ELRC97-22/23KZN

Case Number: ELRC97-22/23KZN
Commissioner: Protas Cele
Date of Award: 13 February 2023

In the ARBITRATION between

Dr Rishichand Sookai Budhal

(Union / Applicant)

And

Department of Education KwaZulu-Natal

(Respondent)


Union / Employee’s representative : Ishara Dhanook (NAPTOSA)

Employer’s representative : Manjith Bejanath (DOE)

Details of hearing and representation
1. The matter was set down for arbitration on 25 January 2023 at Umngeni Office park, no.53 Anthony Road, Durban North..

2. The Applicant, Dr Rishichard Sookai Budhal, appeared in person and was represented by Ishara Dhanook, an official from NAPTOSA.

3. Manjith Bejanath, Senior Personnel Practitioner, appeared on behalf of the Respondent, Department of Education KwaZulu-Natal.

4. Ishara produced 3 bundles of documents and a 1 page supplementary document which were marked bundle A (A1-30), Bundle B (B1-21), Bundle C (C1-54) and D (certificate of service).

5. Manjith presented 2 bundles which were marked Bundle E (E1-39) and Bundle F (F1-19).

6. Both parties led the evidence of one witness respectively and submitted their closing arguments in writing.

7. The proceedings were conducted in English and digitally recorded.

Issue(s) to be decided.
8. I am required to decide whether or not the ELRC Resolution 7 of 2001 should be interpreted to include the Applicant in so far as it deals with a break in service.

Background to the dispute
9. The Applicant was employed as an educator on 1 January 1982 by the Department of Education which was at the time under the control of the erstwhile House of Delegates. He is currently serving as a School Principal at Rose Heights Primary School.

10. He is due to retire at the end of this year, 2023. He had a break in service for a total number of 91 days between 31 December 1986 and 30 March 1987 when his services were terminated.

11. He was subsequently re-employed by the Respondent on 30 March 1987 and he has been in continuous service with the Respondent since his re-employment.

12. His case was that the 91 days` break in service should be regarded as continuous service consequent to the ELRC Resolution 7 of 2001 and in line with the Basic Conditions of Employment Act 75 of 1997, as amended (BCEA).

13. The Respondent disputed that the Applicant falls within the ambit of the Resolution and the category of educators contemplated in the Resolution. It contended that there was no employment relationship during the 91 days` break in service.

Survey of evidence and argument.
Applicant`s evidence
14. Dr Budhal testified that he commenced employment with the Respondent on 1 January 1982.

15. He currently occupies a position of a School Principal at Rose Heights Primary School in Chatsworth. He has served the Department of Education for a total number of 41 years and 1 month.

16. His services were terminated on 31 December 1986 but he was re-employed on 30 March 1987 after 91 days` break in service. From 30 March1987 until 14 June 1988 he was employed on a temporary basis and not admitted to the Government Employees Pension Fund (GEPF). He was subsequently admitted to the GEPF on 15 June 1988.

17. He is due to retire at the end of the year and he will suffer financial prejudice if his break in service is not recognised by the Respondent as continuous service.

18. When OSD (Occupation Specific Dispensation) was introduced in 2006 his full years of service were not taken into account which resulted in him receiving 2½ notches less from then onwards.

19. Once he exits at the end of the year his pension will also be determined on a lower salary notch which will affect him for the rest of his life.

20. He has also not been recognised for his 40 years of service bonus and his progression pay which is given every year is done on a lower salary scale.

21. He stated that the ELRC Resolution 7 of 2001 (C7:22.1) dated 13 December 2001, stipulates that unpaid leave for a maximum of 120 consecutive days may be granted to an institution-based educator who was previously employed as an institution-based educator by the same or another education department for the purpose of retaining the continuity of the educator`s service.

22. He explained that his break in service was even less than 120 days stated in the Resolution. He was also an institution-based educator but the Resolution was not applied to him by the Respondent. He stated that the Resolution is an ELRC document which is binding on the Respondent as an employer.

23. He testified that section 84(1) of the BCEA (C8:2.2) provides that, “For the purposes of determining the length of an employee`s employment with an employer for any provision of this Act, previous employment with the same employer must be taken into account if the break between the periods of employment is less than one year.”

