PSES115-18/19WC
Text
ELRC882-21/22EC
Award Date:
08 June 2022
Case Number: ELRC882-21/22E
Commissioner: Zipporah Ngwenya
Date of Award: 8 June 2022
In the matter between
SAOU obo Nel Hildegard Applicant
And
Department of Education: Eastern Cape Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. The arbitration hearing was scheduled in terms of Section 33A read with Clause 69 of the ELRC Dispute Resolution Procedures for a virtual hearing that was held on 26 May 2022 and both parties to connected via Zoom. The Applicant, Ms. Hildegard Nel, although absent, was represented by Ms. D Harvey; a trade union official for SAOU. The Respondent was represented by Ms. A Slabbert, its Labour Relations Officer. The hearing was conducted in English and were digitally recorded.
ISSUE TO BE DECIDED
2. I must decide whether the Applicant is entitled to capped leave pay-out as provided for in terms of the ELRC Resolution 7 of 2011.
BACKROUND TO THE DISPUTE
3. The Applicant was employed by the Respondent as an Educator. She retired from her employment in April 2021. It is her claim that she had not been paid her capped leave pay-out that she was entitled to. The Respondent indicated that they do not dispute the Applicant’s claim. It was common cause that the Applicant accrued 186 days and that the amount owing was R 325 615.22. The Applicant is claiming that in terms of ELRC Resolution 7 of 2001, paragraph 5.2, accrued leave credits should be paid out in the event of retirement.
THE APPLICANTS’ CASE
4. Ms. Harvey, on behalf of the Applicant, testified under oath that the Respondent had to date failed to pay out the Applicant’s capped leave days which amount to a cash value of R325 615.22. According to Ms. Harvey, the Applicant followed up on the nonpayment several times, but was not assisted. The Department of Education is unreasonably withholding her capped leave pay-out and is taking a long period of time to process payment for her capped leave.
THE RESPONDENT’S CASE
5. Ms. Slabbert admitted that the Applicant was indeed owed what she was claiming.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. It is established that the Applicant accrued 186 days capped leave, that the Respondent had conducted an audit of the leave days and that the days amounted to R 325 615.22. The failure of the nonpayment of that amount was furthermore not disputed. Both parties’ versions are common.
7. Respondent conceded and admitted that the Applicant is entitled to capped leave payment. The crux of the matter here is that the Respondent is delaying payment of what is due to the Applicant.
AWARD
8. The Respondent is hereby ordered to process and pay the Applicant’s uncontested capped leave payment of 186 days amounting R 325 615. 22 subject to all relevant statutory deductions, to the Applicant’s known Bank Account no later than the 29 July 2022.
Signature:
Zipporah Ngwenya
ELRC Panellist
Commissioner: Zipporah Ngwenya
Date of Award: 8 June 2022
In the matter between
SAOU obo Nel Hildegard Applicant
And
Department of Education: Eastern Cape Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. The arbitration hearing was scheduled in terms of Section 33A read with Clause 69 of the ELRC Dispute Resolution Procedures for a virtual hearing that was held on 26 May 2022 and both parties to connected via Zoom. The Applicant, Ms. Hildegard Nel, although absent, was represented by Ms. D Harvey; a trade union official for SAOU. The Respondent was represented by Ms. A Slabbert, its Labour Relations Officer. The hearing was conducted in English and were digitally recorded.
ISSUE TO BE DECIDED
2. I must decide whether the Applicant is entitled to capped leave pay-out as provided for in terms of the ELRC Resolution 7 of 2011.
BACKROUND TO THE DISPUTE
3. The Applicant was employed by the Respondent as an Educator. She retired from her employment in April 2021. It is her claim that she had not been paid her capped leave pay-out that she was entitled to. The Respondent indicated that they do not dispute the Applicant’s claim. It was common cause that the Applicant accrued 186 days and that the amount owing was R 325 615.22. The Applicant is claiming that in terms of ELRC Resolution 7 of 2001, paragraph 5.2, accrued leave credits should be paid out in the event of retirement.
THE APPLICANTS’ CASE
4. Ms. Harvey, on behalf of the Applicant, testified under oath that the Respondent had to date failed to pay out the Applicant’s capped leave days which amount to a cash value of R325 615.22. According to Ms. Harvey, the Applicant followed up on the nonpayment several times, but was not assisted. The Department of Education is unreasonably withholding her capped leave pay-out and is taking a long period of time to process payment for her capped leave.
THE RESPONDENT’S CASE
5. Ms. Slabbert admitted that the Applicant was indeed owed what she was claiming.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. It is established that the Applicant accrued 186 days capped leave, that the Respondent had conducted an audit of the leave days and that the days amounted to R 325 615.22. The failure of the nonpayment of that amount was furthermore not disputed. Both parties’ versions are common.
7. Respondent conceded and admitted that the Applicant is entitled to capped leave payment. The crux of the matter here is that the Respondent is delaying payment of what is due to the Applicant.
AWARD
8. The Respondent is hereby ordered to process and pay the Applicant’s uncontested capped leave payment of 186 days amounting R 325 615. 22 subject to all relevant statutory deductions, to the Applicant’s known Bank Account no later than the 29 July 2022.
Signature:
Zipporah Ngwenya
ELRC Panellist