ELRC127-23/24EC

Panelist: Clint Enslin
Case No.: ELRC127-23/24EC
Date of Award: 21 August 2023

In the ARBITRATION between:

SAOU obo J Japhta
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Ms Venita Van Wyk (SAOU)
Applicant’s address:

Telephone: 0609714062
Telefax:
Email venitavw@saou.co.za

Respondent’s representative: Mr Garth Jacobs
Respondent’s address:


Telephone: 0822109646
Telefax:
Email garth.jacobs@ecdoe.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A(4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 11 August 2023 and the proceedings were electronically recorded. The Applicant, Ms Juliet Japhta, through her Union SAOU, referred an enforcement dispute to the ELRC.

2. The Applicant was represented by Ms Venita Van Wyk, Assistant Provincial Secretary of SAOU Eastern Cape. The Respondent, Department of Education – Eastern Cape was represented by Mr Garth Jacobs, an Assistant Director: Chief Education Specialist – Employee Relations for Sarah Baartman District.

ISSUE TO BE DECIDED
3. The dispute concerns the alleged refusal and or failure of the Respondent to pay the Applicant her housing subsidy.
4. I am accordingly required to decide if the Respondent is in breach of the Collective Agreement and if so, determine the appropriate relief.

BACKGROUND TO THE ISSUES

5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

5.1 The Applicant is a post level 1 educator employed by the Respondent.

5.2 She commenced her employment with the Respondent on 13 April 2018.

5.3 The value of the subsidy claimed is R1456.94 per month.

5.4 The Applicant’s claim is for the period of February to May 2021, which equates to a four months period.

5.5 The total amount claimed is R5827.76 for the four months period.

5.6 The Applicant is eligible for the monies claimed and they are owing to her.

5.7 The monies claimed have not yet been paid to the Applicant.

5.8 The monies are owing in terms of PSCBC Resolution 7 of 2015 read with PAM chapter E.2.

5.9 The Respondent has no valid reason for the non-payment of the monies claimed.


SURVEY OF EVIDENCE AND ARGUMENT

6. The parties confirmed that all facts were common cause, as captured above. Despite being given an opportunity to do so, both parties indicated that they had no further evidence or arguments to add and there was also nothing they wished to dispute.

ANALYSIS OF EVIDENCE AND ARGUMENT

7. It is common cause that the Applicant is employed by the Respondent as post level 1 educator.

8. It is further common cause that she is entitled to the housing subsidy for the period of February to May 2021, totalling a period of four months and that same amounts to R5827.76.

9. Clause 69.1, of Annexure “C” (Dispute Resolution Procedures) of ELRC Resolution 6 of 2016, provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.

10. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.

11. Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act, the Employment of Educators Act, the Personal Administrative Measures (PAM), or any other regulations or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in the respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment.

12. Clause 69.8 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33A of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.

13. Clause 69.9 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.

14. The payment of the housing allowance to the Applicant is payable in terms of PSCBC Resolution 7 of 2015 read with chapter E.2 of PAM. The entitlement to the amount claimed was agreed to between the parties.

15. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”


AWARD

16. The Respondent, the Department of Education: Eastern Cape, is in breach of the terms of PSCBC resolution 7 of 2015 read with Chapter E.2 of PAM by not paying the Applicant her housing subsidy/allowance for the period of 1 February 2021 until 31 May 2021.

17. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicant, Ms Juliet Japhta, an amount of R5827.76, which is the housing subsidy/allowance for the four month periods as set out in paragraph 16 above.

18. The amount as referred to in paragraph 17 must be paid to the Applicant by no later than 30 September 2023.

Clint Enslin
(ELRC) Arbitrator