ELRC66-22/23EC
Text
ELRC66-22/23EC
Award Date:
21 July 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM DIGITAL PLATFORM
Case No ELRC66-22/23EC
In the matter between
SAOU obo Aboud, Elsa Applicant
and
Department of Education: Eastern Cape Respondent
Arbitrator: Pumeza Ndabambi
Heard: 21 July 2022
Date of award: 11 August 2022
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to benefits in terms of section 186(2)(a) – whether non-payment of salary adjustment and non-adjustment of benefits (pension), following retirement constitutes an unfair labour practice.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995, (the LRA). The Applicant, Ms Elsa Aboud, was represented by Ms Stephanie Reid, an official of SAOU and the Respondent, Department of Education: Eastern Cape was represented by Mr Lusapho Ndzongo, the Labour Relations Officer.
2. The proceedings were held virtually through Zoom and were recorded electronically on the same virtual platform (Zoom).
3. Both parties agreed to submit written closing arguments by no later than 28 July 2022 and both met the deadline.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the non-payment of a salary adjustment and the consequent non-adjustment of the Applicant’s pension, amounts to an unfair labour practice, and if so, determine an appropriate remedy.
BACKGROUND TO THE DISPUTE
5. The Applicant was an Educator and retired with effect from 31 January 2021. The Applicant was evaluated for IQMS but did not receive payment, as a result she retired on an incorrect salary notch. The Applicant seeks payment of her salary adjustment and her pension to be adjusted. That is the cause of action in this arbitration.
EVIDENCE AND ARGUMENT
Applicant’s Version
6. Ms Elsa Aboud (the Applicant) retired effective 31 January 2021. She was evaluated for IQMS for 2019/2020 and did not receive payment. Her IQMS payment was made when she retired.
7. Under cross-examination she confirmed her retirement as of 31 January 2021 and her notch progressions as follows: -
a. 2021/01/31 Dept Head Notch R425 685
b. 2019/07/01 Dept Head Notch R425 685
c. 2019/07/01 Dept Head Notch R423 609
d. 2019/04/01 Dept Head Notch R419 394
e. 2018/07/01 Dept Head Notch R396 777
f. 2018/04/01 Dept Head Notch R391 677
g. 2017/04/01 Dept Head Notch R367 773
Respondent’s Version
8. The Respondent’s evidence was led through one witness, Ms Bianca Valentine (Ms Valentine) and a bundle of documents. Ms Valentine testified that she is the Administration Clerk whose duties are to assist with receiving documents for IQMS, capturing them on the system. She confirmed that the Applicant’s retirement in January 2021 meant that she would be closed on PERSAL and only payment up to and including the last day would be considered. Should there be any payments due they would be paid on the BAS payroll system.
9. According to the system, scores for 2019/2020 financial year were processed and payments made. The reason there would be no payment for 2021 is that she retired in January and the performance cycle ends in March in line with the financial year. The Applicant therefore did not finish the cycle and does not qualify for IQMS payments.
10. Under cross-examination Ms Valentine stated that the financial year starts on 1 April and the Applicant worked nine (9) months of that financial year and does not qualify for an adjustment.
ANALYSIS OF SUBMISSIONS
11. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove the conduct complained of.
12. In this matter it is common cause that the Applicant retired with effect from 31 January 2021. It is also common cause that the Applicant at the time of retirement did not finish the financial year as it ends in March of every year. The Applicant believes that she should have received a salary adjustment that would move her notch up and would, as a result, retire on a higher notch than the one she retired on. This is based on her understanding of IQMS, the Respondent’s performance evaluation system.
13. The Respondent places in dispute the Applicant’s understanding of what IQMS provides. The contention is on the fact that in order for an Educator to qualify for a salary adjustment, one has to be assessed for a full financial year. The Applicant’s retirement, nine (9) months into the financial year, disqualifies her for a notch adjustment. This fact was not disputed by the Applicant, nor the provisions of the performance evaluation system either.
14. It therefore follows that the Applicant did not serve the full financial year under consideration and does not qualify for a salary adjustment. At this point I do not find any failure by the Respondent to adjust the Applicant’s salary. It therefore follows that the Applicant retired on a correct salary notch, in the absence of any evidence confirming entitlement in terms of any employment policy or practice.
15. In the circumstances I do not find that the Respondent’s action affected the Applicant’s benefits. I find therefore, that the Respondent’s actions did not amount to an unfair labour practice. In the circumstances, the Applicant has failed to discharge the onus as required to prove that the employer committed an unfair labour practice.
16. In the circumstances, I make the following award:
AWARD
17. The Respondent, Department of Education, did not commit an unfair labour practice in not adjusting the Applicant’s, Elsa Aboud’s salary.
