ELRC567-22/23FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT BLOEMFONTEIN

Case No: ELRC567-22/23FS

In the matter between

Mpho Motingoe Applicant

And

Education Department of the Free State Respondent

Issue: Unfair Labour Practice – Provision of Benefits

Arbitrator: Dr. GC. Van Der Berg
Award: 01 February 2023

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration case was scheduled on 20 January 2022 at 09:00 via video conference from Cape Town. The proceedings were both digitally and manually recorded. The applicant, Mpho Motingoe, was represented by E Halgreen, an attorney from De Wet Wepener Attorneys. The Respondent, Education Department of the Free State, was represented by Vuyisile Gubuza. The applicant alleged an unfair labour practice regarding benefits. The applicant is seeking to be paid home allowance savings from July 2015 up to January 2022 and alternatively back pay for the period not paid housing allowance. The respondent denied that an unfair labour practice was committed against the applicant.

Issue to be decided.
2. The applicant referred an unfair labour practice dispute regarding benefits in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended to the ELRC.

3. I am firstly required to determine whether the Respondent committed an unfair Labour practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA by non-payment of the home allowance savings from July 2015 up to January 2022.

4. In terms of appropriate relief if I find that the respondent committed an ULP: (1) Allocate to the applicant the amount for home allowance savings from July 2015 up to 31 January 2022.

Background to the Dispute
5. The applicant was employed since July 2011 at the Education Department of the Free State, District Lejweleputswa Education. It was on record that the applicant was a homeowner since July 2011, and she received R800-00 per month and it was later increased to R900-00 per month. In February 2015 Resolution 7 of 2015 was released and according to the amended resolution all employees who are homeowners will receive R1200-00 on condition that they have provided the title deed that they are homeowners or a lease agreement that they were tenants. The applicant could not provide any title deed and the last day for submission was 21 March 2022. She therefore forfeited the home allowance as homeowner. She was only paid the R900-00 per month as originally determined until January 2022 when she submitted a permission to occupy (PTO) and from February 2022, she was paid the homeowner allowance.

6. The applicant referred the dispute to ELRC with an application for condonation on 17 October 2022. A condonation ruling was issued on 29 November 2022 which granted the applicant condonation. The arbitration proceedings were set down for 20 January 2023.

7. The parties did not present opening statements but presented written closing statements, as agreed, on or before 30 January 2023. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument
Documentary evidence.
8. Only the applicant submitted a bundle of documents. The bundle of the applicant was marked as “A” pages 1-23. The respondent indicated that they are using the same bundle. The parties did not dispute the authenticity of the bundle.
Applicant’s evidence and arguments
The applicant, Mpho Motingoe, after having been sworn in, testified as follows:
9. She stated that she was employed on 1 March 2011. She was made aware that she must register for housing allowance when she joined the Free State department of Education. In July 2021 she went to Ammercosa and in 2015 she received another correspondence that she had to be re-registered as a homeowner. She told them that she is the homeowner since 2007 and she is still the homeowner, but she did not have a title deed.
10. When she told the respondent that she has no title deed they told her to register as a tenant and then she would fall under the group that have no title deed or need it. Alternatively, she must go to Bloemfontein and enquired how to get a title deed. When she could not provide a title deed or a lease agreement, she was told that she would only receive R900-00 per month and not R1 200-00 which was the housing allowance since 2015. She also visited the housing department after the correspondence that she has no title deed.
11. She was referred to page 3 of bundle “A” dated 03 March 2020 and she verified the date on the stamp as 27 January 2021. After she received this letter, she went to ask for help with the title deed and she visited the Scorpions. She also did not receive any title deed. She only received a PTO in January 2022 from the Scorpions. On page 2 dated 23 January 2022 is the confirmation of her enrolment on the letterhead of the Government Employees Housing Scheme (GEHS) to register for housing allowance, permission to occupy (PTO) and she got the housing allowance since February 2022.
12. She went several times to the Department of Education to enquire about her balance not paid on her savings account. She was told by Mr Maruping that it does not appear on the system. She explained to him that since 2015 she received only R900-00 and not R1200-00. She did not register as a tenant as she has no lease contract, and she was always the house owner. As tenant she would qualify for the savings. She testified that it is painful not to appear on the homeowner list and they were treating her as a subcontractor.
13. Under cross-examination the applicant confirmed that she was registered since July 2011 as a homeowner with a paid up house. She disagreed that she applied in July 2021 to be a tenant. She was since July 2011 up to July 2015 satisfied with her housing allowance of R800-00 that went up to R900-00. She was not fine with it since July 2015 when Resolution 7 of 2015 was implemented. The respondent blamed the problems with the title deed on her. She was aware of it and that there was a difference made between a tenant and a homeowner. All employees had to re-apply for one of the two categories. She went to Ammercosa House to apply as a homeowner.
14. She was referred to page 6 of the bundle “A” and paragraph 3.1 to 3.4 which read as follows: “A homeowner is: 3.1. An employee with registered title over a residential property with a mortgage bond or home loan; or 3.2. An employee with registered title over a property without a mortgage bond or home loan over such property; or 3.3. An employee residing on communal land with a valid permission to occupy (PTO) certificate shall be deemed to be a homeowner, and 3.4. An employee and/or his/her immediate family who /that is/are occupying the house in question”. This circular was dated 01 December 2015. She indicated that she falls under 3.3 in 2015 and this was denied by the representative of the respondent as she had no PTO from July 2015 up to January 2022. The applicant indicated that the PTO said that she was the owner of a house since 2007.
15. It was put to the applicant that the proof has to be as in paragraph 3 above and 4.1 and 4.2 which read as follows on page 7: “4.1. A completed and signed application form, attached thereto titled GEHS employee enrolment: housing allowances for homeowners; 4.2. the necessary proof that he/she is a homeowner as indicated in paragraph 3 and occupies the house concerned”. She has completed the application form in 2015, but in terms of 4.2 she could not provide any proof of homeowner. She said that she was expecting the respondent to save her money until she brings the proof of ownership.
16. She agreed that she applied for homeowner and the savings are only for tenants. She never applied as tenant. She agreed that the title deed was never given to her and not on a PTO in 2015.
17. Under re-examination she confirmed that she received the PTO in January 2022 and then received the full amount of R1500-00 per month as housing allowance.
Respondent’s evidence and argument
The witness of the respondent, RJ Maruping, Acting HR Officer at Housing Section, after having been sworn in, testified as follows:
18. The witness stated that he is aware of the housing allowances and administers it. The applicant did not qualify for the housing allowance since 2015 as she had to re-register as either a tenant or a homeowner (since July 2015). She was registered on the system as a homeowner with no bond since 2012 and received R800-00 per month allowance. According to resolution 7 of 2015 it was changed to R900-00. She was supposed to apply in 2015 as a homeowner or tenant and the requirements were clearly set out. The applicant did not apply to be a tenant and therefore the saving scheme was not part of her allowance. Neither did she have a title deed and it was decided to continue with the system prior to 2015 with the employees who neither rent nor have a title deed on the old system of R900-00 per month until providing a title deed or a PTO. The applicant was informed accordingly to return the application with attachments, and it was explained to her.

19. In the resolution in 2018 the PSCBC decided that if an employee does not have a title deed, they can ask for a PTO and the circular was sent to schools with all the relevant information. Between 2018 till 2021 she did not provide a PTO and only in January 2022 she presented a PTO, and she received the housing allowance of R1500-00 from February 2022. As homeowner no saving forms part of the process, but as tenant the employee qualified for savings of R300-00 per month.

20. Under cross-examination he confirmed that the applicant was on the system since March 2012 as a homeowner. It was put to him that the letter on page 1 to the applicant indicated that she was registered as a homeowner July 2011, and it was confirmed on page 2. It is confirmed that the applicant was neither in possession of a title deed nor in possession of a lease contract as tenant. He confirmed that the applicant visited him several times to enquire about housing allowance.

21. Under further cross-examination the witness confirmed that the applicant was receiving R800-00 as a paid up homeowner and that was increased to R900-00 in 2015. Resolution 7 of 2015 states in 4.5.6 that employees who are eligible to receive the housing allowance but do not own a house shall continue to receive R900-00. The difference between the total housing allowance and the R900-00 shall be divided into and accumulated in an individual link savings facility. The witness explained that the applicant could not provide either a title deed or lease agreement. To qualify for 4.5.6 the eligible employee must have registered as tenant.

22. Under re-examination he confirmed that under 4.1.4 on page 16 the employee must be registered with the GCHS. The continuation of the R900-00 per month allowance was explained to the applicant.
Closing arguments
23. Both the representatives of the applicant and the respondent sent written closing arguments by 30 January 2023 as agreed on 20 January 2023. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.



Analysis of evidence and argument

24. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter.