24. He explained that his break in service was even less than one year and that the provisions of section 84 (1) of the BCEA apply to him and that they are also binding on the Respondent as an employer.

25. He then referred to the LC judgment (A27:31-32) delivered on 14 December 2021 and stated that after the Commissioner appointed by the ELRC had refused to condone the late referral of his dispute to the ELRC, the LC subsequently condoned the late filing of his review application and proceeded to review and set aside the commissioner`s award.

26. The LC then ordered the ELRC to set down an arbitration to be conducted by an arbitrator other than the Commissioner whose award was reviewed and set aside, in order to determine the dispute he referred in October 2018.

27. The Court stated at paragraph 31 of the judgement that his claim for continuity of service rests on the provisions of paragraph 22.1 of the ELRC`s Resolution 7 of 2001 which provides for restoration of continuity of service under prescribed conditions.

28. The Court further stated that if he establishes the interpretation of this Resolution that he contends for, the continuity of his service may well be recognised.

29. The Court further stated at paragraph 32 of the judgment that following his grievance it was recommended that the continuity of his service be restored, but the Respondent has not at any stage explained why it did not implement the recommendation.

30. He also referred to the LAC judgment (B10:37 and 39) in Patrick Alain Henri Barrier v Paramount Advanced Technologies (PTY) Ltd, heard via TEAMS on 18 February 2021 and deemed to be delivered on the date on which the judgment was emailed to the parties.

31. He testified that the court stated at paragraph 37 of the judgment that, “section 84 (1) specifically provides that the section is applicable where the length of an employee`s employment with a specific employer is to be determined for any provision of the Act. Since the length of an employee`s employment with a particular employer would have to be determined for compliance with section 41 (2) of the BCEA, section 84 would be applicable, in particular, where there has been a break or interruption in the course of the employee`s employment with the particular employer. This was also the conclusion (effectively) of the arbitrator and of the Court in Rogers, the correctness of which the court a quo also accepted.”

32. The court further stated at paragraph 39 that, “The section, like section 41(2) of the BCEA, is relatively clear and unambiguous. Section 41(2) has to be read in light of and consistently with section 84(1) of the BCEA. The latter section qualifies and assists in the interpretation of the former”.

33. During cross-examination he conceded that the Resolution does not talk about educators whose services were terminated.

34. He confirmed that from 30March 1987 after he was re-employed he worked continuously for the same employer and did not have another break in service.

35. He stated that the break was for 91 days and that he relied on the Resolution and the provisions of the BCEA in support of his case.

36. He re-iterated that the Resolution and the provisions of the BCEA are binding on the Respondent as an employer.

Respondent’s Evidence
37. Manjith testified that the dispute relates to the events which took place 35 years ago. The witnesses who could have testified have either retired or are deceased.

38. All that the Respondent has are documents extracted from the archives.

39. In terms of these documents the Applicant was first employed by the Department of Education and Culture on 1 January 1982 and his services were subsequently terminated on 31 December 1986 (E11).

40. With effect from 1 January 1987 the employment relationship had come to an end. On 30 March 1987 he was appointed as a locum tenens, currently known as a contractor. He did not enjoy any benefits during this period.

41. His contract was extended from time to time (E16-19). On 15 June 1988 he was admitted to the GEPF (F1) Following his permanent appointment on 15 June 1988.

42. He stated that the dispute is based on Resolution no.7 of 2001 and explained that one had to be on leave without pay for services to be continuous.
43. The employment relationship between the Respondent and the Applicant had ceased to exist and the Applicant was not on leave without pay and therefore not on service.

44. The Resolution does not apply to the Applicant. Paragraph 22.1 talks about unpaid leave and no where does it state that where services were terminated, they should be regarded as continuous. The Resolution was intended to cater for educators who perform child care duties.

45. During cross examination when it was put to him that an educator may exhaust his/her sick leave and then granted leave without pay he stated that in the case of the Applicant his contract had come to an end.

46. He conceded that section 84(1) of the BCEA is binding on the Respondent and that it does not distinguish between the types 5 of employment. He emphasised that the dispute is about the Resolution.


