ELRC644-20/21 EC
Text
ELRC417-21/22EC
Award Date:
07 March 2022
Panelist: Clint Enslin
Case No.: ELRC417-21/22EC
Date of Award: 7 March 2022
In the ARBITRATION between:
NAPTOSA obo Sonnekus, Mari
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Anton Adams
Applicant’s address:
Telephone: 0837201354
Telefax:
Email antona@naptosa.org.za
Respondent’s representative: Mr Sandiso Xhalisile
Respondent’s address:
Telephone: 0651547015 / 0637647990
Telefax:
Email sandiso.xhalisile@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 18 February 2022 and the proceedings were electronically recorded.
2. The Applicant, Ms Mari Sonnekus, was represented by Mr Anton Adams, Senior Executive Official of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Mr Sandiso Xhalisile, a Labour Relations Officer.
ISSUE TO BE DECIDED
3. Whether the Respondent’s non-payment of the Applicant’s claimed capped leave, upon her retirement, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
4. If so, determine appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant, a former educator, retired on 31 December 2020.
5.2 The Applicant was not paid out her capped leave upon her retirement.
5.3 The monies are owed to the Applicant.
5.4 The monies claimed amount to a benefit.
5.5 The basis of the claim is Collective Agreement 7 of 2001.
5.6 The leave days owed amount to 101 days.
5.7 The quantum of the days owed amounts to R179 484.44
SURVEY OF EVIDENCE AND ARGUMENT
6. The parties agreed to all the facts as per clauses 5.1 to 5.5 above, but indicated that they would need to verify the number of days and quantum. It was agreed that parties would be given an opportunity to do so and confirm the outcome in writing. If there was a disagreement on the amount of days claimed and/or quantum, the matter would be set down for evidence to be lead on same. On 25 February 2022, the Respondent confirmed, via e-mail, that it was in agreement with the 101 days claimed. On 28 February 2022, parties confirmed via e-mail that they had agreed on the quantum, being R179 484.44.
7. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both indicated that they had no further evidence to lead, as all facts were common cause.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by 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 a benefit to an employee. (Own underlining)
9. It is common cause between the parties that the capped leave money, claimed by the Applicant, is a benefit. It was further common cause that Collective Agreement 7 of 2001 was the basis for the claim.
10. The Respondent agrees that the 101 days capped leave, claimed by the Applicant, is owing to her by the Respondent and that the quantum of the claim is R179 484.44. As a result, I am of the view that the non-payment of the said monies amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicant, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.
11. The Respondent has therefore committed an Unfair Labour Practice against the Applicant.
AWARD
12. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicant, Ms Mari Sonnekus, by not paying her capped leave days, in the amount of R179 484.44, upon her retirement.
13. The Respondent, the Department of Education: Eastern Cape, must pay the Applicant, Ms Mari Sonnekus, an amount of R179 484.44, less normal deductions.
14. The amount, as referred to in paragraph 13, must be paid to the Applicant by no later than 1 April 2022.
Name: Clint Enslin
(ELRC) Arbitrator
Case No.: ELRC417-21/22EC
Date of Award: 7 March 2022
In the ARBITRATION between:
NAPTOSA obo Sonnekus, Mari
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr Anton Adams
Applicant’s address:
Telephone: 0837201354
Telefax:
Email antona@naptosa.org.za
Respondent’s representative: Mr Sandiso Xhalisile
Respondent’s address:
Telephone: 0651547015 / 0637647990
Telefax:
Email sandiso.xhalisile@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 18 February 2022 and the proceedings were electronically recorded.
2. The Applicant, Ms Mari Sonnekus, was represented by Mr Anton Adams, Senior Executive Official of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Mr Sandiso Xhalisile, a Labour Relations Officer.
ISSUE TO BE DECIDED
3. Whether the Respondent’s non-payment of the Applicant’s claimed capped leave, upon her retirement, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
4. If so, determine appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicant, a former educator, retired on 31 December 2020.
5.2 The Applicant was not paid out her capped leave upon her retirement.
5.3 The monies are owed to the Applicant.
5.4 The monies claimed amount to a benefit.
5.5 The basis of the claim is Collective Agreement 7 of 2001.
5.6 The leave days owed amount to 101 days.
5.7 The quantum of the days owed amounts to R179 484.44
SURVEY OF EVIDENCE AND ARGUMENT
6. The parties agreed to all the facts as per clauses 5.1 to 5.5 above, but indicated that they would need to verify the number of days and quantum. It was agreed that parties would be given an opportunity to do so and confirm the outcome in writing. If there was a disagreement on the amount of days claimed and/or quantum, the matter would be set down for evidence to be lead on same. On 25 February 2022, the Respondent confirmed, via e-mail, that it was in agreement with the 101 days claimed. On 28 February 2022, parties confirmed via e-mail that they had agreed on the quantum, being R179 484.44.
7. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both indicated that they had no further evidence to lead, as all facts were common cause.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by 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 a benefit to an employee. (Own underlining)
9. It is common cause between the parties that the capped leave money, claimed by the Applicant, is a benefit. It was further common cause that Collective Agreement 7 of 2001 was the basis for the claim.
10. The Respondent agrees that the 101 days capped leave, claimed by the Applicant, is owing to her by the Respondent and that the quantum of the claim is R179 484.44. As a result, I am of the view that the non-payment of the said monies amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicant, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.
11. The Respondent has therefore committed an Unfair Labour Practice against the Applicant.
AWARD
12. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicant, Ms Mari Sonnekus, by not paying her capped leave days, in the amount of R179 484.44, upon her retirement.
13. The Respondent, the Department of Education: Eastern Cape, must pay the Applicant, Ms Mari Sonnekus, an amount of R179 484.44, less normal deductions.
14. The amount, as referred to in paragraph 13, must be paid to the Applicant by no later than 1 April 2022.
Name: Clint Enslin
(ELRC) Arbitrator