ELRC1011-22/23 EC

Case Number: ELRC1011-22/23 EC
Panelist: Malusi Mbuli
Date of Award: 14-08-2023

In the ARBITRATION between

SAOU obo WILLIAM DE WET
(Union / Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing virtually at 09:00 on the 14th of August 2023.

2. The applicant, Mr. William De Wet attended the hearing remotely and was represented by Mrs. Venita Van Wyk and official of the applicant’s trade union SAOU. The respondent, Department of Health – Eastern Cape, also attended the hearing and was represented by Mrs. Annalise Slabbert an official of the respondent.

3. The matter proceeded on the 14th of August 2021, and was finalized on the same day with the parties dealing with evidence and arguments at the same time on record on the 14th August 2023.

ISSUE TO BE DECIDED

4. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicant’s Leave Gratuity and if so, I must determine the appropriate remedy.

EVIDENCE

5. The facts in this dispute were common and were confirmed by the parties on record. It then follows that the arbitration hearing was recorded and the record will be provided and form part of this hearing.

COMMON CAUSE FACTS

6. That the Department of Education owes the applicant Mr. William De Wet an amount of R173 071, 31 in respect of leave gratuity.

ANALYSIS OF EVIDENCE AND ARGUMENT

7. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 185 (2) provides that:
- Every employee has the right not to be subjected to unfair labour practice
The applicant feels that the employer has committed an unfair labour practice by failing to pay him his leave gratuity.

8. As indicated above under common cause facts the parties are not in dispute on whether the respondent owes the applicant the said amount. The only issue that remains to be decided is when such leave gratuity should be paid to the applicant.

9. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the submissions of the parties that have been recorded in the arbitration hearing that the leave gratuity claimed by the applicant is due and payable to him.

10. The respondent has committed an unfair labour practice by failing to pay the applicant his leave gratuity and as such this constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.

11. In the circumstances I make the following award.

AWARD

12. The respondent, the Department of Education Eastern Cape, is ordered to pay the applicant Mr William De Wet, an amount of R173 071, 31 in respect of the leave gratuity owed to the applicant.
13. The amount referred to in paragraph 12 above will be paid to the applicant not later than the 31st of August 2023.
Signature:

Commissioner: Malusi Mbuli