ELRC644-20/21 EC
Text
ELRC712-20/21 EC
Award Date:
04 February 2022
Case Number: ELRC712-20/21 EC
Panelists: Malusi Mbuli
Date of Award: 04-02-2022
In the ARBITRATION between
PIWE MCDONALD DYAFTA
(Applicant)
And
DEPARTMENT OF BASIC EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing virtually at 09:00 and was finalized on the 18th of January 2022.
2. The applicant, Mr. Phiwe Dyafta attended the hearing remotely and was represented by Adv. Rwentela a legal representative of the applicant. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. Walter Hena an official of the respondent.
3. The matter proceeded on a number of days and was finalized on the 18th of January 2022 and the parties agreed to file their closing arguments not later than the 26th of January 2022.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicant his benefits and if so, I must determine the appropriate remedy.
EVIDENCE ON COMMON CAUSE FACTS
5. The facts in this dispute were almost common except for few areas that needed clarity from the witnesses and for this reason it became necessary to lead evidence and each party called 1 witness to assist to advance their respective cases.
6. The arbitration hearing was recorded on zoom platform and the zoom record and documents submitted by the parties will form the record of this hearing. The parties had earlier held a pre - arbitration hearing and concluded and signed a pre – arbitration minute on the 16th of August 2021.
7. The parties have agreed upon was that the Department of Basic Education is the true employer of the applicant and that the applicant was employed by the respondent on the 01st of January 1987
SURVEY OF EVIDENCE
8. The applicants representative called the applicant Mr. Piwe McDonald Dyafta as the only witness and testified as follows:
- He was employed by the Department of Basic Education as a Principal of John Knox Bokwe Technical College in Mdantsane on the 01st of January 1987. After there was proclamation by President for Higher Education he did not emerge as the Principal of the new institution and the amalgamation in 2005.
- He was placed as Deputy Principal (Post level 4) of the new institution. In 2005 he was translated to Deputy Chief Education Specialist (DCES) which was a promotion even though it was incorrect. He became ill and could not attend work and he kept on submitting the medical certificates.
- He was later terminated on the 01st of April 2010 but did not receive that communication until 2017 and that a letter was written to him on the 12th of February 2008 that the HOD must approve the ill health application and must report and submit documentation otherwise there may be incapacity route that can be followed. He averred that he remained sick and the employer knew about that but confirmed or did not dispute that he did not submit the medical certificates after 2010 and he confirmed that there was no incapacity hearing.
- He applied for medical boarding, application was subjected to second opinion and it was declined around 2008 and the Department froze his salary because there was a report from the new institution, Buffalo City College that his whereabouts were not known. He only continued to submit medical certificates until 2010 and there was a new development where college lecturers were transferred to Higher Education.
- Mr. Dyafta again applied for medical boarding and had proposed alternatives like retrenchment and early retirement and those alternatives were not considered and there was no response. After his salary was frozen they wrote to the Department of Basic Education about unpaid salary and his application for ill-health and still there was no response.
- Around 2017 he approached the legislature for assistance and at that point he had not yet been discharged by the Department of Basic Education and this was about 10 years later. He stated that he did not choose to be transferred to Higher Education. He stated again that the employer was aware that he was sick but could not prove his sickness between 2010 and to 2017 and no documentary evidence of his whereabouts until April 2017 and since the transition he never reported for duty with the Department of Higher Education.
- He confirmed that the employer and employee contributions were supposed to be paid to Government Employee Pension Fund (GEPF) and the Department of Basic Education proposed to pay all the contributions and the Government Employee Pension Fund (GEPF) paid the employee contribution.
- He stated that an amount of R 457 780, 50 was paid to and received by the in 2020 and was backdated to 2010 and he stated that the salary that was paid to him was low and confirmed that an amount of R54 569, 60 was paid by the employer received. He explained that he his life has been damaged immensely and has lost everything after he has worked and served the department for a long time. At cross examination he confirmed that his calculations were based on a wrong notch.
