ELRC603-21/22 LP
Award  Date:
  30 March 2022
Panellist: Mmakgare Piet Shai
Case No ELRC603-21/22 LP
Date of Hearing: 25 February 2022
Date of the Award: 30th March 2022

In the Arbitration Hearing between




Applicant’s representative:
MS Bianca Perry

Respondent’s representative:
Mr Mogoba Matlou

1. The matter was heard on the 25th February 2022 via Online Media.
2. Both parties were present. The employees were represented by Ms. Bianca Perry, an attorney from Thomas and Swanepoel Incorporated, whereas the employer was represented by Mr Mogoba Matlou, its Industrial Relations Specialist.
3. At the end of the proceedings, parties were directed to file closing arguments on or before 7th March 2022.
4. The proceedings were digitally recorded.

5. Whether or not the employer has committed Unfair Labour Practice or not. In the event I find this to be the case I will order that the employer to pay to the employees the incentive that is due to them. Further that, I will determine whether the employees are entitled to compensation in addition to incentive benefits in terms of the incentive scheme operative within the employer. If I find that the employees are entitled to the compensation, I will order the employer to pay to them such compensation as I will deem fair in the circumstances, and in addition to the incentive scheme benefits agreed to by the employer below.
6. The employees are employed as educators at the employer. The employees expected to be paid benefits in terms of incentive scheme existing at the employer at the time of the lodging of the dispute.
7. Despite being qualified for the said benefit, the employer failed to pay them the benefit. The employees lodged their dispute with Council for resolution
8. The employer acknowledged that the employees qualify for the benefit and that they are intending to pay such benefit.
9. The parties agreed on the following common cause issues:
9.1. The parties agree that the employees are entitled to incentive scheme benefit from August 2021 until termination of the scheme and pending the outcome of appeal hearing by the Labour Appeal Court.
9.2. That the monthly incentive is R2033, 65 (two thousand and thirty-three rand sixty-five cents) per educator.
9.3. That the employer acknowledges that it owes each educator a sum of R11668,25 eleven thousand six hundred and sixty eight rand twenty five cents, subject to taxation.
9.4. That the employer admits that it had committed unfair labor practice by not paying to the educators the above amounts.
10. Whether the employees are entitled to compensation in addition to the amounts stated above.
11. He is an educator at the relevant school.
12. The matter was referred to the Council on the 1st November 2021 and Conciliation took place on the 23rd November 2021.
13. After conciliation they expected the employer to pay them accordingly. Their two neighboring schools are receiving the incentive while they did not.
14. He teaches Grade 7 class which consists of about eighty (80) learners. All learners came from a poor background. It is very difficult to teach such a class. Sometimes they volunteer to do extra classes for which they are not paid.
15. He feels frustrated that others are paid while they are not.
16. It was the responsibility of the employer to determine whether they qualified and if so pay them. They need not have claimed benefits in terms of the procedure.
17. He admitted that during this period he was paid his salary.
18. He claims solatium due to the time taken to have the money paid.
19. The benefit should have helped him to do his work including the voluntary one.

20. The employees did not mention that they claim compensation in their referrals.
21. The employer acknowledges that the educators are entitled to the incentive.
22. The matter was scheduled for conciliation on the 23rd January 2022 and today is the first hearing of the arbitration. There is no delay since the employer accepted liability. There is no prejudice as they are to be paid their incentives. Meanwhile they were paid their salaries every month.

23. Section 193(4) of Labour Relations Act No: 66 of 1995 as amended stipulates that:
“An arbitrator appointed in terms of this Act, may determine any unfair Labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re employment or compensation”.
24. Section 194 of the same Act stipulates that:
“The compensation awarded to the employee in respect of an Unfair Labour Practice must be just and equitable in all the circumstances, but not more than the equivalent of twelve (12) months remuneration”.
25. Section 195 of the same Act as amended stipulates further that:
“An order or award of compensation made in terms of this chapter is in addition to and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment”.
26. Firstly, I accept that the employees included this remedy in their request for arbitration and the employer knew all along that it will be the employee’s prayer in these proceedings. The employer seems to be of the view that it was ambushed thereby. In essence the employer seems to suggest that since this issue was not conciliated or included in the conciliation form i should not have considered it. It is the dispute that must be conciliated to found arbitration. In our case the dispute is Unfair Labour Practice and not compensation. Compensation is a relief on a finding of having committed an Unfair Labour Practice and therefore need not be conciliated per se. A party may change the remedy he/she wants at any stage before the completion of the arbitration proceedings. Consequently, I reject this submission.
27. The factors that are considered when determining whether compensation and the amount thereof should be paid were outlined in the case of Minister of Justice and Constitutional Development v Tshishonga [2009] 9 BLLR 862 (LAC):
“The nature of the injuria, circumstances in which the infringement took place, the behaviour of the defendant (especially whether the motive was honourable or malicious), the extent of the plaintiff’s humiliation or distress, the abuse of the relationship between the parties and the attitude of the defendant after the injuria had taken place.”
The above list is not exhaustive.
28. It was testified for the employees that when their colleagues of the neighboring schools received their incentives and they did not, they felt frustrated and distressed. I accept that teaching in such schools and circumstances where your colleagues are receiving incentives and you are not but entitled to can be a source of great dissatisfaction and can lead to demoralization which could affect the leaners themselves.
29. It was also testified for the employer that the employer was never intransigent in this matter and had accepted liability for the payment of the said incentive forthright. This too is acceptable explanation.
30. The two submissions will be considered in determining the amount of compensation to be granted to the employees.
31. Consequently, I determine that the employees are entitled to compensation in addition to the incentive alluded above.
32. As I indicated above that these submissions will be considered in arriving at a just and equitable amount.
33. I have taken into the account the fact that the employer offered no explanation for the delay of payment when other claimants were paid. It is unacceptable that when officials are given tasks as in this case, they do not perform them thereby prejudicing fellow employees or the public. This will serve as an admonition to the employer to ensure that it holds its officials accountable, while on the other hand this will soothe the prejudice the employees suffered owing to failure to pay an incentive due to them.
34. I determine that the employer, the Department of Education-Limpopo, has committed an Unfair Labour Practice by not paying the employees, whose names appear in the schedule hereto, their incentives.
35. The employer is ordered to pay each employee, listed in the schedule hereto, the amount of R 11 668.25 (eleven thousand, six hundred and sixty-eight rand, twenty- five cents), in respect of the incentive allowance due to them, subject to lawful deductions for RSA tax.
36. The employer is ordered to pay to each employee, listed in the schedule hereto, a sum of R 4 066.00 (four thousand and sixty -six rand), which is equivalent to the sum of two months incentive, as compensation.
37. The above amounts must be paid on or before the 30th May 2022.

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