ELRC362-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC362-23/24EC

In the matter between

SAOU obo A Human Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: AW Howden

HEARD: 31 October 2023

DATE OF AWARD: 01 November 2023

SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 186(2)(a) - unfair labour practice relating to benefits – whether the Respondent acted unfairly by failing to refund the Applicant her bursary funds, after the Respondent failed to pay the bursary money to the institution as per the Skills Development Programme/ Bursary Policy.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended on 25 July 2023). The arbitration was held on 31 October 2023 via a virtual platform – Zoom.

2. The Applicant, Ms A Human – Persal No 16694252, was not present, however was represented by Ms V Van Wyk from the Suid-Afrikaanse Onderwys Unie (SAOU). The Applicant’s Representative had been mandated by the Applicant to represent her at these proceedings and the Respondent’s Representative had no objection.

3. The Respondent, the Department of Education - Eastern Cape, was represented by Ms A Slabbert from the Labour Relations Department.

4. The parties submitted a combined bundle of documents.

5. The proceedings were digitally recorded.

ISSUES IN DISPUTE

6. I am required to determine whether or not the Respondent committed an unfair labour practice by failing to refund the Applicant her bursary money, after the Respondent had failed to pay the bursary money to the institution, and if so to order payment.

BACKGROUND TO THE DISPUTE

7. The Applicant is employed by the Respondent as an Education Psychologist.

8. The Applicant furthered her studies through Rhodes University and received a bursary from the Respondent. In 2022 the Respondent failed to pay the institution the bursary money for that year and the Applicant ended up paying the institution herself.

9. The Applicant seeks to be refunded the bursary money to the amount of R20 000.00.

SURVEY OF EVIDENCE AND ARGUMENT

10. In a Pre-Arbitration Meeting Minutes dated 13 September 2023, the parties agreed that the following is common cause between the parties:
- That this is an unfair labour practice dispute in which the Applicant claims that she is being unfairly treated with regards to benefits.
- That the Applicant undertook studies which she completed in 2022.
- That the Applicant paid for these studies out of her own pocket.
- That the Applicant applied to the Respondent for a bursary which has not been paid.
- That the Respondent agrees that the Applicant is entitled to be paid/refunded in respect of the bursary.
- That although the Applicant claimed for more than R20 000.00, the Respondent only pays up to a maximum of R20 000.00 in respect of bursaries and accordingly only R20 000.00 is due to the Applicant.

11. The parties agreed in the Pre-Arbitration Meeting Minutes that there were no facts or issues in dispute.

12. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

13. The Applicant’s Representative stated the following:
- That the Applicant had received a bursary from the Respondent every year from 2018 to 2021.
- That in 2022 the Respondent did not pay Rhodes University the bursary money and the Applicant had to pay it herself.
- That the Applicant had paid in total R 20 334.00, as interest had accumulated, however was only seeking a refund for the R20 000.00.
- That the Applicant had still not received the money.

The Respondent’s Submissions

14. The Respondent’s Representative stated the following:
- That the Applicant was a bursary holder in terms of the Skills Development Programme/Bursary Policy.
- That the university had not been paid by the Respondent for 2022 and that the Applicant had to pay the amount out of her own pocket.
- That according to the policy R20 000.00 is paid for studies per year.
- That the Respondent is willing to refund the Applicant.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

15. In the Constitution of the Republic of South Africa 1996 paragraph 23 (1) it clearly states:
Everyone has the right to fair labour practices.

16. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving - 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.”

17. It is trite that in Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 ILJ 1120 (LAC) the court broadened the scope of benefits considerably when it held that the definition of a benefit, as contemplated in section 186 (2) (a) of the LRA was not confined to rights arising ex contractu (by virtue of the contract of employment or a collective agreement) or ex lege (the Public Service Act or any other applicable act), but included rights judicially created as well as advantages or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.

18. The Applicant’s Representative has contended that the Respondent had acted unfairly by firstly failing to pay the university the bursary money for which the Applicant had been approved and secondly failing to refund the Applicant the bursary money for which she qualified. Which money the Applicant then had to pay the university out of her own pocket.

19. The Respondent has not contested the fact that the Applicant must be refunded the bursary money for which she was approved and qualified.

20. The parties have agreed, on record, that the Applicant must be paid the amount of R20 000.00 which amount is not taxable.

21. Based on the above submissions and on the balance of probability, it is my finding that the Respondent has committed an unfair labour practice by failing to refund the Applicant the bursary money. Bursary money which should have been paid directly to the institution, however was paid by the Applicant out of her own pocket, due to the non-payment by the Respondent.

22. I therefore make the following award.

AWARD

23. The Respondent, the Department of Education - Eastern Cape has committed and unfair labour practice by failing to refund the Applicant, A Human – Persal No 16694252, the bursary money for 2022.

24. The Respondent, the Department of Education - Eastern Cape, is ordered to pay the Applicant, A Human – Persal No 16694252, the amount of R20 000.00 (Twenty Thousand).

25. The Respondent, the Department of Education – Eastern Cape, is ordered to pay the amount of R20 000 (Twenty Thousand Rand) which amount is non-taxable, by no later than 30 November 2023.


Panellist: AW Howden
ELRC