- He averred that he has always wanted to resolve the issue amicable and has always been an employee of the department and he did not abscond and was never discharged. He stated that he signed the acknowledgment of debt because he wanted his pension money to be released and disputed that he agreed that he was supposed to be paid until 2010. The respondent then closed their case.
9. The employer then called their first and last witness Mr. Qaphela Luthuli who testified as follows:
- He testified that he works for the employer as an Acting Chief Director – Human Resources and at the time of the incident was Director – Human Resources in 2017 and that Mr. Piwe Dyafta was an employee of the Department of Basic Education at the time when Colleges were under the Department of Basic Education before merger in December 2005 then after he did not emerge as a Principal.
- He was then placed in the position of the Deputy Principal of the newly established entity and after that the applicant kept on submitting medical certificates until 2008 and the later applied medical boarding went for 2nd opinion and his application was declined and was communicated to the Mr. Dyafta.
- He stated that Mr. Dyafta submitted a letter of sickness on the 26th of February 2008 and he is now still sick and that he didn’t see the correspondence about the incapacity hearing and in 2008 the applicants salary was frozen until the end of March 2010.
- He averred that the applicant was transferred to the Department of Higher Education and the applicant did not submit medical certificates after 2010 and was transferred to the Department of Higher Education in 2015 and the incapacity leave application was made on the 15th May 2015 and 20th November 2015.
- He stated that the applicant was not transferred back to the Department of Basic Education was and at that point he was still at the Department of Higher Education and he conceded that the applicant accounted for the period 2008 – March 2010. He further stated that because the applicant’s salary was not paid for the period there was short fall of the pension fund.
- He testified that it should be noted that Mr. Dyafta benefited from pay progression and this is reflected on his service record persal printout even though he had no contract for Integrated Quality Management System (IQMS) which is performance management because he did not render services for the employer.
- The exit notch of Mr. Dyafta from the Department of Basic Education is R261 192.00 calculated as at 2010 and GEPF have their own formula. There was a meeting that was held at the legislature, in terms of item 3 of the Legislature minutes dated 18 April 2017.
- It is clearly stated that the decision of the meeting is that Mr. Dyafta be paid his outstanding salary for the period December 2008 to April 2010 and the Department also processed all the pension benefits that Mr. Dyafta is entitled to according to the decision made at the Legislature. He averred that the applicant could account for his absence from the 01st of April 2010 – April 2017 and the date of termination is the 01st of April 2010.
- He referred to page 13 of the Internal Memorandum dated 30 September 2008, an update from the office of the Superintendent-General to the MEC for education regarding this matter of Mr. Dyafta is the indication that the issue was being attended to. He averred that the date of termination of the applicant is informed by the decision made during the meeting held at the Legislature and the minutes are dated 18 April 2017 and was discharged on account of continued ill-health applied for by Mr. Dyafta.
- He averred that he do understand why Mr. Dyafta expected normal retirement although he applied for medical boarding and at no stage this was communicated to the employer that he is no longer interested in medical boarding but instead he would like to exit through normal retirement. He averred that the employer Mr. Dyafta exited with a correct salary notch and that the GEPF has its own formula for the calculation of pension benefits due to an employee.
- He stated that the applicant was paid his salary between 2008 – 2010 in the amount of R182 452, 00 and he detailed the payments that were paid to the applicant as follows. He agreed that they did not advise the applicant that he was technically reinstated but further agreed that this was part of the agreement to resolve the matter amicable so that the applicant can be paid and the payments were made in terms of the agreement.
- He further agreed that the agreement was in a form of a resolution of the meeting where the applicant was present and accepted the outcomes of the meeting and that the applicant could have objected but he knew that he could not account for his whereabouts until 2010. At the time of the meeting the applicant was no longer employment relationship.
- He averred that all the dues were paid to Mr. Dyafta and the first amount was R 102 818.16 for the period 01 December 2008 to July 2009 and then an amount of R 166 010.12 was paid to Mr. Dyafta for arrear salaries and the breakdown.
