ELRC774-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case number: ELRC774-22/23EC

In the matter between

NAPTOSA obo Tlakedi, Katiso Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the Applicant: In person
For the Respondent: Mr. Papa Patrick Nkomana
Arbitrator: Thobela Ncetezo
Heard: 31 May 2023
Delivered: 12 June 2023
SUMMARY: Non-payment of salary

ARBITRATION AWARD

Details of hearing and representation
1. The dispute was set down for an arbitration at Joe Gqabi District, Luncedo Teacher’s Centre at Aliwal North. The Applicant Mr. Katiso Tlakedi, appeared in person. The Respondent, Education Department of Eastern Cape, was represented by Acting Chief Education Specialist: Labour Relations, Mr. Papa Patrick Nkomana.

2. The proceedings which were digitally recorded were conducted in English.

3. The Applicant submitted as evidence a letter addressed to NAPTOSA which he received form Acting District Director: Ms. I.Z Masiza. This document was accepted by the Respondent.

4. The Respondent did not submit any bundle of documents and Mr. Nkomana who appeared for the Respondent also testified and was an only witness that was introduced.

Issue to be decided

5. I am required to decide whether the Applicant is entitled to a salary that the Respondent failed to pay in November 2022.

Background to the dispute

6. The Applicant submitted that he is employed by the Respondent as Post Level I Educator at Simphiwe Ketwa High School, which is under Joe Gqabi District. At the time that his dispute arose, he earned R25 749.00 per month, which is the amount that he is claiming from the Respondent.

7. The Respondent submitted that the district is aware of the dispute and is not disputing it.

Survey of evidence and arguments
Applicant’s case

8. The Applicant testified that he was initially employed by the Respondent in August 2020 and was appointed into a permanent position of Post Level 1 Educator in July 2022. In November 2022 his salary was not paid and he was not given any valid explanation for not being remunerated that month. He was paid for all the other months except for November.
9. He further testified that on enquiring from the district office the reason for the non-payment of his November salary, he was promised that it would be paid within thirty (30) days. The officials responsible for payment of salaries asked for his cell number and promised to call him, but he did not receive any call from the district with regards to his salary. Later on, he received a correspondence dated 31 January 2023 wherein the Respondent admitted that he was not paid his salary for the month of November 2022.

10. The Respondent did not cross-examine the Applicant.

Respondent’s case

11. The Respondent’s witness, Acting CES: Labour Relations, Mr. Papa Patrick Nkomana, testified that he became aware of the discontentment of the Applicant on receiving communication from the Acting Deputy Director: Employee Relations, Miss. Sikiti and Human Resources Department. He was promised that the Applicant’s salary would be paid by 4 March 2023 and that the submission for this payment was made to the provincial office. They made further enquiries from the provincial office on 29 May 2023 and were told that the Applicant’s November 2022 salary was being processed at the office of the Chief Financial Officer.

Closing arguments

12. The parties did not submit any closing arguments.

Analysis of evidence and arguments

13. The Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

14. An employer has a common law duty to remunerate an employee for services rendered. Furthermore, Section 32 of the BCEA regulates payment of remuneration to employees. Section 32(3) provides that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment. In this case there was no dispute that the Applicant had rendered his services for the month of November 2022, instead the witness of the Respondent admitted that the Applicant did not receive his salary for the said month. It is evident from the testimony of both parties that the Applicant made his services available to the Respondent.

15. Based on the above reasons, it is my considered view that the Applicant is legally entitled to a salary for the services that he had rendered.

16. I accordingly make the following award;

Award

17. The Respondent, Education Department of Eastern Cape, is ordered to pay the Applicant, Katiso Tlakedi, his outstanding salary of R25 749.00 for November 2022.

18. The amount due to the Applicants in terms of the above paragraph must be paid by no later than 26 June 2023, failing which the sum shall bear interest from the date of this award to the date of payment at the rate of interest applicable from time to time to judgement debts.

Signature:


Commissioner: Thobela Ncetezo
Sector: Education