18. The Applicant, Ms Elsa Aboud, is not entitled to any relief.
PUMEZA NDABAMBI
PANELLIST
Case No ELRC66-22/23EC
In the matter between
SAOU obo Aboud, Elsa Applicant
and
Department of Education: Eastern Cape Respondent
Arbitrator: Pumeza Ndabambi
Heard: 21 July 2022
Date of award: 11 August 2022
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to benefits in terms of section 186(2)(a) – whether non-payment of salary adjustment and non-adjustment of benefits (pension), following retirement constitutes an unfair labour practice.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995, (the LRA). The Applicant, Ms Elsa Aboud, was represented by Ms Stephanie Reid, an official of SAOU and the Respondent, Department of Education: Eastern Cape was represented by Mr Lusapho Ndzongo, the Labour Relations Officer.
2. The proceedings were held virtually through Zoom and were recorded electronically on the same virtual platform (Zoom).
3. Both parties agreed to submit written closing arguments by no later than 28 July 2022 and both met the deadline.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the non-payment of a salary adjustment and the consequent non-adjustment of the Applicant’s pension, amounts to an unfair labour practice, and if so, determine an appropriate remedy.
BACKGROUND TO THE DISPUTE
5. The Applicant was an Educator and retired with effect from 31 January 2021. The Applicant was evaluated for IQMS but did not receive payment, as a result she retired on an incorrect salary notch. The Applicant seeks payment of her salary adjustment and her pension to be adjusted. That is the cause of action in this arbitration.
EVIDENCE AND ARGUMENT
Applicant’s Version
6. Ms Elsa Aboud (the Applicant) retired effective 31 January 2021. She was evaluated for IQMS for 2019/2020 and did not receive payment. Her IQMS payment was made when she retired.
7. Under cross-examination she confirmed her retirement as of 31 January 2021 and her notch progressions as follows: -
a. 2021/01/31 Dept Head Notch R425 685
b. 2019/07/01 Dept Head Notch R425 685
c. 2019/07/01 Dept Head Notch R423 609
d. 2019/04/01 Dept Head Notch R419 394
e. 2018/07/01 Dept Head Notch R396 777
f. 2018/04/01 Dept Head Notch R391 677
g. 2017/04/01 Dept Head Notch R367 773
Respondent’s Version
8. The Respondent’s evidence was led through one witness, Ms Bianca Valentine (Ms Valentine) and a bundle of documents. Ms Valentine testified that she is the Administration Clerk whose duties are to assist with receiving documents for IQMS, capturing them on the system. She confirmed that the Applicant’s retirement in January 2021 meant that she would be closed on PERSAL and only payment up to and including the last day would be considered. Should there be any payments due they would be paid on the BAS payroll system.
9. According to the system, scores for 2019/2020 financial year were processed and payments made. The reason there would be no payment for 2021 is that she retired in January and the performance cycle ends in March in line with the financial year. The Applicant therefore did not finish the cycle and does not qualify for IQMS payments.
10. Under cross-examination Ms Valentine stated that the financial year starts on 1 April and the Applicant worked nine (9) months of that financial year and does not qualify for an adjustment.
ANALYSIS OF SUBMISSIONS
11. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove the conduct complained of.
12. In this matter it is common cause that the Applicant retired with effect from 31 January 2021. It is also common cause that the Applicant at the time of retirement did not finish the financial year as it ends in March of every year. The Applicant believes that she should have received a salary adjustment that would move her notch up and would, as a result, retire on a higher notch than the one she retired on. This is based on her understanding of IQMS, the Respondent’s performance evaluation system.
13. The Respondent places in dispute the Applicant’s understanding of what IQMS provides. The contention is on the fact that in order for an Educator to qualify for a salary adjustment, one has to be assessed for a full financial year. The Applicant’s retirement, nine (9) months into the financial year, disqualifies her for a notch adjustment. This fact was not disputed by the Applicant, nor the provisions of the performance evaluation system either.
14. It therefore follows that the Applicant did not serve the full financial year under consideration and does not qualify for a salary adjustment. At this point I do not find any failure by the Respondent to adjust the Applicant’s salary. It therefore follows that the Applicant retired on a correct salary notch, in the absence of any evidence confirming entitlement in terms of any employment policy or practice.
15. In the circumstances I do not find that the Respondent’s action affected the Applicant’s benefits. I find therefore, that the Respondent’s actions did not amount to an unfair labour practice. In the circumstances, the Applicant has failed to discharge the onus as required to prove that the employer committed an unfair labour practice.
16. In the circumstances, I make the following award:
AWARD
17. The Respondent, Department of Education, did not commit an unfair labour practice in not adjusting the Applicant’s, Elsa Aboud’s salary.
18. The Applicant, Ms Elsa Aboud, is not entitled to any relief.
PUMEZA NDABAMBI
PANELLIST