PSES115-18/19WC
Text
ELRC688-21/22EC
Award Date:
30 March 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC688-21/22EC
In the matter between
NAPTOSA obo E Thompson Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 29 March 2022
DATE OF AWARD: 30 March 2022
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Department of Education – Eastern Cape has failed to pay out the educator’s leave gratuity.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 69 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (AS amended 26 May 2021). The Virtual Arbitration hearing was held on 29 March 2022 via Zoom.
2. The Applicant, Ms E Thompson - Persal Number 51438038, was present and was represented by Adv D Saayman from NAPTOSA.
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr S Xholisile from the Labour Relations Department.
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Respondent has failed to pay out the Applicant’s leave gratuity and if the Respondent has contravened the provisions of Resolution 7 of 2001 (PAM Chapter H) order payment of the Applicant’s leave gratuity.
BACKGROUND TO THE DISPUTE
5. The Applicant was previously employed by the Respondent as a Post Level 3 Deputy Principal at Greenwood Primary School and went on retirement on 30 April 2021.
6. The Applicant has received her pension, however has still not been paid her leave gratuity.
7. The Applicant seeks to have the leave gratuity paid out by the Respondent.
8. Due to the nature of the dispute and the fact that everything was common cause, besides the amount due to the Applicant, the parties did not make use of bundles.
SURVEY OF EVIDENCE AND ARGUMENT
9. It is common cause between the parties:
- That the Applicant was employed by the Respondent as a Post Level 3 Deputy Principal at Greenwood Primary School before going on retirement.
- That the Applicant retired on 30 April 2021 in terms of the Employment of Educators Act No 76 of 1998.
- That the Applicant had received her pension benefits.
- That the Applicant had still not received her leave gratuity.
- That the Applicant earned a monthly gross salary of R46 895.50 prior to retirement. (R562 746.00 per annum).
- That in terms of ELRC Resolution 7 of 2001 Annexure A, Leave Measures, Chapter F paragraph 5, as well as Chapter H Paragraph H4.5 in the PAM: Annual leave accrued prior to 1 July 2000 and during the period 1 July 2000 to 31 December 2001, should be paid out on retirement.
- That according to the Applicant’s last payslip and both parties the Applicant had 64.71 days capped leave.
- That the Applicant needed to be paid her capped leave.
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Respondent’s Submissions
11. The Respondent’s Representative stated that the Respondent does not dispute the fact that the Applicant needs to be paid her leave gratuity.
The Applicant’s Submissions
12. The Applicant’s Representative confirmed that the Respondent had still not paid the Applicant for her leave gratuity.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
13. It is common cause between the parties that the Applicant’s leave gratuity needs to be paid out by the Respondent.
14. Resolution 7 of 2001 Annexure A, Chapter F Paragraph 5.2 clearly states that:
The payouts in respect of such leave credits shall be made in the event of;
5.2.1 Death
5.2.2 Retirement, including early retirement; or
5.2.3 Medical boarding
15. These same conditions for payout of leave credits are stated in the Personnel Administrative Measure (PAM) document Chapter H Paragraph H.4.5.3.
16. This principle was instilled by the Basic Conditions of Employment Act No 75 of 1997 (BCEA) Section 40 (b), which clearly states:
Payments on Termination
On termination of employment, an employer must pay an employee -
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken;
17. According to the parties and the Applicant’s April 2021 payslip the Applicant has 64.71 days leave gratuity accrued.
18. The amount due to the Applicant for her leave gratuity is:
Gross Salary per month R46 895.50 ÷ 4.33 = R10 830.36 per week ÷ 5 days work week = R2 166.07 per day.
R2 166.07 per day X 64.71 days accrued leave = R140 166.63
19. It is my finding based on the above submissions that the Respondent has contravened Resolution 7 of 2001 by failing to pay out the Applicant’s leave gratuity. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicant’s leave gratuity and therefore make the following award.
AWARD
20. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, E Thompson – Persal Number 51438038, the amount of R140 166.63 (One Hundred and Forty Thousand One Hundred and Sixty Six Rand and Sixty Three Cents) less PAYE.
21. The payment mentioned in paragraph (20) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, E Thompson – Persal Number 51438038, must be done by no later than 31 May 2022.