- An amount of R 77 059.00
- Less R 29 483.24
- Net Salary R 47 575.76
10. Then there were salaries paid to Mr. Dyafta and received by him then later reversed on the persal system.
11. Pay date is 15 October 2017.
- Paid R 57 847.03
- Less R 9 571.35
- Net Salary R 48 275.68
12. The pay date is 15 September 2017.
- Paid R 38 529.50
- Less R 9 579.85
- Net Salary R 28 949.65
13. The pay date is 15 August 2017.
- Paid R 38 529.50
- Less R 9 561.40
- Net Salary R 28 968.10
14. The pay date is 14 July 2017.
- Paid R 38 529.50
- Less R 9 563.90
- Net Salary R 28 965.60
15. The pay date is 15 June 2017.
- Paid R 38 529.50
- Less R 9 509.91
- Net Salary R 29 019.59
ANALYSIS OF EVIDENCE AND ARGUMENT
16. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 185 (2) provides that:
- no employee must be subjected to an unfair labour practice. The applicants feel that the employer has committed an unfair labour practice by failing to pay the applicant benefits and allowances.
17. As indicated above in the topic dealing with common cause facts the parties are not in dispute on whether the respondent has paid all the applicants benefits due to him. The only issue that remains to be decided is whether all the benefits that are due were paid. The applicant’s representative argued that the applicant never left the employ of the respondent and that the respondent was responsible for the payment of all outstanding money and benefits due to the applicant.
18. The applicant’s representative further argued that the applicant was never transferred to the Department of Higher Education and Training (DHET) and this is not disputed employer. It is also clear form the evidence of the employer witness and the employee applicant that the applicant was not asked to make a choice between DHET and the Respondent when there was amalgamation.
19. But it is important to note that this is the process that apply to all in the category of the applicant and the employer cannot be penalized because the applicant was sick because the sickness of the applicant was not the employers making. This transfer was therefore not unilateral transfer as argued by the applicant’s representative and this was therefore not an unlawful and unfair act by the respondent.
20. The applicant could not account for the period after 2010 and even though the applicant was sick he was sick for a number of days and there was a duty on the part of the applicant to account for illness and the respondent has already paid the applicant for the period he has accounted for. Even if the was not discharged or the respondent knew he was sick it cannot be accepted that an employee don’t account for absence.
21. The applicant therefore cannot be expected to benefit or draw salary from the employer when he has worked and accounted for the absence because if this does not happen it amounts to abscondment or a discharge meaning the applicant terminated his services. There was therefore nothing wrong or unlawful about the act of the respondent stopping the salary of the employee whose whereabouts are unknown.
22. Even if the applicant had applied for ill-health retirement and there was no answer he still has to account because even that application must convince the decision maker that the applicant is incapacitated or ill – health affecting him. Even if the employer was aware of the applicants address and contact details the applicant has a duty to account. The other factor is that there was amalgamation or merger which led to the other employees transferred to the DHET and the applicant was not there and did not participate.
23. The other issue is that the applicant agreed in a meeting with the legislature that the termination date is the 31st of March 2010. In this regard the applicant chose to approach the legislature for relief and everyone engaged genuinely to resolve the matter and there was a resolution on the matter which binds the applicant.
24. The applicant bare onus to demonstrate, on a balance of probabilities that the respondent committed ULP, and that the applicant suffered prejudice as a result. It is my finding that the applicant was not able to discharge this onus. Even if the applicant suffered financial loss, his illness and failure to account cannot be attributed to the employer. There is therefore no salary or benefits due to the applicant as a result of the employers conduct and this matter does not attract any cost order.
25. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the evidence that has been adduced in the arbitration hearing that the hostel allowance claimed by the applicants is due and payable to them.
26. The respondent has not committed an unfair labour practice by failing to pay the applicants benefits / salary / allowances and as such this did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
27. In the circumstances I make the following award.
AWARD
28. The applicant’s application is dismissed for the reasons provided above and that the applicant is not therefore not entitled to any relief.
