ELRC77-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC 77-23/24 EC

In the matter between

SADTU obo FANELO BOKVEDT Applicant

and

EASTERN CAPE EDUCATION DEPARTMENT Respondent

PANELIST: YOLISA NDZUTA

LAST HEARD: 5 SEPTEMBER 2023

DATE OF AWARD: 22 SEPTEMBER 2023


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to the alleged failure in backdating payment of pension contributions to the GEPF on behalf of the Applicant as per a settlement agreement.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me initially on the 30th of June 2023 and was concluded on the 5th of September 2023. During the proceedings, the Applicant, Mr Fanelo Bokvedt was represented by Ms Lunga Katywa of SADTU while the Respondent, was represented by Mr Mandla Zozi.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised. The parties also filed bundles of documents which were not objected to and were adopted as being illustrative of what they purported to be.

THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed by the Respondent relating to his pension payment in that the Applicant alleges that same was calculcated incorrectly. The Applicant seeks that his pension payment be rectified and that the outstanding contributions be included.


THE BACKGROUND TO THE DISPUTE

4. In these proceedings the Applicant referred an unfair labour practice relating his pension calculation and payment.

5. The Applicant claimed that he had been contributing towards his pension since he was appointed as a permanent employee at the Department of Education and that his pension upon his retirement did not account for all of his years as a permanent employee.

6. The Respondent disputes the above and argued that the applicant’s dispute required an assessment of actual contributions and a consideration of when the Applicant had a pensionable salary as determined by the internal departmental policies and GEPF (government employee penisino fund) parameters.

SURVEY OF EVIDENCE AND ARGUMENT

7. Each party called a witness to attest to and support their versions, correspondingly the parties were invited to file closing submissions which were duly before myself on the 12th of September 2023.

8. The Applicant testified in support of his case and the following was ascertained therefrom:

8.1 He was first appointed by the Respondent as a temporary educator in 2003 at Mcobololo Senior Secondary School.

8.2 His appointment as a temporary educator was subject to periodic renewals.

8.3 In 2008, his appointment was made permanent after he had referred a dispute before the ELRC and same dispute was reolved per a settlement agreement dated 18 March 2008.

8.4 The abovementioned settlement agreement directed that his date of permanent appointment be changed to 1st of January 2005. To his understanding GEPF was to institute the deductions and backdate them to the appoint date of 1st of January 2005.

8.5 Following the above amendment and settlement agreement, all benefits of permanent employees due to him were paid to him. Also on the 10th of March 2010, there was an acknowledgement from one Mr D Helm of the department wherein he referred to his bonus payments that were due since 2005 as such these payments were to include all other benefits due and backdated.

8.6 He started contributing to pension following the implementation of the settlement agreement.

8.7 Upon his retirement in 2019, he noticed that his pension contributoins were calculated from the 1st of July 2006 until 31st of January 2019.

8.8 Upon discovering the above discreptancy in calculation, he challenged it with the Respondent and the GEPF however he was accordingly advised that the calculation was based on his employment history and pension contributions per his employment history.

8.9 He was then advised by the employer, that his contributions commenced on the 1st of July 2006 although his date of permanent employment reflected 1st of January 2005.

8.10 To his knowledge part of the implementation of the settlement agreement included a deduction of his compensation and salary to account for the pension contributions in the backdated year of employment.


9. The above testimony was subject to cross examination which yielded the following:

9.1 The first salary advice (pay slip) that reflected a pension fund contribution was not in 2005 as he was a temporary educator at the time.

9.2 As a temporary educator there are very few benefits granted to you as such benefits like bonuses, pension deductions and medical aid do not form part of your contract. Only permanently employed staff obtain benefits such as the ones stated.

9.3 After traveling to the GEPF head office, he was advised that his pension was calculated in terms of the PERSAL system which also reflects the deductions.

9.4 In the academic year of 2005, the Applicant was paid as a temporary educator although the status was changed in 2006 due to the settlement agreement.

