ELRC797-21/22 LP
Text
ELRC797-21/22 LP
Award Date:
31 May 2022
Case Number: ELRC797-21/22 LP
Panelists: Malusi Mbuli
Date of Award: 31-05-2022
In the ARBITRATION between
SAMUEL MASETLA & 27 OTHERS
(Applicant)
And
DEPARTMENT OF EDUCATION – LIMPOMPO
(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 on the 23rd of May 2022.
2. The applicants, Mr. Samuel Masetla & 27 others attended the hearing remotely and were represented by their legal representative Mrs. Bianca Perry. The respondent, Limpopo Department of Education, also attended the hearing and was represented by Mr. M.M. Matlou an official of the respondent.
3. The matter proceeded on the 23rd of May 2022, and was finalized on the same day with the parties agreeing on record on the common cause facts and filling their closing arguments not later than the 27th of May 2022 and both parties did file their arguments.
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 applicants Rural Allowance and if so, I must determine the appropriate remedy.
COMMON CAUSE FACTS
5. It is common cause that the applicants applied for teacher incentives, in terms of Government Gazette Number 30678 signed by the then Minister of Education.
6. The applicant referred an Unfair Labour Practice Dispute on or about the 20th of January 2022 concerning the respondent’s failure / refusal to enter into incentive contracts with the applicants and the respondent’s refusal to implement and pay the remoteness incentives / rural allowance.
7. It also not in Dispute that, the respondent acceded that the applicant qualifies to be paid the incentive and have in fact being paid already by the respondent and that the applicants decided on the 01st of November 2021 as the date when their dispute arose.
8. The respondent terminated payment of the rural incentive for all educators in the Department of Education effective from 1st January 2022. Then SADTU approached the Labour Court after the respondent has terminated payment of rural incentive to all educators in the Limpopo Province.
9. The applicants received and have been receiving their salaries and at no stage did the respondent stopped paying their due salaries, and therefore the applicants suffered no financial loss since they were being paid their monthly salaries.
10. The respondent never stopped paying their monthly salaries and the teacher rural incentive is not the only source of income they rely on and therefore their dignity was never trampled upon by the respondent.
ISSUE IN DISPUTE
11. The issue in dispute is whether the applicants are entitled to compensation and if they are the appropriate and compensation to be awarded to them.
EVIDENCE
12. The facts in this dispute were mostly common and were confirmed by the parties on record and the only issue that remained subject of evidence was the compensation relief which the applicants prayed for and evidence was led in respect of this part only.
13. The applicant’s representative then led evidence of one applicant – Mr. Samuel Masetla who testified on behalf of others as well and stated the following.
- That he is an applicant in these proceedings and has been given a mandate by all the other applicants in this matter to speak on their behalf. He averred that the schools that they are working or teaching in are rural schools in deep rural areas with poor communities who are not working and those who are working are working seasonally and people rely on grants.
- At the moment he is teaching Sepedi in a class of about 46 learners and the learners they are teaching are older than the grade they are doing because of the conditions of living in that area and is very difficult to teach them because they come to school on empty stomachs.
- He states that in their schools the teachers sometimes assist the kids with food, uniforms, use their vehicles etc from their pockets and they don’t claim their money from the Department of Education. He states that he together with other teachers were not paid their rural allowance from the date when it was introduced by the respondent’s policy.
- He averred that the other schools benefited from the rural allowance that was introduced but they did not benefit from that policy even though they qualified but the other teachers in other schools were paid this benefit or allowance. He stated that they decided to claim their rural allowance from the 01st of November 2021 because they wanted to avoid accounting for the days of lateness in a condonation application.
- He confirmed that when they claimed their rural allowance the employer never refused to pay it and it was then paid effective from the 01st November 2022 and that for the whole period they have been paid their basic salary. He added that they knew long time ago that they were supposed to be paid their rural allowance.
14. The respondent did not lead evidence on their side.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. 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 them rural allowance or at least paying their allowance late.
