ELRC644-20/21 EC
Text
PSES411-21/22 KZN
Award Date:
23 December 2021
Commissioner: Karen Charles
Case No.: PSES411-21/22 KZN
Date of Award: 23 DECEMBER 2021
In the ARBITRATION between:
EMMANUEL MUNYARADZI DODZO Applicant
And
DEPARMENT OF EDUCATION (KWAZULU NATAL) Respondent
Union/Applicant’s representative: NONE
Union/Applicant’s address: P O Box 38
Creighton 3263
Email: zodozoem@gmail.com
Respondent’s representative: NONE
Email: merisha.naidoo@doe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This arbitration was heard on 13 December 2021 online.
2. The applicant represented himself. There was no appearance by the respondent, Department of Education: Kwazulu Natal despite having being notified of the matter.
3. On the day of the arbitration, the case management officer contacted the respondent (various officials) who all informed him that they would log on in due course.
4. I waited an hour before proceeding with the arbitration in its absence (I exercised the discretion afforded me in terms of section 138 of the Labour Relations Act No 66 of 1995, as amended).
ISSUE TO BE DECIDED
5. Was the applicant entitled to his backpay and outstanding remuneration from his employer, the respondent?
6. The applicant had referred the matter on the 25 August 2021 and the matter remained unresolved at the conciliation on the 17 September 2021. The matter was then referred to arbitration on the same day and is now before me.
APPLICANT’S VERSION
7. The applicant testified that he had been employed as an educator since 21 February 2010. He had earned R16 709, 00 per month. He was owed backpay in the amount of R206 622, 57 as well as his outstanding salary of R33 418, 00.
8. At all times, the respondent conceded that it owed him the back pay in the amount of R206 622, 57 which it had continuously paid into the incorrect bank account.
9. He provided the respondent with his new bank details in September 2020 and February 2021 and despite various pleas for payment, the respondent failed to do so.
10. He had resigned in October 2021 and was not paid September and October salaries.
11. He is entitled to these monies because he had tendered his services and had not been paid for same.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
12. In casu, the respondent did not attend and thus did not offer up any evidence to rebut the testimony of the applicant. All that remained was the testimony of the applicant who confirmed that he worked for the respondent, he tendered services and he was entitled to his salary.
13. In the absence of any evidence to the contrary, and any glaring inconsistencies in the applicant’s version, I must accept his narrative as plausible and more probable than the absence of a version from the respondent.
14. The applicant has lodged an unfair labour practice dispute and the view of Protekon (Pty) Ltd v CCMA and Others (LC) (2005) 7 BLLR 703 (LC) has been adopted, correctly so, in later cases and finally confirmed in Apollo Tyres v CCMA (2013) 34 ILJ 1120 (LAC), namely that a wider definition of benefits must be construed.
15. The learned judge pronounced that in the instance where an employer fails to comply with its obligations in terms of a contract, such failure may fall to be scrutinized under the jurisdiction conferred by section 186(2)(a) of the Act.
16. In casu, the applicant tendered services to the respondent and expected to be remunerated for such.
17. In essence, the court criticized the distinction between remuneration (salaries and wages) and benefits as being “artificial and unsustainable”. The definition of remuneration must be extended to include all the extras and/ benefits. The court defined remuneration as “ any payment in money or in kind made or owing to any person in return for that person working for any other person including the State”.
18. Accordingly, I find that the respondent had failed in its obligations to the applicant, namely to pay him for services rendered and to therefore ensure fair employment practices within its workplace. And that this conduct or omission on the respondent’s part is indeed an unfair labour practice.
