ELRC193- 22/23 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC193- 22/23 EC

In the matter between

NOKWANDA RODA MVEMVE Applicant

and

DEPARTMENT OF EDUCATION-EASTERN CAPE Respondent

ARBITRATOR: YOLISA NDZUTA

HEARD: 17 AUGUST 2022

DATE OF AWARD: 23 SEPTEMBER 2022


SUMMARY: Despite clause 69.5 an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act; The Employment of Educators Act; the Personnel Administration Measures (PAM), or any regulations or subordinate legislation promulgated by the Minister of Basic Education, or MEC for Education in the respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment


SUMMARY: Whether the Applicant has been subjected to an Unfair Labour Practice by the employer’s refusal to remunerate her for her last month of active service.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down for arbitration on the 17th of August 2022.

2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down.

3. The Applicant, Nokwanda Roda Mvemve was represented by Adv Douglas WM Rwentela who was instructed by Lumka Mehlomakhulu Attorneys while the respondent, Department of Education: Eastern Cape was represented by Mr Sakhiwo Kralo.

4. The parties confirmed at the commencement of the proceedings that there weren’t any preliminary issues however prior to the cross-examination of the applicant the respondent’s representative raised a jurisdictional challenge which will be addressed herein below.

5. The applicant advised that they had a bundle of documents which they would be relying one, the respondent confirmed receipt of the bundle and advised that they wouldn’t object to the bundle nor would be filing their own bundle.


THE ISSUE IN DISPUTE

6. I am tasked to determine whether the Applicant is subject to an unfair labour practice in that in relation to the employer’s (the respondent) refusal to remunerate her (the applicant) for her last month of service.

THE BACKGROUND TO THE DISPUTE

7. In these proceedings the Applicant referred a dispute pertaining to an alleged unfair labour practice.

8. The Applicant was employed by the Respondent as an educator at Imbasa Primary School.

9. The applicant had applied for ill-health retirement which was being considered by the respondent.

10. The applicant worked whilst awaiting the outcome of the leave application and took leave on several occasions while awaiting the final outcome of the retirement application.

11. When the applicant’s ill-health retirement was approved she was in active employment and she was only advised of same approval after working for an entire month post the approval.


SURVEY OF EVIDENCE AND ARGUMENT

12. The applicant’s referral is one of an unfair labour practice therefore the onus to prove rests on the applicant. Correspondingly, the applicant would lead its case first then the respondent would follow in response.

13. The applicant testified in support of its case and her testimony can be summarized as follows:

13.1 She had applied for ill-health retirement in April 2019 as her health was deteriorating however because it had not been authorised she then took long -term leave pending the ill-health retirement.
13.2 On or about September 2020, she returned to active duty because her health was improving.
13.3 Prior to her return to active duty, she consulted the officials of the respondent in compliance with the applicable workplace rules of the employer.
13.4 After submitting the necessary documents per the direction of one Mrs Karen Ras an official of the respondent, she returned to active employment.
13.5 Part of being in active employment meant that she would record her attendance at school on the register which same register was submitted to the employer to conclude whether or not an educator had worked for the month they had to be remunerated.
13.6 She worked until end of May 2021 and received her salary for each month until end of April 2021.
13.7 When her salary for May 2021 was not received, she queried same with the principal and other officials of the respondent wherein which she was referred to correspondence relating to her application for ill-health retirement.
13.8 She was only advised of her ill-health retirement being approved on or about June 2021.
13.9 Under cross-examination the applicant confirmed that she followed all due processes before her application for ill-health was approved furthermore she ensured to communicate with the officials of the respondent throughout the process however communication from the respondent (as an employer) was not forthcoming.

14 No other witness was called to attest on behalf of the applicant’s case. The applicant then closed it case and the respondent was granted an opportunity to present evidence in support of its case.

15 The respondent called two (2) witnesses to attest in support of its case, one Mrs Karen Ras and one Mr M P Mayekiso. A summary of their testimony is hereinunder.