Panellist: AW Howden
ELRC
Case No ELRC688-21/22EC
In the matter between
NAPTOSA obo E Thompson Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 29 March 2022
DATE OF AWARD: 30 March 2022
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Department of Education – Eastern Cape has failed to pay out the educator’s leave gratuity.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 69 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (AS amended 26 May 2021). The Virtual Arbitration hearing was held on 29 March 2022 via Zoom.
2. The Applicant, Ms E Thompson - Persal Number 51438038, was present and was represented by Adv D Saayman from NAPTOSA.
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr S Xholisile from the Labour Relations Department.
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Respondent has failed to pay out the Applicant’s leave gratuity and if the Respondent has contravened the provisions of Resolution 7 of 2001 (PAM Chapter H) order payment of the Applicant’s leave gratuity.
BACKGROUND TO THE DISPUTE
5. The Applicant was previously employed by the Respondent as a Post Level 3 Deputy Principal at Greenwood Primary School and went on retirement on 30 April 2021.
6. The Applicant has received her pension, however has still not been paid her leave gratuity.
7. The Applicant seeks to have the leave gratuity paid out by the Respondent.
8. Due to the nature of the dispute and the fact that everything was common cause, besides the amount due to the Applicant, the parties did not make use of bundles.
SURVEY OF EVIDENCE AND ARGUMENT
9. It is common cause between the parties:
- That the Applicant was employed by the Respondent as a Post Level 3 Deputy Principal at Greenwood Primary School before going on retirement.
- That the Applicant retired on 30 April 2021 in terms of the Employment of Educators Act No 76 of 1998.
- That the Applicant had received her pension benefits.
- That the Applicant had still not received her leave gratuity.
- That the Applicant earned a monthly gross salary of R46 895.50 prior to retirement. (R562 746.00 per annum).
- That in terms of ELRC Resolution 7 of 2001 Annexure A, Leave Measures, Chapter F paragraph 5, as well as Chapter H Paragraph H4.5 in the PAM: Annual leave accrued prior to 1 July 2000 and during the period 1 July 2000 to 31 December 2001, should be paid out on retirement.
- That according to the Applicant’s last payslip and both parties the Applicant had 64.71 days capped leave.
- That the Applicant needed to be paid her capped leave.
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Respondent’s Submissions
11. The Respondent’s Representative stated that the Respondent does not dispute the fact that the Applicant needs to be paid her leave gratuity.
The Applicant’s Submissions
12. The Applicant’s Representative confirmed that the Respondent had still not paid the Applicant for her leave gratuity.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
13. It is common cause between the parties that the Applicant’s leave gratuity needs to be paid out by the Respondent.
14. Resolution 7 of 2001 Annexure A, Chapter F Paragraph 5.2 clearly states that:
The payouts in respect of such leave credits shall be made in the event of;
5.2.1 Death
5.2.2 Retirement, including early retirement; or
5.2.3 Medical boarding
15. These same conditions for payout of leave credits are stated in the Personnel Administrative Measure (PAM) document Chapter H Paragraph H.4.5.3.
16. This principle was instilled by the Basic Conditions of Employment Act No 75 of 1997 (BCEA) Section 40 (b), which clearly states:
Payments on Termination
On termination of employment, an employer must pay an employee -
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken;
17. According to the parties and the Applicant’s April 2021 payslip the Applicant has 64.71 days leave gratuity accrued.
18. The amount due to the Applicant for her leave gratuity is:
Gross Salary per month R46 895.50 ÷ 4.33 = R10 830.36 per week ÷ 5 days work week = R2 166.07 per day.
R2 166.07 per day X 64.71 days accrued leave = R140 166.63
19. It is my finding based on the above submissions that the Respondent has contravened Resolution 7 of 2001 by failing to pay out the Applicant’s leave gratuity. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicant’s leave gratuity and therefore make the following award.
AWARD
20. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, E Thompson – Persal Number 51438038, the amount of R140 166.63 (One Hundred and Forty Thousand One Hundred and Sixty Six Rand and Sixty Three Cents) less PAYE.
21. The payment mentioned in paragraph (20) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, E Thompson – Persal Number 51438038, must be done by no later than 31 May 2022.
Panellist: AW Howden
ELRC