9.5 The dispute subject to the settlement agreement was pertaining the Applicant’s salary at the time. Prior to the dispute the Applicant was still serving as a temporary educator. To the applicant’s understanding the settlement agreement addressed everything else not just the salary adjustment hence the referral to the amendment of the employment status.

9.6 Having been referred to the GEPF member’s guide and having been requsted to adduce proof of deductions (or contributions) from 1st of January 2005, the witness could not accept that there was no proof of contributions before the arbitration.

10. The Respondent called Mrs Rubushe who testified as follows:

10.1 She was appointed as the Chief Personnel Officer within Human Resources Adminstration & Pensions Department at the Education Department of Eastern Cape- Chris Hani East District in Engcobo local office.

10.2 She was aware of the Applicant’s dispute for quite some time as she was contact by both him and the officials of GEPF regarding his misunderstanding. She also assisted the Applicant with processing his pension claim.

10.3 According to her records and knowledge, the applicant was appointed as a temporary educator between the years of 2003 and 2006. In 2006 a directive was issued compelling the temporary educators who had been appointed with the applicant have their employment status changed to permanent. On the 1st of July 2006 the applicant’s salary became pensionable upon implementation of the latter directive.

10.4 To her knowledge the applicant also referred a dispute that resulted in the settlement agreement of 18 March 2008 which directed the backdating of the applicant’s employment status and payment of certain bonuses. The payments were implemented in 2010.

10.5 One of the benefits imposed was the deduction of pension contributions because a consequence of the directive was that the Applicant’s salary became pensionable from the date of implementation.

10.6 In terms of the GEPF guidelines and directives, the Applicant’s salary was pensionable from the date of first deduction which was the 1st of July 2006. In terms of the GEPF member guide, it is possible for the date wherein pension deductions commence may differ from the date of employment and that may happen when one is employed as permanent employee after hacving served as a temporary employee.

10.7 To her knowledge the Applicant did not contribute to pension during the years he served as a temporary educator being 2003 to 2006. Regardless of the settlement agreement directing that the Applicant’s stauts be amended to permanent, there weren’t any pension contributions between January 2005 and June 2006 as the first pension contribution was 1st of July 2006.

10.8 To her knowledge even after the implementation of the directive, the applicant did not have a lumpsum deduction towards pension for the period backdated.

10.9 Also to her knowledge, the applicant was paid a bonus following the settlement agreement however there weren’t any pension contributions until 1st of July 2006 because his salary only became pensionable following the implementation of the directive.

10.10 Throughout the Applicant’s employement during the academic years of 2003 to 2006, the nature of his appointment was temporary as such he did not contribute towards pension. Upon the amendment of his employment status the applicant’s salary became pensionable and he started contributing towards pension.

11. The above testimony was cross-examined however nothing new could be ascertained from cross-examination as the witness maintained her testimony.

12. The Applicant’s closing submission argued that the Education Department (Ngcobo) -the Respondent- failed to complete the necessary pension correction forms (withdrawal form Z102). The Respondent adopted a casual attitude towards the Applicant’s pension and that resulted in the under paying. The Applicant was permanently employed from 01/01/2005 and the temporary employment status that had ceased on 31/12/2004. On 01/07/2006 the Applicant was grade progressed to a notch adjustment from notch R115575 per annum as such the evidence about the 1st of July 2006 was disputed. Any evidence and argument about pensionable salary only being effected on 1 July 2006 was was superseded by settlement agreement no PSES 469-07/08 EC issued by statutory organ or council (ELRC). Deducing from the evidence and latter argument the service which is pensionable should be from 01/01/2005 to 31/01/2019 = 14.01 years and not the time calculated by the Respondent.