25. The applicant referred an unfair labour practice dispute in terms of 186(2) of the LRA. The applicant is alleging that the respondent is refusing to pay her the savings from the Individual Linked Savings Facility. It is common cause that the applicant has been employed by the respondent since 2011. The applicant has also been part of the Employee Housing Scheme since 2011, receiving an amount of R800-00 monthly which increased to R900-00 over time. It is further common cause that in July 2015 PSCBC Resolution 7 of 2015 came into effect. The resolution brought about several changes to the Housing Scheme for government employees.

26. The panellist is expected to determine whether the respondent committed an unfair labour practice (ULP) in terms of section 186 (2)(a) of the LRA and whether the applicant is entitled to the Individual Linked Savings Facility savings from July 2015 to January 2022 in terms of the provisions of Resolution 7 of 2015, if not, is the respondent liable for backpay to the applicant from July 2015 to January 2022.

27. An employee who alleged that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. She must do more than just demonstrate that she was a homeowner and qualified from July 2015 for the allowance. She must further prove that that she was eligible for the savings of R300-00 between R900-00 (old system) and R1-200-00 (new resolution system) between July 2015 up to January 2022.

28. The applicant testifies that during July 2015 the Principal at the school called all employees and informed them that all employees need to go to Ammercosa House in Welkom to sign documents for housing allowance. The applicant went and the persons who helped her, completed the forms and let her sign. She informed them that she owned a house, and they wanted a title deed and they said that they registered the applicant as a tenant until she can provide proof of ownership. She said that she had no contract agreement stating that she was a tenant. They never informed her about the PTO and where she can apply for the PTO.

29. The applicant went several times to the Department of Education in Welkom to enquire about her savings and she was informed in July 2015 that she is registered as a tenant and that she will get R900-00 per month and the difference will be diverted to the savings. She spoke to Mr Maruping who told her that her name does not appear on the system, and she explained that she only received R900-00 per month from July 2015. In cross-examination the applicant testified that when she submitted her PTO in January 2022, The PTO stated that she was a homeowner from 2007. On 15 February 2022, she received the full amount of the housing allowance.

30. It is the evidence of the witness of the respondent that the applicant is not entitled to the housing allowance as per Resolution 7 of 2015 as the applicant did not comply with the requirements and that she received the housing allowance based on the old resolution of 2011. She completed the application form in 2015 for housing allowance but could not provide any proof of a homeowner and neither as a tenant. He further testified that amendments for persons living in rural areas under PTO, was only done in late 2020’s and not when the Resolution 5 of 2015 was issued.

31. It is the further testimony of the witness of the respondent that he is familiar with the grievance of the applicant about her housing allowance and according to the system she was a paid-up homeowner from 01 March 2012, and she received R800-00 per month. When the resolution was amended on 07 May 2015, she received R900-00 per month. According to this amendment all employees had to re-apply for adjustment of home ownership on the prescribed application form with supporting documents like title deed, identity document, dependents, marriage certificate if applicable. All the documents need to be certified with an affidavit.

32. Because the title deed was not available the Department of Education: Housing Department informed the applicant as to why they did not approve the application. In 2018 there was again a resolution that states that employees who did not have a title deed must go to the Municipality and ask for a PTO (Permission to Occupy). The circular was sent to the schools with the information and from 2018 till January 2021, the applicant did not amend her application and only did it in 2021. According to the resolution of 2015 it was divided in two categories namely the tenant and homeowner. Homeowners do not have the savings component, but tenants do, and savings reflected on the system. The applicant falls under homeowner, and she did not have any savings. She was adjusted from R900-00 to the amount of R1 500-00 per month from February 2022 after she presented the PTO.

33. The representative of the applicant submits that it is common cause that the applicant did apply in 2015 for housing allowance. In 2015 the applicant informed the Department of Education: Housing Department that she does not have a title deed, she was informed that she will be registered as a tenant until she can submit a title deed. The amount of R900-00 will be paid to her and the difference of R300-00 will be diverted to the Individual Linked Savings Facility. According to the representative the PSCBC Resolution 7 of 2015 indicated that all employees who are homeowners and are eligible for the housing allowance shall receive the increase amount of R1 200-00 per month from 01 July 2015, submitting the required documentation as indicated in paragraph 4 of the circular.

