ELRC11-22/23EC
Text
ELRC11-22/23EC
Award Date:
06 July 2022
Panelist: Clint Enslin
Case No.: ELRC11-22/23EC
Date of Award: 6 July 2022
In the ARBITRATION between:
NAPTOSA obo Tryphina Ndamase
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr A Mhlontlo
Applicant’s address:
Telephone: 082 308 3940
Telefax:
Email
Respondent’s representative: Mr L Mashoai
Respondent’s address:
Telephone:
Telefax: 081 046 9892
Email
DETAILS OF HEARING AND REPRESENTATION
1. This 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 : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 4 July 2022 and the proceedings were electronically recorded. The Applicant, Ms Tryphina Ndamase through her Union, NAPTOSA, referred an enforcement dispute to the ELRC. The Applicant was represented by Mr Aaron Mhlontlo, an official from NAPTOSA. The Respondent, Department of Education – Eastern Cape was represented by Mr Loyiso Mashoai, a Chief Education Specialist: Employee Relations.
ISSUE TO BE DECIDED
2. I am required to determine the following:
2.1 whether the Respondent has refused and/or failed to pay the Applicant an acting allowance, and if so,
2.2 whether same is in breach of the Collective Agreement, and if so,
2.3 determine appropriate relief
BACKGROUND TO THE ISSUES
3. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
3.1 The Applicant has been employed, by the Respondent, as a post level 1 educator since 24 April 2002.
3.2 The Applicant earns R338 472 per annum
3.3 The Applicant was instructed to act as Principal of Mazama Senior Secondary School from 10 November 2020 until 31 October 2021 and she in fact did perform such functions for the said period.
3.4 The Applicant has complied with all requirements in order for the acting allowance to be payable to her.
3.5 She is entitled to be paid an acting allowance of R77 925 for the period that she acted.
3.6 The amount in paragraph 3.5 above, less normal deductions, is owing to the Applicant and has not been paid as yet.
3.7 The basis of the claim is ELRC Resolution 8 of 2001 read with PAM chapter C.4
SURVEY OF EVIDENCE AND ARGUMENT
4. All the facts in this matter are common cause between the parties. The parties were nevertheless asked if they wished to add anything, however, both indicated that they had nothing to add.
ANALYSIS OF EVIDENCE AND ARGUMENT
5. Clause 69.1, of the ELRC Constitution, provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
6. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
7. Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
8. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
9. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”
10. Clause 4 of ELRC Resolution 8 2001 confirms that the agreement applies to and binds the employer and all employees of the employer as defined in the Employment of Educators Act, 1998 (as amended), excluding employees on post level 6 as well as those on SMS, whether such employees are members of trade union parties to this agreement or not.
11. It is common cause that the Applicant qualified for and was entitled to be paid an acting allowance for the period in question and that such payment has not taken place. The quantum of such allowance, for the period in question, is also common cause.
12. It is, to my mind, clear that the Respondent has refused and/or failed to comply with ELRC Resolution 8 of 2001 read with PAM chapter C.4. As such the Respondent is in breach of the said Collective Agreement.
AWARD
13. The Respondent, the Department of Education: Eastern Cape is in breach of ELRC Resolution 8 of 2001, read with PAM chapter C.4, by not paying the Applicant her acting allowance for the period of 10 November 2020 until 31 October 2021.
14. The Respondent, the Department of Education: Eastern Cape is ordered to pay the Applicant, Ms Tryphina Ndamase (persal number 53112202) the amount of R77 925, less normal deductions, as her acting allowance for the period of 10 November 2020 until 31 October 2021.
15. The amount as referred to in paragraph 14 above, must be paid to the Applicant by no later than 31 August 2022.
Name: Clint Enslin
(ELRC) Arbitrator
Case No.: ELRC11-22/23EC
Date of Award: 6 July 2022
In the ARBITRATION between:
NAPTOSA obo Tryphina Ndamase
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mr A Mhlontlo
Applicant’s address:
Telephone: 082 308 3940
Telefax:
Respondent’s representative: Mr L Mashoai
Respondent’s address:
Telephone:
Telefax: 081 046 9892
DETAILS OF HEARING AND REPRESENTATION
1. This 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 : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 4 July 2022 and the proceedings were electronically recorded. The Applicant, Ms Tryphina Ndamase through her Union, NAPTOSA, referred an enforcement dispute to the ELRC. The Applicant was represented by Mr Aaron Mhlontlo, an official from NAPTOSA. The Respondent, Department of Education – Eastern Cape was represented by Mr Loyiso Mashoai, a Chief Education Specialist: Employee Relations.
ISSUE TO BE DECIDED
2. I am required to determine the following:
2.1 whether the Respondent has refused and/or failed to pay the Applicant an acting allowance, and if so,
2.2 whether same is in breach of the Collective Agreement, and if so,
2.3 determine appropriate relief
BACKGROUND TO THE ISSUES
3. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
3.1 The Applicant has been employed, by the Respondent, as a post level 1 educator since 24 April 2002.
3.2 The Applicant earns R338 472 per annum
3.3 The Applicant was instructed to act as Principal of Mazama Senior Secondary School from 10 November 2020 until 31 October 2021 and she in fact did perform such functions for the said period.
3.4 The Applicant has complied with all requirements in order for the acting allowance to be payable to her.
3.5 She is entitled to be paid an acting allowance of R77 925 for the period that she acted.
3.6 The amount in paragraph 3.5 above, less normal deductions, is owing to the Applicant and has not been paid as yet.
3.7 The basis of the claim is ELRC Resolution 8 of 2001 read with PAM chapter C.4
SURVEY OF EVIDENCE AND ARGUMENT
4. All the facts in this matter are common cause between the parties. The parties were nevertheless asked if they wished to add anything, however, both indicated that they had nothing to add.
ANALYSIS OF EVIDENCE AND ARGUMENT
5. Clause 69.1, of the ELRC Constitution, provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
6. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
7. Clause 69.6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
8. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
9. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”
10. Clause 4 of ELRC Resolution 8 2001 confirms that the agreement applies to and binds the employer and all employees of the employer as defined in the Employment of Educators Act, 1998 (as amended), excluding employees on post level 6 as well as those on SMS, whether such employees are members of trade union parties to this agreement or not.
11. It is common cause that the Applicant qualified for and was entitled to be paid an acting allowance for the period in question and that such payment has not taken place. The quantum of such allowance, for the period in question, is also common cause.
12. It is, to my mind, clear that the Respondent has refused and/or failed to comply with ELRC Resolution 8 of 2001 read with PAM chapter C.4. As such the Respondent is in breach of the said Collective Agreement.
AWARD
13. The Respondent, the Department of Education: Eastern Cape is in breach of ELRC Resolution 8 of 2001, read with PAM chapter C.4, by not paying the Applicant her acting allowance for the period of 10 November 2020 until 31 October 2021.
14. The Respondent, the Department of Education: Eastern Cape is ordered to pay the Applicant, Ms Tryphina Ndamase (persal number 53112202) the amount of R77 925, less normal deductions, as her acting allowance for the period of 10 November 2020 until 31 October 2021.
15. The amount as referred to in paragraph 14 above, must be paid to the Applicant by no later than 31 August 2022.
Name: Clint Enslin
(ELRC) Arbitrator