ELRC 745 – 21/22EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD ONLINE
CASE NO: ELRC 745 – 21/22EC
In the matter between:

NAPTOSA obo S N BOOYSE, APPLICANT
(EMPLOYEE)

and

DEPARTMENT OF EDUCATION EASTERN CAPE RESPONDENT
(EMPLOYER)

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration took place on 16 August 2021. Adv Saayman, from NAPTOSA, represented the applicant. Mr Xhalisile, from the Department’s employee relations office, Eastern Cape, Nelson Mandela Bay, represented the respondent.


2. The hearing was held on a virtual platform and recorded accordingly.

3. I marked the applicant’s bundle of documents Exhibit “A” and the respondent’s bundle Exhibit “B”.


ISSUE IN DISPUTE

4. I must decide whether the applicant is entitled to the payment of capped leave and pro-rata bonus.


BACKGROUND TO THE DISPUTE

5. The applicant was granted permission to retire in accordance with Section 10 (3)(a) of the Employment of Educators Act 76 of 1998 read with the Government Employee’s Pension Fund laws,1996, as amended. The applicant’s services with the respondent accordingly terminated on 30 April 2021.

6. In a letter addressed to the applicant dated 10 March 2021, the respondent confirmed that arrangements were being made for the payment of the applicant’s pension benefits, leave gratuity and pro-rata bonus . The applicant alleges that her capped leave pay and pro-rata bonus for the period 01 February to 30 April 2021 has to date not been paid.

7. The applicant accordingly referred a dispute to the ELRC in terms of PAM Chapter H.4.5.4 and PCBC Resolution NO. 3 of 1999 seeking payment of her unpaid capped leave and pro-rata bonus. The dispute remained unresolved at conciliation and was referred to arbitration, before me .


SUMMARY OF EVIDENCE

8. The applicant testified that she retired from her position on the 30 April 2021. She was not charged for misconduct nor was she dismissed. She occupied the post of a master teacher, post level 1 with persal number 51684713. The applicant earned a salary of R39 384.00 per month. She was not paid her bonus for the year 2021 for the months of January, February, March and April 2021. She alleges that she is entitled to a pro-rata bonus. Moreover, she was not paid capped leave gratuity for a period of 26.85 days.

9. The calculation of her capped leave and pro-rata bonus is set out in the applicant’s calculations. . The calculation reflects that the applicant is entitled to an amount of R48 672.20 in respect of capped leave and an amount of R9 846.00, in respect of pro-rata bonus. In the circumstances the applicant alleges that she is entitled to payment of the total amount of R58 518.20.

10. The applicant seeks relief in the form of payment of the amount of R58 518.20.

11. Mr Morne Dueisani, the respondent’s accountant, testified on behalf of the respondent. The applicant’s claim for capped leave and pro-rata bonus is not in dispute. The respondent submitted applicant’s claim to the provincial office on 24 November 2021. The provincial office however informed the district office that payment must be made on the BAS System because the applicant has been out of service for more than one year. The district office is in receipt of a letter from the national office directing that with effect from 02 March 2022 all leave gratuity payments must be suspended.

12. In the premises provincial treasury has suspended all payments on the BAS System. Unfortunately, he cannot say when payment will be made to the applicant. The calculations presented by the applicant’s representative is correct but is subject to a final audit by the provincial office in respect of leave days.


ANALYSIS OF EVIDENCE AND ARGUMENT


13. It is common cause that the applicant is entitled to payment of capped leave and pro-rata bonus. The respondent’s representative and accountant do not dispute the figures arrived at by the applicant’s representative. The respondent however records that final payment will be subject to an audit by provincial office. It is possible that the applicant’s payment for capped leave days may be reduced by the audit.

14. The respondent’s representative and the respondent’s accountant are not in a position to dispute the calculations presently. I accept that the final calculations of the applicant’s capped leaved days may differ slightly from that claimed by the applicant. In the premises I record that the applicant is entitled to the payment of capped leave subject to her claim being audited. The applicant is entitled to the payment of pro-rata bonus as claimed.

15. I accordingly find on the evidence before me that the applicant is entitled to the payment of caped leave in the amount of R48 672.20 with such amount being subject to audit and the deduction of any days for which the applicant is not entitled to capped leave pay. It is common cause that the applicant is entitled to pro-rata bonus in the amount of R9 846.00.

AWARD

I accordingly make the following award:

a) The respondent is ordered to pay to the applicant an amount of R9 846.00 in respect of pro-rata bonus.

b) The respondent is ordered to pay to the applicant unpaid capped leave pay in the amount of R48 672.20 subject to the deduction of any leave days to which the applicant is not entitled.

c) The aforesaid amounts must be paid to the applicant within 30 days from date of service of this award on the respondent.


31 August 2022

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay