ELRC512-22/23 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC512-22/23 EC

In the matter between

SAOU obo HESTER TAIT Applicant

and

Eastern Cape Department of Education Respondent

Panelist: YOLISA NDZUTA

HEARD: 6 February 2023

DATE OF AWARD: 03 March 2023

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to the provision of benefits

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to benefits by continuing to debit an amount from the Applicant’s salary after the debt was extinguished.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me over zoom on the 06 February 2023. During these proceedings, the Applicant, Mrs Hester Tait was represented by Ms Venita Van Wyk of SAOU while the Respondent, Eastern Cape Department of Education was represented by Mr Lusapho Ndzongo.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.

3. The parties provided that the matter was not complicated and that there was no dispute of fact as such there was an application by the Applicant’s representative that the matter proceed in terms clause 18 of the ELRC Constitution.

4. The applicant was directed to file their statement of case by 10th of February 2023 and the respondent to file a response by the 17th of February 2023.

THE ISSUE IN DISPUTE

5. I am required to determine whether an unfair labour practice was committed by the Respondent relating to benefits as it relates to the action of the Respondent of continuing to debit an amount from the salary of the Applicant towards a debt (mortgage bond) which had been paid and extinguished.

THE BACKGROUND TO THE DISPUTE

6. In these proceedings the Applicant referred an unfair labour practice relating to unauthorized deductions from her salary.

7. The Applicant claimed that she is employed as a post level 1 educator at Fanie Theron Pre-Primary School in Cradock.

8. The Applicant further claimed that during her employment she concluded a mortgage bond with ABSA Bank which was paid by stop order from her salary by stop order.

9. The Applicant also claimed that the mortgage bond was settled and that she notified the Respondent to cease the deductions on the stop order however the stop orders continued to which she was advised that any reimbursements would have to follow after the submission of certain documentation.

10. The Respondent accepted the above and conceded that there are refunds due to the applicant.

11. The Respondent accepted that the matter did not require the hearing of evidence and may proceed under the auspices of clause 18 of the ELRC Constitution.

SURVEY OF EVIDENCE AND ARGUMENT

12. There was no viva voce evidence presented rather the parties proceeded to file a Statement of Case (with annexures) from the applicant and a Statement in Response that was due from the respondent was not filed.

13. The Respondent’s representative filed confirmation that the applicant was owed an amount.

14. The Applicant’s case was not disputed nonetheless same evidence must be assessed in terms of the rules of evidence applicable.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. As stated above, the parties agreed to file written statement of case and a statement in response as there wasn’t any dispute of fact.

19. I considered the submissions.

20. Before I address the submissions made, it is important to consider the dispute as defined in case law. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion. The latter case has been referred to as the locus classicus for such disputes.

21. The applicant’s case satisfies the above as it addresses the question of one’s entitlement to amounts that were due to them ex contractu and ex lege in this regard.

22. More important in this matter was the issue of irregular deductions after the Respondent was requested to cease same and the relevant administrative process was complied with by the Applicant.

23. The Applicant’s case in this dispute also advanced that since January 2022 when she settled the mortgage bond, further deduction were not necessary as she did advise her employer (the Respondent) by submitting the BAS Entity form in compliance with the employer’s administrative process. The applicant also placed on record that although deducted amounts were paid to the bank, the bank would return the funds paid by the employer (respondent) as the mortgage bond was cancelled.

24. The applicant also argued that the monies paid to the employer by the bank were not reimbursed to her as such the employer owed the applicant the refund accrued due to the irregular deductions spanning from January 2022.

25. The above was not disputed by the Respondent, rather the representative for the Respondent conceded to the above and filed a document from their internal sub-directorate conceding that the applicant was owed refunds.

26. The Applicant further contended that subsequent deductions were unjustified and in contravention of the employer’s own administrative process which same contention was not disputed by the Respondent.

27. It is evident that the Applicant’s is entitled to challenge the subsequent deductions as she had not consented thereto thus the employer was not entitled to the deductions, reference is thus made to Stein v Minister of Education and Training and Others (LC) (unreported case no J415/20, 14-5-2020) (Mahosi J) wherein the court directed that employers may only make lawful deductions from an employee’s salary once same deductions satisfy strict requirements.

28. Considering that the employer not only conceded to the applicant’s case, but same employer’s deduction also failed to meet the requirements as per the cited case law, it thus is discernible that the Respondent has committed an unfair labour practice. In the premises I make the following award.

AWARD

29. The Applicant has proven that an unfair labour practice was perpetrated against her by the Respondent relating to benefits.

30. The Applicant is entitled to compensation to the value of R 144 000 which equates to the amount irregularly deducted from her salary and due to her as a refund.

31. The date of implementation of the above payment in paragraph 30 is on or before 31 March 2023.

Yolisa Ndzuta
Panelist: ELRC