13. The Respondent’s closing submissions argued that the Applicant was misguided in arguing that his salary was pensionable from 2005 because he was contributing towards pension at the time. The Applincant’s pension benefit commenced on the 1st of July 2006 which is the date wherein pensionable service commenced. The Applicant failed to adduce proof of contributing to pension during the years claimed as his salary advice payslips could not prove contribution towards pension before 1st of July 2006.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

14. This dispute is referred as an unfair labour practice,which is defined in terms of section 186(2) of Labour Relations Act 66 of 1995 as:

an act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
[S. 186 amended by s. 41 (a) of Act No. 12 of 2002. Sub-s. (2) added by s. 41 (c) of Act No. 12 of 2002.]

15. In considering the above, my task was to evaluate whether the applicant’s dispute pertaining the respondent’s conduct as constituting an unfair labour practice or not. Should the latter assement establish the existence of an unfair labour practice, then in terms of section 193 (4) of the Labour Relations Act 66 of 1995 my duty as a commissioner is to make an order that is reasonable which may include compensation.

16. The evidence and arguments presented all relate to the definition and application of pensionable salary. The parties dispute as to contributions based on when same were effected against during the pensionable service.

17. The GEPF adopts the definition of pensionable service as the service commencing from the date wherein one becomes a member of the fund (the Government Employees Pension Fund) and begins contributing towards their pension. The latter service may be continuous depending on the service. The latter is defined in schedule 1 of the Government Employees Pendion Law 21 of 1996.

18. In the case of Government Employees Pension Fund and another v Buitendag and others [2006] ZASCA 166 (SCA); 2007 (4) SA 2 (SCA) the honourable court addressed the integral question of what constitutes pensionable service wherein it was clarified that pensionable service strictly means the period wherein a member (as described in the act) contributes towards his pension and the pension fund. The latter was supported in the case of Zono v National Commissioner of Correctional Services N.O and Others (PA10/18) [2020] ZALAC 18; [2020] 9 BLLR 923 (LAC) ; (2020) 41 ILJ 2447 (LAC) (18 May 2020) wherein the court (ad paragraphs 9 to 11) held that pensionable service is period wherein the member paid contributions without drawing a benefit from the pension.

19. Of material interest to this matter is the case of Mhlontlo v Government Employees Pension Fund (2398/20) [2021] ZAECPEHC 46 (19 August 2021) wherein the court determined that wherein a citizen who has contributed to a fund (as defined in the Government Employee’s Pension Law), same citizen is entitled to claim the benefits accrued during the years of service and contribution.

20. Upon consideration of the evidence and submissions, it is not in dispute that the applicant’s employment status commenced as temporary thereafter it was converted to permanent. What is in dispute is whether when the applicant was made permanent was he automatically a member of the pension fund and his salary pensionable as a result thereto or not.

21. It was argued that the applicant was made permanent per a directive initlaly in March 2006 and this was emphasized (albeit an amendment by backdating it to 1st of January 2005) per the settlement agreement of 18 March 2008. The latter though disputed by the applicant, remains the only probability. The Respondent presented documentary evidence and viva voce evidence to sustain the latter, yet the applicant only disputed averments while accepting the correctness of the documentary evidence. Furthermore, the Applicant could not sustain his case when requested to support same with documentary evidence. It therefore is conclusive that on a balance of probabilities that the Applicant’s contributions towards pension commenced on the 1st of July 2006 and not the backdated date of permanent employed of 1 January 2005.

22. Another difficulty that was also facing the case of the Applicant pertained to the question of the council’s authority over the GEPF in enforcing the relief sought. It goes without saying that a relief can be imposed on parties subject to the council (ELRC) including the Education Department of the Eastern Cape. It therefore would be within the council’s power to impose the relief sought only insofar as it is practically possible.

23. The meaning of pensionable salary is clear and the applicant did not meet the parameters of such definintion. More importantly regardless of the settlement one is required to contribute towards pension for the period they will ultimately claim upon their retirement, the latter would be difficult to marry with the applicant’s relief sought given that it failed to prove that it contribute towards pension in the years claimed.

24. In the regard of the above, I make the following award.

AWARD

25. The Applicant has failed established that an unfair labour practice was perpetrated against him by the Respondent.

26. The application is dismissed.

Yolisa Ndzuta
Panelist: ELRC