29. As indicated above I do not make any order as to costs.
Signature:
Commissioner: Malusi Mbuli
Panelists: Malusi Mbuli
Date of Award: 04-02-2022
In the ARBITRATION between
PIWE MCDONALD DYAFTA
(Applicant)
And
DEPARTMENT OF BASIC EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing virtually at 09:00 and was finalized on the 18th of January 2022.
2. The applicant, Mr. Phiwe Dyafta attended the hearing remotely and was represented by Adv. Rwentela a legal representative of the applicant. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. Walter Hena an official of the respondent.
3. The matter proceeded on a number of days and was finalized on the 18th of January 2022 and the parties agreed to file their closing arguments not later than the 26th of January 2022.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicant his benefits and if so, I must determine the appropriate remedy.
EVIDENCE ON COMMON CAUSE FACTS
5. The facts in this dispute were almost common except for few areas that needed clarity from the witnesses and for this reason it became necessary to lead evidence and each party called 1 witness to assist to advance their respective cases.
6. The arbitration hearing was recorded on zoom platform and the zoom record and documents submitted by the parties will form the record of this hearing. The parties had earlier held a pre - arbitration hearing and concluded and signed a pre – arbitration minute on the 16th of August 2021.
7. The parties have agreed upon was that the Department of Basic Education is the true employer of the applicant and that the applicant was employed by the respondent on the 01st of January 1987
SURVEY OF EVIDENCE
8. The applicants representative called the applicant Mr. Piwe McDonald Dyafta as the only witness and testified as follows:
- He was employed by the Department of Basic Education as a Principal of John Knox Bokwe Technical College in Mdantsane on the 01st of January 1987. After there was proclamation by President for Higher Education he did not emerge as the Principal of the new institution and the amalgamation in 2005.
- He was placed as Deputy Principal (Post level 4) of the new institution. In 2005 he was translated to Deputy Chief Education Specialist (DCES) which was a promotion even though it was incorrect. He became ill and could not attend work and he kept on submitting the medical certificates.
- He was later terminated on the 01st of April 2010 but did not receive that communication until 2017 and that a letter was written to him on the 12th of February 2008 that the HOD must approve the ill health application and must report and submit documentation otherwise there may be incapacity route that can be followed. He averred that he remained sick and the employer knew about that but confirmed or did not dispute that he did not submit the medical certificates after 2010 and he confirmed that there was no incapacity hearing.
- He applied for medical boarding, application was subjected to second opinion and it was declined around 2008 and the Department froze his salary because there was a report from the new institution, Buffalo City College that his whereabouts were not known. He only continued to submit medical certificates until 2010 and there was a new development where college lecturers were transferred to Higher Education.
- Mr. Dyafta again applied for medical boarding and had proposed alternatives like retrenchment and early retirement and those alternatives were not considered and there was no response. After his salary was frozen they wrote to the Department of Basic Education about unpaid salary and his application for ill-health and still there was no response.
- Around 2017 he approached the legislature for assistance and at that point he had not yet been discharged by the Department of Basic Education and this was about 10 years later. He stated that he did not choose to be transferred to Higher Education. He stated again that the employer was aware that he was sick but could not prove his sickness between 2010 and to 2017 and no documentary evidence of his whereabouts until April 2017 and since the transition he never reported for duty with the Department of Higher Education.
- He confirmed that the employer and employee contributions were supposed to be paid to Government Employee Pension Fund (GEPF) and the Department of Basic Education proposed to pay all the contributions and the Government Employee Pension Fund (GEPF) paid the employee contribution.
- He stated that an amount of R 457 780, 50 was paid to and received by the in 2020 and was backdated to 2010 and he stated that the salary that was paid to him was low and confirmed that an amount of R54 569, 60 was paid by the employer received. He explained that he his life has been damaged immensely and has lost everything after he has worked and served the department for a long time. At cross examination he confirmed that his calculations were based on a wrong notch.