Closing Arguments
Applicant’s Argument

47. In her written submissions Ishara referred to the ELRC Resolution No. 7 of 2001 (C7:22.1), Section 84 (1) of the BCEA (C8:2.2) the LAC judgement in Patrick Barrier v Paramount Advanced Technologies (par 37 and 40) and argued that based on all these authorities the Applicant is eligible to have his break in service recognized.

48. The Applicant’s break in service amounted to 91 days which is below the number of days prescribed in the Resolution as a condition. He served the same employer before and after his break in service and he has been continuously employed since 30 March 1987 to date.

49. She further argued that the Applicant submitted a grievance to the Respondent but he never received any feedback. In the LC judgment (par 32) the judge also stated that the outcome of the grievance recommended that the continuity of service be restored but the Respondent never gave any reasons why the recommendation was not implemented. The judge also stated that if the Applicant establishes the interpretation of the Resolution, the continuity of his service may be recognized.

50. She finally argued that the Applicant will suffer financial prejudice if his break in service is not recognized and that this will affect his 40 year service bonus, OSD notch adjustment, pension payout on retirement and accumulated leaver before termination of service.

51. She argued that the Applicant should be credited for all the prejudice he suffered thus far and that according to the calculations obtained with the assistance of the Respondent’s salary section, the following figures are applicable;

• Adjusted salary notch at present should be R766, 218
• Backpay from 2009 should be R574, 428 plus interest for 13 years.

52. The amounts are programmatically calculated on the persal system and can be verified.

Respondent’s Argument

53. Manjith argued that when the Applicant’s services were terminated, the employer-employee relationship came to an end. The pension that he contributed with effect from 1 January 1982 to 31 December 1986 was paid out to him.

54. Upon termination of service he did not qualify for any accumulated vacation leave pay out. He was unemployed from 1 January 1987 until he was re-employed as a locum tenens (on a term to term contract) on 30 March 1987. It must be noted that as a locum tenens one does not enjoy any benefits.

55. He was subsequently appointed as a temporary educator with effect from 15 June 1988. This date marks the new employer-employee relationship. When he was appointed on 15 June 1988, he would have been entitled to benefits.

56. Paragraph 22.1 of Resolution 7 of 2001 does not apply to the Applicant. He was not on approved unpaid leave for the period 1 January 1987 to 29 March 1987.

57. He argued that the heading of the Resolution is “New Leave Measures for Educators and Provision for The Remuneration of Educators Who Perform Child Care Duties During Periods of Leave”. Hence paragraph 22.1 talks about unpaid leave.

58. The Applicant confirmed during cross examination that he was not on leave with effect from 1 January 1987 and that he never submitted any leave forms to confirm he was on leave. He also admitted that the Resolution does not talk about educators whose services were terminated.

59. The purpose of Resolution 7 of 2001 as outlined in paragraph 1 is “To agree on new leave measures that will replace the leave regulations and to provide for the overtime remuneration of educators who perform child care duties during periods of leave at an institution responsible for leaners with behaviour disorders”.

60. The Resolution states that “where unpaid leave for the continuity of service has been granted to an educator, the service of the educator is regarded as continuous for all purposes of determining his or her period of service” (E35:24.4).

61. The Applicant was not on approved unpaid leave and therefore his services cannot be regarded as continuous. One cannot consider the period of termination as continuous service.

62. He finally argued that according to the extract from the Indian Education Act (E38:52), “A locum tenens shall not be eligible for any leave other than leave without pay”. The Applicant, when appointed as a locum tenens did not qualify for any benefits because he was employed on contract.

63. The Resolution does not apply to the Applicant. Paragraph 22.1 talks about unpaid leave. The reference to unpaid leave is when the employment relationship is intact. In the case of the Applicant his services were terminated and the break cannot be taken into consideration to accord him continuity of service.

Analysis of evidence and argument
64. Section 24 of the Labour Relations Act 66 of 1995 (LRA), as amended regulates disputes about the interpretation and application of collective agreements and provides for their resolution through arbitration.