19. It is just and equitable that the following award be made:
AWARD
20. The respondent’s conduct is unfair as defined by section 186(2)(a) of the Labour Relations Act No 66 of 1995, as amended;
21. The respondent, Department of Education: Kwazulu Natal is ordered to pay to the applicant, Emmanuel Munyaradzi Dodzo, within 10 days of service of this award on it an amount of R240 040, 57, being his outstanding remuneration;
22. There is no order as to costs.
KAREN CHARLES
PANELIST
Case No.: PSES411-21/22 KZN
Date of Award: 23 DECEMBER 2021
In the ARBITRATION between:
EMMANUEL MUNYARADZI DODZO Applicant
And
DEPARMENT OF EDUCATION (KWAZULU NATAL) Respondent
Union/Applicant’s representative: NONE
Union/Applicant’s address: P O Box 38
Creighton 3263
Email: zodozoem@gmail.com
Respondent’s representative: NONE
Email: merisha.naidoo@doe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
1. This arbitration was heard on 13 December 2021 online.
2. The applicant represented himself. There was no appearance by the respondent, Department of Education: Kwazulu Natal despite having being notified of the matter.
3. On the day of the arbitration, the case management officer contacted the respondent (various officials) who all informed him that they would log on in due course.
4. I waited an hour before proceeding with the arbitration in its absence (I exercised the discretion afforded me in terms of section 138 of the Labour Relations Act No 66 of 1995, as amended).
ISSUE TO BE DECIDED
5. Was the applicant entitled to his backpay and outstanding remuneration from his employer, the respondent?
6. The applicant had referred the matter on the 25 August 2021 and the matter remained unresolved at the conciliation on the 17 September 2021. The matter was then referred to arbitration on the same day and is now before me.
APPLICANT’S VERSION
7. The applicant testified that he had been employed as an educator since 21 February 2010. He had earned R16 709, 00 per month. He was owed backpay in the amount of R206 622, 57 as well as his outstanding salary of R33 418, 00.
8. At all times, the respondent conceded that it owed him the back pay in the amount of R206 622, 57 which it had continuously paid into the incorrect bank account.
9. He provided the respondent with his new bank details in September 2020 and February 2021 and despite various pleas for payment, the respondent failed to do so.
10. He had resigned in October 2021 and was not paid September and October salaries.
11. He is entitled to these monies because he had tendered his services and had not been paid for same.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
12. In casu, the respondent did not attend and thus did not offer up any evidence to rebut the testimony of the applicant. All that remained was the testimony of the applicant who confirmed that he worked for the respondent, he tendered services and he was entitled to his salary.
13. In the absence of any evidence to the contrary, and any glaring inconsistencies in the applicant’s version, I must accept his narrative as plausible and more probable than the absence of a version from the respondent.
14. The applicant has lodged an unfair labour practice dispute and the view of Protekon (Pty) Ltd v CCMA and Others (LC) (2005) 7 BLLR 703 (LC) has been adopted, correctly so, in later cases and finally confirmed in Apollo Tyres v CCMA (2013) 34 ILJ 1120 (LAC), namely that a wider definition of benefits must be construed.
15. The learned judge pronounced that in the instance where an employer fails to comply with its obligations in terms of a contract, such failure may fall to be scrutinized under the jurisdiction conferred by section 186(2)(a) of the Act.
16. In casu, the applicant tendered services to the respondent and expected to be remunerated for such.
17. In essence, the court criticized the distinction between remuneration (salaries and wages) and benefits as being “artificial and unsustainable”. The definition of remuneration must be extended to include all the extras and/ benefits. The court defined remuneration as “ any payment in money or in kind made or owing to any person in return for that person working for any other person including the State”.
18. Accordingly, I find that the respondent had failed in its obligations to the applicant, namely to pay him for services rendered and to therefore ensure fair employment practices within its workplace. And that this conduct or omission on the respondent’s part is indeed an unfair labour practice.
19. It is just and equitable that the following award be made:
AWARD
20. The respondent’s conduct is unfair as defined by section 186(2)(a) of the Labour Relations Act No 66 of 1995, as amended;
21. The respondent, Department of Education: Kwazulu Natal is ordered to pay to the applicant, Emmanuel Munyaradzi Dodzo, within 10 days of service of this award on it an amount of R240 040, 57, being his outstanding remuneration;
22. There is no order as to costs.
KAREN CHARLES
PANELIST