- He averred that he has always wanted to resolve the issue amicable and has always been an employee of the department and he did not abscond and was never discharged. He stated that he signed the acknowledgment of debt because he wanted his pension money to be released and disputed that he agreed that he was supposed to be paid until 2010. The respondent then closed their case.
9. The employer then called their first and last witness Mr. Qaphela Luthuli who testified as follows:
- He testified that he works for the employer as an Acting Chief Director – Human Resources and at the time of the incident was Director – Human Resources in 2017 and that Mr. Piwe Dyafta was an employee of the Department of Basic Education at the time when Colleges were under the Department of Basic Education before merger in December 2005 then after he did not emerge as a Principal.
- He was then placed in the position of the Deputy Principal of the newly established entity and after that the applicant kept on submitting medical certificates until 2008 and the later applied medical boarding went for 2nd opinion and his application was declined and was communicated to the Mr. Dyafta.
- He stated that Mr. Dyafta submitted a letter of sickness on the 26th of February 2008 and he is now still sick and that he didn’t see the correspondence about the incapacity hearing and in 2008 the applicants salary was frozen until the end of March 2010.
- He averred that the applicant was transferred to the Department of Higher Education and the applicant did not submit medical certificates after 2010 and was transferred to the Department of Higher Education in 2015 and the incapacity leave application was made on the 15th May 2015 and 20th November 2015.
- He stated that the applicant was not transferred back to the Department of Basic Education was and at that point he was still at the Department of Higher Education and he conceded that the applicant accounted for the period 2008 – March 2010. He further stated that because the applicant’s salary was not paid for the period there was short fall of the pension fund.
- He testified that it should be noted that Mr. Dyafta benefited from pay progression and this is reflected on his service record persal printout even though he had no contract for Integrated Quality Management System (IQMS) which is performance management because he did not render services for the employer.
- The exit notch of Mr. Dyafta from the Department of Basic Education is R261 192.00 calculated as at 2010 and GEPF have their own formula. There was a meeting that was held at the legislature, in terms of item 3 of the Legislature minutes dated 18 April 2017.
- It is clearly stated that the decision of the meeting is that Mr. Dyafta be paid his outstanding salary for the period December 2008 to April 2010 and the Department also processed all the pension benefits that Mr. Dyafta is entitled to according to the decision made at the Legislature. He averred that the applicant could account for his absence from the 01st of April 2010 – April 2017 and the date of termination is the 01st of April 2010.
- He referred to page 13 of the Internal Memorandum dated 30 September 2008, an update from the office of the Superintendent-General to the MEC for education regarding this matter of Mr. Dyafta is the indication that the issue was being attended to. He averred that the date of termination of the applicant is informed by the decision made during the meeting held at the Legislature and the minutes are dated 18 April 2017 and was discharged on account of continued ill-health applied for by Mr. Dyafta.
- He averred that he do understand why Mr. Dyafta expected normal retirement although he applied for medical boarding and at no stage this was communicated to the employer that he is no longer interested in medical boarding but instead he would like to exit through normal retirement. He averred that the employer Mr. Dyafta exited with a correct salary notch and that the GEPF has its own formula for the calculation of pension benefits due to an employee.
- He stated that the applicant was paid his salary between 2008 – 2010 in the amount of R182 452, 00 and he detailed the payments that were paid to the applicant as follows. He agreed that they did not advise the applicant that he was technically reinstated but further agreed that this was part of the agreement to resolve the matter amicable so that the applicant can be paid and the payments were made in terms of the agreement.
- He further agreed that the agreement was in a form of a resolution of the meeting where the applicant was present and accepted the outcomes of the meeting and that the applicant could have objected but he knew that he could not account for his whereabouts until 2010. At the time of the meeting the applicant was no longer employment relationship.
- He averred that all the dues were paid to Mr. Dyafta and the first amount was R 102 818.16 for the period 01 December 2008 to July 2009 and then an amount of R 166 010.12 was paid to Mr. Dyafta for arrear salaries and the breakdown.
