ELRC273-22/23KZN

Panellist: V Naidoo
Case No.:ELRC273-22/23KZN
Date of Award:10 June 2023

In the matter between:

NAPTOSA obo S Mewalall
Applicant

and

Department of Education - KZN
Respondent

Union/Applicants’ representative: Mr R Juguth of NAPTOSA

Respondent’s representative: Mr S Buthelezi

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an arbitration award in respect of an unfair labour practice dispute relating to benefits between NAPTOSA obo S Mewalall, the Applicant, and Department of Education - KZN, the Respondent.

2. The hearing was held on 15 May 2023. Applicant was represented by union official, Mr R Juguth and Respondent was represented by it Senior Personnel Practitioner, Mr AS Buthelezi.

3. Pre-arbitration minutes were agreed and signed by the parties. A bundle of documents was admitted into evidence by Applicant. Respondent was unable to present a bundle of documents. There were no facts in dispute.

4. On the basis of the logistical issues relating to bundles and for the sake of expediency, the representatives agreed that the matter would be argued on the papers. Applicant agreed to serve his heads of argument no later than 22 May 2023. Respondent agreed to serve his opposing papers along with his bundle no later than 29 May 2023 and Applicant would have the right to reply no later than 02 June 2023. Applicant complied and Respondent’s papers were received on 06 June 2023.

ISSUE TO BE DECIDED

5. The issue to be decided is whether Respondent had committed an unfair labour practice relating to benefits by not paying Applicant’s rental allowance for the period of January 2021 to June 2021.

6. If so, what is the quantification of the rental allowance.

7. If I find in favour of Applicant, I am required to decide on an appropriate remedy.

BACKGROUND TO THE DISPUTE

8. Applicant received a rental allowance from 2009. Her lease agreement was signed for a period of ten years. The application was made for the ten year period. Upon renewal of the lease in 2019, a new application for a rental allowance was made for a further ten year period.

9. In January 2021, her rental allowance ceased and was reinstated in July 2021. This period of non-payment is the subject of the dispute.
SUMMARY OF THE EVIDENCE AND ARGUMENT

10. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and arguments led.

11. The pre-arbitration minutes and applications form part of the record. For the sake of brevity, this shall not be repeated, unless where necessary.

12. Applicant argued that she was entitled to payment of the rental allowance for the period in question. This was calculated as R900 (rental allowance + R600 (savings fund) = R1500 * 6 months = R9 000.

13. Respondent argued that there was no grievance received, that the rental allowance application must be made every two years; and that the amount in question is R900 per month.

SURVEY OF AND ARGUMENT

14. S186(2)(a) of the LRA protects employees from any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion etc. It is common cause that the issue of the rental allowance falls within the scope of an unfair labour practice: benefits.

15. It is common cause that Applicant was the recipient of the benefit since 2009 and that it was renewed in 2019. A further application was made on June 2021 on request by Respondent. I note that Applicant made several attempts to address the loss of the benefit prior to referring the dispute to Council. Respondent simply ignored her and refused to assist in any way.

16. Respondent now alleges that a renewal application ought to be made every two year. This, in the face of Applicant receiving the benefit for ten years without an annual renewal. Additionally, there was no correspondence sent to her, advising that she would cease to qualify for the benefit if she does not rectify what they considered an irregularity, after ten years. No such opportunity was provided to Applicant. Her benefits merely stopped, with no explanation or notice. I do not consider this to be fair dealings.

17. Respondent further alleges that the amount of the benefit is R900, not R1 500. However, in terms of PSCBC Resolution 7 of 2015, provision is made for the savings facility and the benefit is reflected in Applicant’s payslip. I consider this submission to be disingenuous and lacking in any merit.

18. In these circumstances, it is my view that Respondent has acted in exceptional bad faith in ceasing payment of Applicant’s rental allowance for the period in question. They have provided no plausible explanation for the non-payment and have made no attempts to right their wrong.

19. It is therefore my view that Applicant ought to receive the payments due to her.

AWARD

20. Respondent, Department of Education - KZN did commit an unfair labour practice against Applicant, Ms S Mewlall.

21. Respondent is therefore required to compensation Applicant in the amount of R9 000 no later than 24 June 2023.

Dated at Durban on this 10th day of June 2023.

ELRC Panellist
Vashnee Naidoo