65. In chapter one of the BCEA a collective agreement is defined as a written agreement concerning terms and conditions of employment or any other matter of mutual interest, concluded by one or more registered trade unions and one or more employers or one or more registered employers’ organisations.

66. In the present case the Applicant contends that based on the ELRC Resolution no.7 of 2001 as well as the provisions of the Basic Conditions of Employment Act 75 of 1997 (BCEA), as amended, he qualifies for his break in service to be recognised as continuous service.

67. It is common cause that the break in service is 91 days and that the break occurred as a result of the Applicant`s services having been terminated by the Respondent. It is further common cause that the Applicant was paid all the statutory entitlements that were due and owing to him on termination of his services.

68. The question is whether or not with reference to the Resolution and the provisions of the BCEA, the continuity of his service should be restored or recognised. It is this Resolution, in particular, which I am required to interpret in order to construct its correct meaning so that I can apply it to the facts of the case before me.

69. In BIFAWU abo Members V CCMA, the LC reaffirmed the principle that when interpreting collective agreements, arbitrators must strive to give effect to the intention of the agreement and must give the words used by the parties their ordinary and popular meaning, if no ambiguity is present.

70. Similarly according to the primary rule for interpretation of statutes, the words, phrases and sentences of a statute are to be understood in their natural, ordinary or popular and grammatical meaning, unless such a construction leads to an absurdity or the statute suggests a different meaning.

71. I now turn to the Resolution itself in order to establish the true intention of the parties and whether there is any link between the Resolution and the nature of the Applicant`s circumstances.

72. The heading which appears on top of page 3 of bundle C(C3) indicates that the Resolution is, ‘New Leave Measures for Educators and Provision for the Remuneration of Educators Who Perform Child Care Duties During Periods of Leave.”

73. According to paragraph 1 on page 3 of bundle C (C3:1), the purpose of the agreement is, “to agree on new leave measures that will replace the leave regulations and to provide for the overtime remuneration of educators who perform child care duties during periods of leave at institutions responsible for learners with behaviour disorders.”

74. In terms of paragraph 2 (C3:2) the agreement applies to and binds the employer and all the employees of the employer as defined in the Employment of Educators Act of 1998.

75. In chapter F, Annexure A, leave measures (C6), an institution-based educator is described as an educator who is employed at an education institution and whose normal duties are discontinued during institution closure periods. An institution closure period is defined as the scheduled period that education institutions close at the end of each term and during which period teaching and learning activities are discontinued.

76. After subjecting the Resolution to thorough scrutiny I find no link between the Resolution and the Applicant`s circumstances and therefore no justification for the continuity of his service to be restored or recognised.

77. During the break in service he was not an educator who performed child care duties during periods of leave. His services were terminated and therefore he also could not have been an institution-based educator

78. His reliance on the provisions of section 84(1) of the BCEA is also misplaced and misdirected. My interpretation of the section is that it provides measures in determining an employee`s entitlement to leave or to a payment in terms of this Act. An example of such payment is severance pay in terms of section 41 of the Act.

79. Furthermore the LAC judgement in Patrick Barrier v Paramount Advanced Technologies on which the Applicant also relies upon does not contain or relate to the same facts or similar circumstances of the disputes.

80. In essense the emphasis which the court placed on the provisions of section 84(1) of the BCEA supports my interpretation of the section in so far as it relates to a payment in terms of the Act, and in this instance, severance pay, in terms of section 41 of the BCEA.

81. I pause here to say, that the outcome of the late filing of the review application and the review and setting aside of the commissioner’s award in the Labour Court does not in any way relate to the merits of the dispute.

82. All that the Court was saying is that based on the test that it had to apply in determining whether good cause had been shown for the late filing of the review application and for the late referral to be condoned, the Applicant established a prima Facie case and also showed that he had prospects of success when the matter is heard on its merits.

83. Hence the Court stated that if the Applicant establishes the interpretation of the Resolution that he contends for, the continuity of his service may well be recognised.

84. In these circumstances it is my interpretation that the Resolution does not apply to the Applicant and that he did not establish the interpretation in order for his break in service to be restored or recognised.

Award

I therefore make the following award

85. The Application is dismissed.

86. I make no order as to costs.


P Cele: Commissioner