ELRC525-22/23FS

IN THE ELRC ARBITRATION
BETWEEN:

Peter Wille Applicant
and
The Department of Education: Free State Province Respondent

ARBITRATION AWARD

Case Number: ELRC525-22/23FS

Arbitration date: 25 November 2022

Date of Award: 10 December 2022

Pitsi Maitsha
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION
1. On 25 November 2022 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Peter Wille, he was in attendance, and he represented himself. The respondent is The Department of Education: Free State Province and was represented by Mr. Thulo Tsunke, the Labour Relations Officer.

3. The parties gave the evidence under oath. The proceedings were held on Zoom to observe the Covid-19 regulations. The proceedings were digitally recorded using the recording facility available on Zoom.
ISSUE TO BE DECIDED
4. I am required to determine whether the respondent owed the applicant any amount. In the event I find that the respondent owes the applicant any amount, order the respondent to adjust the applicant’s salary notch correctly; remunerate the applicant all money due to him and the respondent be liable for all tax deductions on the above payments.
BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:
5.1 In terms of common cause facts:
5.1.1 The respondent has employed the applicant on 01 January 2008 in the capacity of Post Level1 Educator at Bohmer Special School. He is teaching Mathematics He is also qualified as a psychologist for children. He further studied N Go’s diploma with the University of Free State.

6. In September 2022 the respondent had paid the applicant an amount of R2 080,00 towards his salary, instead of paying his salary in full in the amount of R24 500,00. No explanation was given to him for the short payment.
7. He did not receive backpay on increases effectively from April 2022.
ISSUES THAT ARE IN DISPUTE
8. Whether the reason not to pay the applicant’s salary in full was fair.
9. Whether the respondent’s decision not to pay the applicant salary increase with back pay from April 2022 was fair; and
10. Whether the procedure not to back pay the applicant’s salary increase and his September 2022 salary in full was fair.
11. Aggrieved by a failure to pay the outstanding amount, the applicant referred the dispute of interpretation and application of Collective Agreement to the ELRC.
THE EVIDENCEOF THE APPLICANT
12. He testified that his Attorney sent a letter to the respondent requesting the balance of his salary to be paid by not later than 7 October 2022, but the respondent did not reply that letter. He testified that he did not go back to the school because the HOD had told him that he must not go back to Bohmer School, he would find him alternative school expeditiously.

13. He testified that under cross examination that in February 2022 he was still under suspension, he could not report to work. He testified that he was told by the HOD that if he responded to the letter asking him why he was not at work, the respondent would not deduct his salary. He did respond to the letter, but the respondent did not say anything thereafter.
ANALYSIS
14. This matter concerns the interpretation and application of the Collective Agreement” relating to non-compliance of payment of salary. First and foremost is to establish the jurisdiction of this Council to arbitrate this dispute. In terms of clause 68 of the ELRC Constitution, a party to a dispute concerning the interpretation or application, or non-compliance of a Collective Agreement including the provisions of the “BCEA”, may refer such dispute to the Council for the purposes of conciliation and arbitration.

15. Having regard to the above, I am of the view that the Council does have the jurisdiction to arbitrate this dispute on the basis that a failure by the respondent to pay the applicant’s salary in full constitutes interpretation or application of the Council’s Constitution.

16. Turning to the main dispute before me, it is common cause that at the end of September 2022 the respondent did pay the applicant an amount of R2 080,00 which was his salary. According to the salary slip submitted by the applicant before me, his gross salary is R31 362,82 per month. Evidently, the respondent had short paid him in September 2022 salary pay-out.

17. On 4 October 2022 the applicant’s Attorneys, Bezuidenhout Attorneys, wrote a letter to the respondent wherein a relevant paragraph states: “Your urgent reply regarding the payment of the balance of our client’s salary on or before 7 October 2022 is awaited.”

18. It is not disputed that the respondent did not respond to this letter, nor comply with the request. There was no intention on the part of the respondent to correct its default not to pay the balance of the applicant’s salary.
19. It seems that before the decision not to pay the applicant’s salary in full was taken, the respondent did communicate with the applicant asking him to give reasons as to why it was not supposed to deduct his salary at the end of September 2022. The applicant was informed that should he respond quickly, then the respondent would not deduct his salary at the end of September 2022. I wish to record that the applicant did provide the respondent with the requested reasons, but there was no response from the respondent to confirm or decline the same. The evidence before me demonstrate that the respondent capriciously and arbitrarily took the decision to short pay the applicant and placed him in serious financial constraints and undignified circumstances.

20. Given the above, I am of the view that a lack of explanation by the respondent not to pay the applicant his September 2022 salary in full is an infringement of his Constitutional right and violation of labour laws. In terms of section 23 (1) of the Constitution of the Republic of South Africa, everyone has the right to fair labour practices. The respondent had subjected the applicant to unfair labour practice when shot paying him and by so doing, not only that it violated his right in terms of the Constitution, but also in terms of the “LRA”.

21. The applicants did not call any additional witnesses and had submitted bundle of documents [hereinafter referred to as bundle A]. Finally, the respondent abandoned its case.

22. Having considered the evidence before me, I am of the view that the relief sought by the applicant should succeed.

23. Turning to the remedy, I am of the view that the balance of the applicant’s salary in the amount of R28 282, is appropriate.

24. In the premises I find the following award competent.
AWARD
25. I find the applicant, Peter Wille, has succeeded to establish that the respondent, Education Department: Free State Province, has failed to comply with the ELRC Constitution.

26. Asa result of the above, I order the respondent, Education Department: Free State Province, to pay the applicant, Peter Wille, an amount of R28 282-82 (twenty-eight thousand two hundred and eighty-two rands eighty-two cents)

27. The above amount is payable to the applicant by not later than 20 December 2022.


P. Maitsha
ELRC Panelist