16. As indicated above the in the topic dealing with common cause facts the parties are not in dispute on whether the respondent owe and paid the applicants rural allowance. The only issue that remains to be decided is whether the applicants are entitled to compensation as well and for this reason I will not deal with the purpose for the incentive and whether the applicants are entitled to the rural incentive allowance because this one is due and settled.
17. It is common cause that the respondent did not pay the applicants their incentive rural allowance but at least when they were approached by the applicants after the 01st of November 2021 they paid that rural allowance even though it was stopped again in January 2022.
18. For this reason the attitude of the respondent has been a positive and a fair attitude and the decision in Edumbe Municipality v/s Putini [2020] BLLR 496 (LAC) which the applicant’s representative has referred me to will not apply in these circumstances. Off course I was going to consider these factors dealt with in this judgment if compensation in terms of section 194 of the Act was applicable or due.
19. 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 facts and evidence that has been adduced in the arbitration hearing that the rural allowance was paid to the applicants and if it was not yet paid it will be paid.
20. This payment is made or will be made effective from the 01st of November 2021 because the applicants have elected this date as the date when their dispute arose. The applicants have in their opening statement, evidence and argument indicated that they elected this date because they wanted to avoid condonation application.
21. As such the applicants cannot be entitled to a relief for any action prior the date they have elected as the date when their dispute arouse and cannot derive benefit out of bypassing the provisions of the act. This is not one of the disputes that attract compensation and the applicants should have reflected their dispute as having arisen on a prior date and applied for condonation if that condonation was in anyway applicable.
22. For the reasons mentioned above the respondent has not committed an unfair labour practice by allegedly failing to pay the applicants rural allowance and as such the respondents actions did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
23. In the circumstances I make the following award.
AWARD
24. The respondent has paid the applicants their rural allowance from the 01st of November 2021, the date which the applicants elected to be the date when their dispute arose.
25. The applicants are not entitled to any compensation as argued above and are therefore not entitled to any further or alternative relief as their main issue on payment of rural allowance has been resolved and paid.
26. I make no order as to costs at this stage.
Signature:
Commissioner: Malusi Mbuli
Panelists: Malusi Mbuli
Date of Award: 31-05-2022
In the ARBITRATION between
SAMUEL MASETLA & 27 OTHERS
(Applicant)
And
DEPARTMENT OF EDUCATION – LIMPOMPO
(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 on the 23rd of May 2022.
2. The applicants, Mr. Samuel Masetla & 27 others attended the hearing remotely and were represented by their legal representative Mrs. Bianca Perry. The respondent, Limpopo Department of Education, also attended the hearing and was represented by Mr. M.M. Matlou an official of the respondent.
3. The matter proceeded on the 23rd of May 2022, and was finalized on the same day with the parties agreeing on record on the common cause facts and filling their closing arguments not later than the 27th of May 2022 and both parties did file their arguments.
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 applicants Rural Allowance and if so, I must determine the appropriate remedy.
COMMON CAUSE FACTS
5. It is common cause that the applicants applied for teacher incentives, in terms of Government Gazette Number 30678 signed by the then Minister of Education.
6. The applicant referred an Unfair Labour Practice Dispute on or about the 20th of January 2022 concerning the respondent’s failure / refusal to enter into incentive contracts with the applicants and the respondent’s refusal to implement and pay the remoteness incentives / rural allowance.
7. It also not in Dispute that, the respondent acceded that the applicant qualifies to be paid the incentive and have in fact being paid already by the respondent and that the applicants decided on the 01st of November 2021 as the date when their dispute arose.
8. The respondent terminated payment of the rural incentive for all educators in the Department of Education effective from 1st January 2022. Then SADTU approached the Labour Court after the respondent has terminated payment of rural incentive to all educators in the Limpopo Province.
9. The applicants received and have been receiving their salaries and at no stage did the respondent stopped paying their due salaries, and therefore the applicants suffered no financial loss since they were being paid their monthly salaries.
10. The respondent never stopped paying their monthly salaries and the teacher rural incentive is not the only source of income they rely on and therefore their dignity was never trampled upon by the respondent.