16 Mrs Ras testified that:

16.1 She was the principal pension officer and had at some stage worked at the leave section within the respondent;
16.2 She knew of the applicant’s case.
16.3 When asked about the letter approving the applicant’s ill-health retirement, she testified that she cannot advised when the letter was drafted. She then testified that normally the letter is drafted then when it is signed and ready for dispersing, the school’s principal is contacted to share the applicant’s details in order to arrange delivery / collection of the letter.
16.4 When asked why the applicant’s letter was delayed she referred to the fact that there were logistical issues.
16.5 Communication and correspondence from the respondent was delayed considering the logistic and administrative issues endured by the respondent during the covid-19 disaster management regulations.
16.6 When asked whether the respondent knew of the applicant’s return to active service, she testified that the applicant would have completed an attendance register which would be captured in to the SASAMS system and the physical registers would be submitted to the local or regional office too. She raised that the applicant’s return to active service pending the applicant for ill-health retirement required that the respondent be informed whether or not the application for ill-health retirement is withdrawn.
16.7 Under cross-examination she was asked whether the applicant was wrong returning to active employment pending the application for ill-health retirement considering that in the interim the applicant was only granted temporary incapacity leave, to this she confirmed that the applicant’s action (of returning to active employment) was reasonable and acceptable.
16.8 When asked why the respondent did not know of the applicants return, she stated that the principal as an official did not advise her department.
16.9 She confirmed that the department received the attendance register confirmed the attendance of the applicant to work daily.
16.10 She confirmed that considering that the attendance register verifies that the applicant worked for the month of May 2021, the applicant should be remunerated for such a month.

17 Mr Mayekiso testified as follows:
17.1 He is the head master (principal) of Imbasa Primary School since 2018.
17.2 He remembers assisting the applicant with her application for ill-health retirement.
17.3 He also remembers receiving the response from the respondent (the employer) regarding her query relating to her salary from the deputy director (Mrs Mali) as such he furnished her with same response and advised her that the dispute requires a referral to the honourable council.
17.4 Under cross-examination he confirmed that he had played his role by advising the respondent of the applicants return to service pending the ill-health retirement.
17.5 He also confirmed that normally when one applies for ill-health retirement, one would take temporary incapacity leave and would receive a letter of termination timeously however until the termination letter is delivered to them.
17.6 He confirmed that response by Mrs Mali was only received by the applicant on or about the 28th of September 2021 although it was dated the 2nd of August 2021.
17.7 He placed on record that the applicant was not timeously advised of the approval of her ill-health retirement.

18 I now turn to the analysis of the submissions in relation to the applicable law.


ANALYSIS OF THE SUBMISSIONS

19 It is trite that when a party refers an unfair labour practice, same party bears the onus to prove (on a balance of probabilities) that such unfair labour practice exists and same is inflicted against them.

20 Considering this matter, the arguments and submissions before myself will be assessed juxtaposed to the above premise.

21 Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”

22 The Applicant referred this dispute on account of section 186(2)(a) of the Labour Relations Act 66 of 1995. Similarly the respondent raised a jurisdictional challenge arguing that disputes like the one referred by the applicant can only be presided over by a Labour Court judge.

23 In the their submissions the Applicant referred to the constitution of the honourable council more specifically clause 69 of same constitution which advises under 69.2.1: “… a collective agreement of the council is deemed to include :

any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the collective agreement in terms of section 49(1) of the BCEA” ..

24 The above clause furthermore in 69.6 advises …
“… an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Condition of Employment Act…”

25 Granted the dispute before me is not one that normally conforms to the strict statutory parameters of section 186 (2) however if we consider clause 69.6 read with clause 7.6 of the ELRC Constitution the jurisdictional challenge fails as the applicant had not referred the dispute to another tribunal other than the honourable commission. In the premise of the latter, the honourable commission enjoys jurisdiction over the dispute.


26 It cannot be disputed that the applicant executed service during the month of May 2021 and the respondent knew that the applicant was working during that month. Similarly the evidence confirms that the applicant was not advised of her ill-health retirement being approved before May 2021.

27 The Applicant has proven that the conduct of the respondent is unjustifiable and in terms of Clause 69.6 they are obliged to pay the Applicant in that she rendered services for which he was entitled to be remunerated.

28 In the premises I make the following award.


AWARD

29 I find that the employee has proven that the Respondent is indebted to her for the payment of remuneration for the month of May 2021.


30 The Respondent is ordered to pay the Applicant an amount of R 31 877.94 that is subject to normal statutory deductions to be paid by no later than 31 October 2022.

Yolisa Ndzuta
Panelist: ELRC