of November 2020,
December 2020 and January 2021.
22. It was common cause that the Applicant continues to receive the stipend of R 8 258.00 (nett
R 6 988.00) for September 2020 and October 2020 and that the “over payment” arrangement
for monthly deductions from Applicant’s salary, was agreed between the parties.
23. It was further common cause that theApplicant did not receive her full or correct salary for the
months September 2020 and October 2020, which amounts to R 35 288.50 [R 17 644.25 X 2].
24. The Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2013) 34 ILJ 1120 (LAC) held that the distinction drawn by courts between remuneration and benefits is artificial and unsustainable. It also held that the definition of benefits is not limited to entitlements arising ex contractu or ex lege and may include advantages or privileges granted in terms of policy or practice subject to employer's discretion:
“In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment 'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion”
25. What the Apollo Tyres case in essence means is that in order for a dispute to qualify as an unfair labour practice dispute relating to benefits that can be arbitrated in terms of section 186(2) the following requirements must be met:
• There must be an existing practice or policy in the workplace that gives the employer a discretion to grant certain benefits; and
• A demand must be made by the employee that his employer must grant those benefits to him/her; and
• The employee must claim that his/her demands should be met because the employer has acted unfairly in exercising his discretion and refusing the benefits,
26. In Apollo Tyres the Court said the following in relation to fairness:
"... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended."
27. Considering all the above, the Applicant, Denise Rex (persal no.55884784) is entitled to her outstanding salary for the periods September 2020 and October 2020 and is entitled to an amount of R 35 288,50 plus interest at 10.25% per annum from 1 October 2020 until date of payment.
AWARD
28. The Respondent, Department of Education-EC is ordered to pay the Applicant, Denise Rex
persal no. 55884784) her outstanding salary for the periods September 2020 and October 2020 and is entitled to an amount of R35 288,50 plus interest at 10.25% per annum from 1 October 2020 until date of payment.
29. The above-mentioned amount must be paid by the Respondents to the Applicant by no later than 20 January 2022 and would be subjected to normal statutory deductions.
30. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment of
R 35 288,50, plus interest at 10.25% per annum from 1 October 2020 until date of payment,
is effected to the Applicant, Denise Rex (persal no.55884784).
Signature:
Commissioner: Hadley Saayman
Sector: Education
Commissioner: Hadley Saayman
Date: 05 December 2021
In the ARBITRATION between
(Union/Applicant)
SAOU obo Rex, D
And
The HOD (SG)- Eastern Cape Department of Education: 1st Respondent
Department of Basic Education –Eastern Cape : 2nd Respondent
(Respondent)
Applicant’s representative: Ms Venita Van Wyk
Applicant’s address: 21 Bantom Street
Cotswold
Port Elizabeth
6025
Telephone: 041-3640500
Telefax: 041-3640510
E-mail: saouok@saou.co.za/ venita@saou.co.za
Respondent’s representative: Mr E. Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Tanduxolo.dabi@edu.ecprov.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the ELRC in terms Section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA) set down for a virtual Arbitration on 19 November 2021.
2. The Applicant was represented by Ms V Van Wyk, an Union Official.
3. The Respondents were represented by Mr E Hector, a Labour Relations Officer.
ISSUES TO BE DECIDED
4. I must decide whether the respondents committed an unfair labour practice in terms of section 186(2)(a) by failing to pay the applicant her outstanding salary.
SURVEY OF EVIDENCE
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Act,
relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The applicant, Mrs Denise Rex was appointed as Grade R Practitioner at Elmor Primary School in
Willowmore from 20 May 2018 receiving a stipend of R8258.00 monthly (Applicant’s bundle pg 8).
7. During 2020 the Applicant applied for the post of Grade R Educator, as advertised in Closed Grade-R Bulletin for Post Level 1 educators, Vol 3 of 2020 – 216 (applicant’s bundle pg5).
8. The applicant went for an interview and received an offer of appointment on 07 September 2020. She then duly and assumed duties. (Applicant’s bundle page 7). Her salary notch was indicated as R211 731.00 (applicant’s bundle pg9).
9. The applicant received her first salary on 25/01/2021.
10. An amount of R43452.13 was paid into her ABSA account (Applicant’s bundle pg 10). This was supposedly her outstanding backdated salary for the past 5 months.
Gross monthly Nett Monthly
September 2020 17 644.25 14 484.04
October 2020 17 644.25 14 484.04
November 20202 17 644.25 14 484.04 14 484.04
December 2020 17 644.25 14 484.04 14 484.04
January 2021 17 644.25 14 484.04 14 484.04
Total 88 221.25 72 420.20 43 452.12
11. In September and October 2020, the grade R stipend of R 8258 was still paid to the Applicant, which was later claimed from Mrs Rex as an overpayment. The employer claims an amount of R13 329.57. was overpaid to the applicant.
12. The applicant agreed to pay back the aforesaid amount and she gave the Employer permission to
deduct a monthly instalment of R 740.53 from her salary with effect July 2021 until the said amount
is paid in full.
13. However, the Employer never mentioned to the Applicant when they will pay her the
outstanding salaries and she even proposed that they deduct the overpayment
from the money they owed her.
14. No response from the district official regarding the outstanding salary, but letters of demand with
regards to the overpayment were directed to the applicant.
15. The Applicant claims that Employer still needs to her pay her two months’ salary in the amount of
R 28 968.08.
RESPONDENT’S EVIDENCE
16. The Employer submitted that the Applicant was indeed appointed as a Grade R Educator during September 2020.
17. The Employer submitted that the Applicant received back pay in respect of her appointment as Grade R Educator.
18. The Employer further submitted that the Applicant’s claim has been investigated by the Human Resource Department at District level and conceded that the two months’ salary are outstanding.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. It was common cause that the Applicant was duly appointed as a grade R Educator during
September 2020 with a basic (gross) salary of R 17 644.25 (Annual salary R 211 731.00).
20. It was common cause that the Applicant received a first salary payment on 25 January 2021, a
nett amount of R 43 452.13 (gross of R 52 932.75).
21. It was common cause that the aforesaid amount was in respect of November 2020,
December 2020 and January 2021.
22. It was common cause that the Applicant continues to receive the stipend of R 8 258.00 (nett
R 6 988.00) for September 2020 and October 2020 and that the “over payment” arrangement
for monthly deductions from Applicant’s salary, was agreed between the parties.
23. It was further common cause that theApplicant did not receive her full or correct salary for the
months September 2020 and October 2020, which amounts to R 35 288.50 [R 17 644.25 X 2].
24. The Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2013) 34 ILJ 1120 (LAC) held that the distinction drawn by courts between remuneration and benefits is artificial and unsustainable. It also held that the definition of benefits is not limited to entitlements arising ex contractu or ex lege and may include advantages or privileges granted in terms of policy or practice subject to employer's discretion:
“In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment 'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion”
25. What the Apollo Tyres case in essence means is that in order for a dispute to qualify as an unfair labour practice dispute relating to benefits that can be arbitrated in terms of section 186(2) the following requirements must be met:
• There must be an existing practice or policy in the workplace that gives the employer a discretion to grant certain benefits; and
• A demand must be made by the employee that his employer must grant those benefits to him/her; and
• The employee must claim that his/her demands should be met because the employer has acted unfairly in exercising his discretion and refusing the benefits,
26. In Apollo Tyres the Court said the following in relation to fairness:
"... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended."
27. Considering all the above, the Applicant, Denise Rex (persal no.55884784) is entitled to her outstanding salary for the periods September 2020 and October 2020 and is entitled to an amount of R 35 288,50 plus interest at 10.25% per annum from 1 October 2020 until date of payment.
AWARD
28. The Respondent, Department of Education-EC is ordered to pay the Applicant, Denise Rex
persal no. 55884784) her outstanding salary for the periods September 2020 and October 2020 and is entitled to an amount of R35 288,50 plus interest at 10.25% per annum from 1 October 2020 until date of payment.
29. The above-mentioned amount must be paid by the Respondents to the Applicant by no later than 20 January 2022 and would be subjected to normal statutory deductions.
30. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment of
R 35 288,50, plus interest at 10.25% per annum from 1 October 2020 until date of payment,
is effected to the Applicant, Denise Rex (persal no.55884784).
Signature:
Commissioner: Hadley Saayman
Sector: Education