ISSUE IN DISPUTE
11. The issue in dispute is whether the applicants are entitled to compensation and if they are the appropriate and compensation to be awarded to them.
EVIDENCE
12. The facts in this dispute were mostly common and were confirmed by the parties on record and the only issue that remained subject of evidence was the compensation relief which the applicants prayed for and evidence was led in respect of this part only.
13. The applicant’s representative then led evidence of one applicant – Mr. Samuel Masetla who testified on behalf of others as well and stated the following.
- That he is an applicant in these proceedings and has been given a mandate by all the other applicants in this matter to speak on their behalf. He averred that the schools that they are working or teaching in are rural schools in deep rural areas with poor communities who are not working and those who are working are working seasonally and people rely on grants.
- At the moment he is teaching Sepedi in a class of about 46 learners and the learners they are teaching are older than the grade they are doing because of the conditions of living in that area and is very difficult to teach them because they come to school on empty stomachs.
- He states that in their schools the teachers sometimes assist the kids with food, uniforms, use their vehicles etc from their pockets and they don’t claim their money from the Department of Education. He states that he together with other teachers were not paid their rural allowance from the date when it was introduced by the respondent’s policy.
- He averred that the other schools benefited from the rural allowance that was introduced but they did not benefit from that policy even though they qualified but the other teachers in other schools were paid this benefit or allowance. He stated that they decided to claim their rural allowance from the 01st of November 2021 because they wanted to avoid accounting for the days of lateness in a condonation application.
- He confirmed that when they claimed their rural allowance the employer never refused to pay it and it was then paid effective from the 01st November 2022 and that for the whole period they have been paid their basic salary. He added that they knew long time ago that they were supposed to be paid their rural allowance.
14. The respondent did not lead evidence on their side.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. 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 them rural allowance or at least paying their allowance late.
16. As indicated above the in the topic dealing with common cause facts the parties are not in dispute on whether the respondent owe and paid the applicants rural allowance. The only issue that remains to be decided is whether the applicants are entitled to compensation as well and for this reason I will not deal with the purpose for the incentive and whether the applicants are entitled to the rural incentive allowance because this one is due and settled.
17. It is common cause that the respondent did not pay the applicants their incentive rural allowance but at least when they were approached by the applicants after the 01st of November 2021 they paid that rural allowance even though it was stopped again in January 2022.
18. For this reason the attitude of the respondent has been a positive and a fair attitude and the decision in Edumbe Municipality v/s Putini [2020] BLLR 496 (LAC) which the applicant’s representative has referred me to will not apply in these circumstances. Off course I was going to consider these factors dealt with in this judgment if compensation in terms of section 194 of the Act was applicable or due.
19. 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 facts and evidence that has been adduced in the arbitration hearing that the rural allowance was paid to the applicants and if it was not yet paid it will be paid.
20. This payment is made or will be made effective from the 01st of November 2021 because the applicants have elected this date as the date when their dispute arose. The applicants have in their opening statement, evidence and argument indicated that they elected this date because they wanted to avoid condonation application.
21. As such the applicants cannot be entitled to a relief for any action prior the date they have elected as the date when their dispute arouse and cannot derive benefit out of bypassing the provisions of the act. This is not one of the disputes that attract compensation and the applicants should have reflected their dispute as having arisen on a prior date and applied for condonation if that condonation was in anyway applicable.
22. For the reasons mentioned above the respondent has not committed an unfair labour practice by allegedly failing to pay the applicants rural allowance and as such the respondents actions did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
23. In the circumstances I make the following award.
AWARD
24. The respondent has paid the applicants their rural allowance from the 01st of November 2021, the date which the applicants elected to be the date when their dispute arose.
25. The applicants are not entitled to any compensation as argued above and are therefore not entitled to any further or alternative relief as their main issue on payment of rural allowance has been resolved and paid.
26. I make no order as to costs at this stage.
Signature:
Commissioner: Malusi Mbuli