34. It is her further submission that when she looked at the scope of the GEHS it states that as at 01 July 2015, the quantum of the housing allowance is R1 200-00 per month, paid to eligible employees. For employees who did not own homes, the housing allowance will be diverted and accumulated in the Individual Linked Savings Facility (ILSF) to be accessed when employees acquire home ownership and that is for appointments pre 27 May 2015. She further stated that on page 9 of the bundle in paragraph 7 it states that in terms of clause 4.5.6.5 of the said Resolution the full value of the accumulated savings can be withdrawn only in the event that the employee becomes a homeowner. It is her submission that the applicant is entitled to the Individual Linked Savings Facility savings as she never received the full amount of the housing allowance as per Resolution 7 of 2015, and if not, she is entitled to backpay (difference of R300-00) from 01 July 2015 to January 2022.

35. It is the submission of the representative of the respondent that the resolution 7 of 2015 introduced categories of subsidies and a savings scheme. It differentiated between homeowners and rental. Homeowners were to be given a housing allowance of R1 500-00 per month and the employee on rental received R1 200-00 and R300-00 was put on savings to be accessed on buying a property or on retirement. On 01 December 2015 the Director General in the Department of Public Service and Administration (DPSA) issued a circular explaining the requirements for the Government Employees Housing Scheme (GEHS). The circular defines who is a homeowner and the requirements for employees to qualify for housing allowance. In terms of the circular a homeowner is an employee with a registered title deed with a mortgage bond or home loan over the property or residing on communal land with permission to occupy. The above was testified by the only witness of the respondent.

36. It was put to the applicant that she was not a homeowner in terms of paragraph 3 of the DG’s Circular and she did not deny it. When she applied to be registered on GEHS in 2015, she did not meet the requirements of being a homeowner. The applicant argued that the employer is disowning her just because she is discriminated against for not having a title deed, or a PTO. This argument is irrelevant as it has to do with the interpretation of PSCBC resolution 7 of 2015 and not an unfair labour practice. Only the PSCBC has the jurisdiction to handle disputes about the interpretation of its resolution. The applicant could not have made savings as her application for homeowners’ allowance was unsuccessful because she did not meet the definition of a homeowner as defined. Once the applicant obtained a PTO in January 2022, she received the full homeowner’s allowance.

37. The letter to the applicant on 29 June 2022 states: “According to our records you have always been a homeowner from July 2011 and received an allowance for “Paid up Homes” amounting to R800-00 per month. The R800-00 was received by you from July 2011 to July 2012. From August 2012 to end January 2022, you received an amount of R900-00 on monthly basis and from February 2022 to date you received R1 500-00. Resolution 7 of 2015 par.2.1 states that all employees who are homeowners and are eligible for housing allowance shall receive the increased amount of R1 200-00 per month effective from 01 July 2015, subject to submitting the required documentation as indicated in paragraph 4 supra of this circular. If no proof was received, no adjustment to the homeowner’s allowance could have been affected. You therefore do not qualify to receive any savings arrears because you have always been a homeowner and not a Tenant. Only Tenants qualify for savings as well as arrears if any”. On 03 May 2020, the applicant again received a letter for employees who are still on the old housing allowance and it states: “The Department has established that you are still on the old housing allowance of R900-00, which means you did not migrate to the new announced dispensation on 01 July 2015, assessing the new housing allowance of R1 200-00 which is currently R1 398-35. You are hereby requested to submit the application form with all the documents as prescribed in the Determination and Directive of the Housing Allowance to Human Resources housing section or to your respective district office if you are at a school”.

38. It is clear from the testimony of the witness of the respondent and the closing arguments of the representative that the applicant was not registered as a tenant and therefore did not qualify for the savings since July 2015 up to January 2022 when she provided the PTO. Then she received the full housing allowance as a houseowner since February 2022. The applicant received the R900-00 per month on the old system from July 2015 up to January 2022. The applicant could never provide a lease agreement that she was a tenant.

39. Considering all the above, the applicant is not entitled to any savings money in arrears as she was never registered since July 2015 as tenant due to the absence of a lease agreement. She therefore did not qualify according to Resolution 7 of 2015 for savings and any arrear savings.

40. The respondent acted fairly when they refused to pay the claimed savings money or any arrears savings and therefore no unfair labour practice was committed by the respondent.

41. Considering the above I make the following award.

AWARD
42. The respondent, the Education Department of the Free State, did not commit an unfair labour practice dispute in terms of 186(2) of the LRA against the applicant, Mpho Motingoe, by refusing to pay any arrears saving to the applicant regarding housing allowance from July 2015 to January 2022 in terms of the provisions of Resolution 7 of 2015.

Signature:

Panelist: Gert van der Berg
Sector: Education Department of the Free State