ELRC639-22/23NC

Panelist: Sally-Jean Pabst
Case No.: ELRC639-22/23NC
Date of Award: 25 January 2023

In the ARBITRATION between:

SAOU obo PHILANDER, Ms Theoline Jane
(Union / Applicant)

and

Education Department of Northern Cape
(Respondent)

Applicant: Email: theolinephilander29@gmail.com
Persal number: 56605358

Applicant’s representative: Ms Lize-Mari Mazzoncini - SAOU
Email: vvvnk2@saou.co.za


Respondent’s representative: Mr Ricardo Britz – DOE NC
Email: ricardobritz@ncdoe.school.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration to the Education Labour Relations Council (ELRC) for enforcement of a Collective Agreement – failure by the Respondent to pay the Applicant an acting allowance entitled to in terms of in terms of the Personnel Administrative Measures (“the PAM”).
2. The arbitration was conducted and concluded virtually via Zoom on 17 January 2023, and video-recorded with the consent of the parties.
3. The Applicant was present and represented by Ms Lize-Mari Mazzoncini, an official from the South African Teachers’ Union (SAOU).
4. The Respondent, the Department of Education of the Northern Cape, was represented by the Respondent’s Assistant Director Labour Relations in the Namakwa District, Mr Ricardo Britz.
5. The parties submitted into evidence the minutes of the pre-arbitration conference, the PAM document relied upon, as well as a document with monetary calculations of the amount outstanding. All was agreed between the parties as being what it purports to be.
6. The parties submitted verbal closing arguments at the conclusion of the arbitration proceedings.

ISSUE TO BE DECIDED

7. I have to determine whether or not the Applicant is entitled to the acting allowance she claims in terms of the PAM. If she is entitled thereto, I must then determine whether or not the Respondent indeed failed to pay her this acting allowance for the period she claims.

BACKGROUND

8. The Applicant, Ms Philander is a Post Level 1 Educator Intermediate Phase in service of the Northern Cape Department of Education (NCDOE) Namakwa District at St Philomena, Onseepkans, in the Northern Cape. The Applicant has been serving in the employ of the NCDOE since 1 January 2018, and is currently earning R 297,156.00 per annum.

SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE
9. The Applicant, Ms Philander wisheed to claim R 60,239.25 in acting allowances in terms of her acting as HOD during the year 2022, from 1 January 2022 to 31 December 2022. This amount is set out in the written calculations entered into evidence. She was supposed to be on the notch of R 364,599.00 per annum acting as HOD (Departmental Head).
10. The acting allowances outstanding are set out as follows:
10.1. R 5,093.75 (per month) X 3 months (Jan, Feb & Mar 2022) = R 15,281.25.
10.2. R 5,246.50 (per month) X 3 months (Apr, May & June 2022) = R 15,739.50.
10.3. R 4,869.75 (per month) X 6 months (July to Dec 2022) = R 29,218.50.
10.4. R 15,281.25 + R 15,739.50 + R 29,218.50 = R 60,239.25.
11. The Applicant further derives her entitlement to the acting allowance from the PAM gazetted on 9 September 2022 dealing with Acting Allowances at Chapter C.4, which in terms of section 69 of the ELRC Constitution is deemed a Collective Agreement.
12. The Applicant testified that the school principal assured her that the Namakwa District Office of the NCDOE did receive all the necessary documentation for her to act in the position as HOD.
13. As further background in support of the Applicant’s case it was brought to my attention that the Applicant, a year back, also disputed not receiving this very same acting allowance for the year of 2021. To this, the Applicant succeeded and received her acting allowances in April 2022 in terms of the arbitration award rendered in her favour under case number ELRC815-21/22NC.
14. The amount the Applicant is claiming in terms of the PAM at C.4 is the difference between what she was paid and what she was entitled to be paid, for the 12 months period. The difference amounts to R 60,239.25.

RESPONDENT’S EVIDENCE
15. The Respondent representative Mr Britz, testified that he confirmed the Applicant is indeed entitled to the amount of R 60,239.25 in acting allowances from the Department of Education of the Northern Cape Namakwa district for the 12 months period from from 1 January 2022 to 31 December 2022.
16. The Respondent confirmed that the school indeed submitted the appropriate documentation to the NCDOE for Ms Philander to act in the HOD position, therefore the Applicant should have received her acting allowances in terms of the PAM as a Collective Agreement, but the Respondent failed to effect the payment.

ANALYSIS OF EVIDENCE AND ARGUMENT

17. I am in full agreement with both parties that the Applicant in this matter is entitled to the acting allowance claimed from the Respondent. The PAM document, at chapter C.4, supports this contention.
18. It is common cause between the parties that the Applicant acted as HOD during the entire year of 2022 and is accordingly entitled to the accompanying acting allowance. Understandably, the Applicant expected that the Respondent would pay her for acting in the position for the period of 2022.
19. The Respondent also confirmed all the evidence brought by the Applicant regarding her entitlement, and confirmed that the Respondent has to date failed to pay the outstanding acting allowances to her. Therefore the matter is unquestionably brought on an unopposed basis.

AWARD
20. The Respondent, the Department of Education of the Northern Cape, failed to pay the Applicant, Ms Theoline Jane Philander, the acting allowance she is entitled to for the period she acted as HOD from the 1st of January 2022 to the 31st of December 2022, and this in breach of chapter C.4 of the PAM Collective Agreement.
21. The Department of Education of the Northern Cape must pay Ms Theoline Jane Philander with Persal Number 56605358 the amount of R 60,239.25 in acting allowances by no later than 20 March 2023.


Commissioner Sally-Jean Pabst
ELRC Arbitrator