- An amount of R 77 059.00
- Less R 29 483.24
- Net Salary R 47 575.76
10. Then there were salaries paid to Mr. Dyafta and received by him then later reversed on the persal system.
11. Pay date is 15 October 2017.
- Paid R 57 847.03
- Less R 9 571.35
- Net Salary R 48 275.68
12. The pay date is 15 September 2017.
- Paid R 38 529.50
- Less R 9 579.85
- Net Salary R 28 949.65
13. The pay date is 15 August 2017.
- Paid R 38 529.50
- Less R 9 561.40
- Net Salary R 28 968.10
14. The pay date is 14 July 2017.
- Paid R 38 529.50
- Less R 9 563.90
- Net Salary R 28 965.60
15. The pay date is 15 June 2017.
- Paid R 38 529.50
- Less R 9 509.91
- Net Salary R 29 019.59
ANALYSIS OF EVIDENCE AND ARGUMENT
16. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 185 (2) provides that:
- no employee must be subjected to an unfair labour practice. The applicants feel that the employer has committed an unfair labour practice by failing to pay the applicant benefits and allowances.
17. As indicated above in the topic dealing with common cause facts the parties are not in dispute on whether the respondent has paid all the applicants benefits due to him. The only issue that remains to be decided is whether all the benefits that are due were paid. The applicant’s representative argued that the applicant never left the employ of the respondent and that the respondent was responsible for the payment of all outstanding money and benefits due to the applicant.
18. The applicant’s representative further argued that the applicant was never transferred to the Department of Higher Education and Training (DHET) and this is not disputed employer. It is also clear form the evidence of the employer witness and the employee applicant that the applicant was not asked to make a choice between DHET and the Respondent when there was amalgamation.
19. But it is important to note that this is the process that apply to all in the category of the applicant and the employer cannot be penalized because the applicant was sick because the sickness of the applicant was not the employers making. This transfer was therefore not unilateral transfer as argued by the applicant’s representative and this was therefore not an unlawful and unfair act by the respondent.
20. The applicant could not account for the period after 2010 and even though the applicant was sick he was sick for a number of days and there was a duty on the part of the applicant to account for illness and the respondent has already paid the applicant for the period he has accounted for. Even if the was not discharged or the respondent knew he was sick it cannot be accepted that an employee don’t account for absence.
21. The applicant therefore cannot be expected to benefit or draw salary from the employer when he has worked and accounted for the absence because if this does not happen it amounts to abscondment or a discharge meaning the applicant terminated his services. There was therefore nothing wrong or unlawful about the act of the respondent stopping the salary of the employee whose whereabouts are unknown.
22. Even if the applicant had applied for ill-health retirement and there was no answer he still has to account because even that application must convince the decision maker that the applicant is incapacitated or ill – health affecting him. Even if the employer was aware of the applicants address and contact details the applicant has a duty to account. The other factor is that there was amalgamation or merger which led to the other employees transferred to the DHET and the applicant was not there and did not participate.
23. The other issue is that the applicant agreed in a meeting with the legislature that the termination date is the 31st of March 2010. In this regard the applicant chose to approach the legislature for relief and everyone engaged genuinely to resolve the matter and there was a resolution on the matter which binds the applicant.
24. The applicant bare onus to demonstrate, on a balance of probabilities that the respondent committed ULP, and that the applicant suffered prejudice as a result. It is my finding that the applicant was not able to discharge this onus. Even if the applicant suffered financial loss, his illness and failure to account cannot be attributed to the employer. There is therefore no salary or benefits due to the applicant as a result of the employers conduct and this matter does not attract any cost order.
25. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the evidence that has been adduced in the arbitration hearing that the hostel allowance claimed by the applicants is due and payable to them.
26. The respondent has not committed an unfair labour practice by failing to pay the applicants benefits / salary / allowances and as such this did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
27. In the circumstances I make the following award.
AWARD
28. The applicant’s application is dismissed for the reasons provided above and that the applicant is not therefore not entitled to any relief.
29. As indicated above I do not make any order as to costs.
Signature:
Commissioner: Malusi Mbuli