ELRC203-23/24EC

ARBITRATION AWARD

Arbitrator: Macjon Maarman
Case number: ELRC203-23/24EC
Date of Award: 17 August 2023

NAPTOSA on behalf of Phaslin Lindoor Applicant
and
Eastern Cape Education Department Respondent

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing took place virtually on 10 August 2023. The applicant, Ms. Phaslin Lindoor was present and represented by Mr. Anton Adams an official from NAPTOSA. The respondent was present and represented by Mr. Euan Hector, it’s labour relations practitioner. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which was accepted for what it purported to be.

ISSUE TO BE DECIDED

2. I am required to determine whether the respondent owes the applicant her due salaries and benefits. The applicant seeks compensation.

SURVEY OF EVIDENCE AND ARGUMENT

3. This award does not contain everything that was said that the arbitration or in the arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA.

The applicants’ case

4. Ms. Phaslin Lindoor (herein after “the applicant”) testified that she started working for the respondent on 01 October 2021 as a substitute teacher for three months until 31 December 2021. The applicant said that she has never been paid her due salaries and 37% in lieu of benefits as per collective agreement 1 of 2007.

5. The applicant said that the respondent owes her the due salaries of R23 686, 50 multiplied by the three months she worked which totalled R71 059, 50. The respondent further owes her the 37% in lieu of benefits as per collective agreement 1 of 2007 and for the three months it amounted to R26 292, 01 which is R8764, 00 multiplied by the three months. Her total due monies from the respondent is thus R97 351. 51.

6. The respondent did not have cross examination questions for the respondent.

The Respondent’s case
7. Mr. Euan Hector testified for the respondent. He said that he is the labour relations officer for the respondent. Mr. Hector said that the respondent does not dispute the amounts as raised by the applicant. The monies are thus due to the applicant.

8. There were no cross examination questions for the respondent.

ANALYIS OF ARGUMENT:

9. The standard of proof in labour disputes is on balance of probabilities (which version is most probably true). A trier of fact (such as a commissioner) is required to evaluate the evidence cognizant of the above mentioned. The trier of fact is required to determine where the truth lies. Naturally the question that must be answered is whether the probabilities favour the party that bears the burden of proof. This requires an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed relevant and material issues [see Stellenbosch Farmers’ Winery Group and Another v Martell & Kie SA and Others (2003) (1) SA 11 (SCA)].

10. Clause 11.4. of resolution 1 of 2007 holds that “the benefits attached to the appointment of a contract worker shall be granted on the following basis: 11.4.1- a contract worker employed for less than six months shall receive his/ her basic salary plus 37% in lieu of benefits, excluding leave benefits”. The applicant formed part of this section as she employed for less than six months. The undisputed amount of R26 292, 01 is thus due to the applicant.

11. Sectio 69.6 of the ELRC Constitution holds that “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….as it relates to conditions of service, a collective agreement and a contract of employment”.

12. Section 32(1) of the BCEA provides that an employer must pay to an employee any remuneration that is paid in money in South African currency daily, weekly or monthly and in cash, by cheque or by direct deposit into an account designated by the employer. Subsection (3) provides that an employer must pay remuneration no later than 7 days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.

13. The applicant further did not receive her salary of R71 059, 50 for which she worked for. It was not disputed that she was never paid these due monies. No reason was supplied as to why she was not paid these monies. It is an irregularity for the respondent not to have paid the applicant her salaries. The amount of R71 059, 50 is thus due to the applicant.


14. The respondent must thus pay the applicant her due salaries of R71 059, 50 plus the 37% in lieu of benefits amounting to R29 292, 01. The full amount of money due to the applicant is thus R97 351, 51.

AWARD

15. The respondent committed an unfair labour practice by not paying the applicant her due 37% in lieu of benefits as prescribed by resolution 1 of 2007. The respondent further owes the applicant her due salaries.

16. The respondent, Department of Education Eastern Cape, must pay the applicant, Ms. Phaslin Lindoor, R97 351, 51 (Ninety seven thousand three hundred and fifty one rands and fifty one cents) by 31 August 2023.

Panelist: Macjon Maarman
ELRC203-23/24 EC