ELRC254-21/22KZN

Case No.: ELRC 254- 21/22KZN
Date of Award: 17 AUGUST 2023

In the ARBITRATION between:

MUSA BYAKIKA MWESIGWA APPLICANT

and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT


Union/Applicant’s representative: Ms Qudsiyyah Maja
Mcgregor Erasmus Attorneys
Durban


Respondent’s representative: Indran Pillay
228 Pietermaritzburg Street
Pietermaritzburg

DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”). The matter was scheduled for arbitration on the 18 May 2021 and sat on various dates. The matter was settled by the parties on 12 January 2023 and the settlement agreement was filed.

2. The back pay in terms of the settlement agreement was not paid and the Agreement was made an Arbitration award in terms of Section 142 A (1) of The Labour Relations Act 1995, on 22 June 2023. The matter was scheduled for the quantification of the back pay on 11 August 2023.

3. The Applicant, Mr Musa Byakika Mwesigwa was present and was represented Ms Qudsiyyah Majam from Mcgregor Erasmus Attorneys, and the Respondent was represented by Mr Indran Pillay from the Department of Education in Kwa Zulu Natal.

4. The Applicant attended the hearing for the quantification of the back pay and there was no appearance by the Respondent. Mr Pillay was contacted by Ms Majam at 9. 09am on 11 August 2023, advising that the matter was on Zoom. The matter stood down for Mr Pillay to revert and there was no communication or attendance from any party representing the Respondent.

5. I was satisfied that all parties were properly informed of the hearing for 11 August 2023 and proceeded with the matter at 9.45 am.

ISSUE TO BE DECIDED
6. The issue to be decided is the quantification of back pay.

BACKGROUND TO THE MATTER
7. The Applicant was employed with the Respondent as an educator at Ubulinga High School. He was dismissed for misconduct and the matter was settled, between the parties, on 12 January 2023 on the following basis:

• “The Respondent agreed to reinstate the Applicant, retrospectively, on the same terms and conditions that governed his employment at the time of termination, immediately upon signature of the agreement.”
• “The employer shall pay the employee back pay from the date of dismissal, being 3 June 2021, up until the date of reinstatement, inclusive of all increments.”

8. The Applicant submitted that despite the said agreement he has to date not received his back pay. He stated that his back pay amounted to R 510 703-34. He further stated that the said amount was recorded in a salary advice issued by the Respondent on 3 August 2023. He made enquiries with payroll and was advised that the amount to due him, was R 510 703-34. The salary advice stated that it was the arrear back pay due to him. The Respondent calculated the back pay, which amount was acceptable to him. It was to be paid on 3 August 2023 but remained unpaid. There was no dispute about the amount as this was the calculation provided by the Respondent, as evidenced in the pay slip for arrear salary.


ANALYSIS OF EVIDENCE AND ARGUMENT

9. I have to determine the amount of back pay due to the Applicant in terms of a settlement agreement concluded between the parties on 12 January 2023. The Settlement agreement became an award in terms of S 142 A on 22 June 2023.

10. In terms of the said settlement Agreement the back pay was not quantified. The Respondent quantified the amount to be the sum of R 510 705 -34. This amount was acceptable to the Applicant. The Respondent then issued a salary advice for the arrear salary, as per annexure “A”, attached hereto. The Respondent was not in attendance to either confirm or dispute same. The Applicant submitted that it was an agreed amount and that the calculations were correct as it included his salary, increase and bonus.

11. The Applicant was an honest and forthright witness who gave his evidence in a coherent manner. He relied on the salary advice as the arrear back pay, which was computated by payroll from the Department of Education. He did not dispute the calculations. There was no dispute about the amount due as he accepted the calculations furnished by the Respondent. I am satisfied that the aforesaid amount was correctly calculated as it was an agreed amount by both parties. The Respondent has now failed to pay the back pay.

12. The Applicant is therefore entitled to back pay in the sum of R 510 703-34, which has now been quantified. This amount is subject to tax.


AWARD

I make the following order:

13. The quantification of back pay for the Applicant, Musa Byakika Mwesigwa amounts to R 510 703-34, subject to tax.

14. The Respondent, Department of Education – Kwazulu Natal is hereby ordered to pay the Applicant the sum of R 510 703-34, ( subject to tax),

15. The Respondent is directed to pay the amount set out in paragraph 12 above within 14 days of being informed of this award.

ELRC Commissioner : VEESLA SONI Date : 17 AUGUST 2023