ELRC187-23/24WC

Panelist : Alta Reynolds

Case Number : ELRC187-23/24WC

Date of Award : 4 December 2023


In the ARBITRATION between:


SAMANTHA HEIDI NIEMAND
(Union/Applicant)

and

WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to benefits referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted virtually via Zoom video conferencing over four sittings on 12 September 2023, 18 October 2023, 19 October 2023 and 17 November 2023.

2. Present for the referring employee (the Applicant) were Ms Cailyn Harris (NAPTOSA Official as Representative) and Ms Samantha Heidi Niemand (the Applicant). Present for the employer, the Western Cape Education Department (the Respondent), was Mr Tebogo Seelamo (Labour Relations Officer as Representative).

3. The proceedings were conducted in English with Zoom, digital and electronic recordings made.

4. An explanation of the arbitration proceedings was provided for the benefit of the Applicant, which included the onus of proof and the basic rules of evidence.


5. It was noted that the nature of the dispute had been categorised under “Other” on the ELRC Form E1 by the Applicant, who was not assisted by NAPTOSA at the time of referring the dispute. The parties agreed at the commencement of the arbitration that the nature of the dispute be corrected to be categorised as an alleged unfair labour practice relating to benefits.

6. A preliminary issue was raised by the Respondent requesting that the arbitration be determined on papers only, which was not objected to by the Applicant party. Since the parties had not agreed on or presented a written stated case as pointed out in the judgement in Arends and Others v South African Local Government Bargaining Council and Others [2015] 1 BLLR 23 (LAC) I informed them that in the circumstances oral evidence also needed to be led in order to determine the matter.

7. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments simultaneously to the ELRC’s Case Management Officer and copied to one another and the Panelist via e-mail by 24 November 2023. The Applicant’s closing arguments were received on due date. The Respondent had requested an extension of their closing arguments to 27 November 2023, which was granted and received on that date. The ELRC was requested to amend the award due date accordingly on the case management system.

8. The Respondent’s Representative also committed to arrange and obtain a quantification of the benefit claimed by the Applicant from the appropriate authority by not later than 24 November 2023, since this was not available or could be testified to during the arbitration proceedings, which was received on 27 November 2023 with their closing arguments.

ISSUE TO BE DECIDED

9. The purpose of this arbitration is to determine whether the Respondent had committed an unfair labour practice relating to benefits in terms of section 186 (2)(a) of the LRA by not paying the Applicant a rental housing allowance subsidy in terms of the provisions of the Government Employees Housing Scheme (GEHS) for the period 1 October 2020 to 31 October 2022, and if unfairness is found, that the subsidy, which was later quantified in the amount of R35 848.41, be paid into the Individual Linked Savings Facility (ILSF) for the Applicant.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

10. The Applicant commenced permanent employment with the Respondent on 31 March 2020 as a Post Level 1 Educator at Sunningdale Primary School, Western Cape, teaching Music to Grades R to 7. Her persal number is 56605412 and she currently earns a gross basic salary of R27 318,25 per month. The Applicant applied for a rental housing allowance subsidy on 2 June 2020 in terms of the provisions of the Government Employees Housing Scheme (GEHS) which is paid into the Individual Linked Savings Facility (ILSF) for individual employees. These savings can be applied for when an employee purchases property in the future. The Applicant was not paid the subsidy for the period 1 October 2020 to 31 October 2022 (the disputed period).

The following facts were in dispute:

11. The period(s) for which the Applicant did receive the rental housing allowance subsidy after she made application on 2 June 2020.

12. Whether the Applicant was entitled to payment of the rental housing allowance subsidy for the disputed period.

13. Whether the Applicant had followed up on the non-payment of the subsidy and had not received a response from the Respondent until 26 October 2022 as to the reason for the non-payment for the disputed period.

14. If the Applicant was entitled to this payment for the disputed period, what the reason was that the payment was declined by the Respondent.

15. Whether the Respondent had committed an unfair labour practice by not paying the Applicant the rental housing allowance subsidy for the period 1 October 2020 to 31 October 2022.

SURVEY OF EVIDENCE AND ARGUMENT

16. Ms Samantha Heidi Niemand, the Applicant, testified under oath for her case.

17. Ms Lericia Anthea Pillay, Human Resources Officer, Ms Shereen Gideon, Assistant Director: Service Benefits, and Ms Bernadette Tataw, Deputy Director: Human Resources, testified under oath for the Respondent.

18. Documents were handed in by both parties during the course of the arbitration and admitted as evidence. It is noted that a screenshot of a WhatsApp message of Ms Quinzy van der Berg of GEHS to the Applicant, as referred to by the Applicant in her evidence, was requested from the Respondent, but could not be obtained by the Representative due to being informed that the message could not be retrieved due to Ms van der Berg having been allocated a new computer, with reference made instead to confirmatory documents contained in the Respondent’s bundles of documents.

19. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, where relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

20. The Applicant’s case was that the Applicant applied for a housing rental subsidy through the GEHS on 2 June 2020. She subsequently submitted the documentation physically during Covid lockdown to the Respondent on 22 June 2020. The Applicant felt she is entitled to the subsidy payment for the period from 1 October 2020 to 31 October 2022 as she was never informed by the Respondent that she needed to submit a new lease agreement and submit new documentation. She was also never informed of a time frame to submit an application and she followed up on numerous occasions, but got no response. The Applicant felt she was unfairly treated and disadvantaged by the Respondent and requested that all outstanding amounts be paid into her rental savings with the ILSF for the period 1 October to 2020 to 31 October 2022. She was not informed that she had to apply for renewal of the subsidy every time the rental lease on the property she and her family occupied expired. The Applicant was only informed in October 2022 that she had to submit a new lease agreement when the previous one expired, whereafter she submitted all the lease agreements. Rental savings were paid to her for July, August and September 2020.

21. Ms Samantha Heidi Niemand, the Applicant, testified as follows under oath in her evidence in chief: Prior to being employed permanently as a Post Level 1 Educator at Sunnningdale Primary School with effect from 31 March 2020 she was employed by the School Governing Body (SGB) from January 2014. She was referred to the summary of the dispute headed Educator Grievance Form which she had compiled and was included in the Applicant’s bundle of documents, of which the detail is not repeated here. She explained the process that she followed to apply for the rental subsidy on 2 June 2020, which was as follows: She had contacted the GEHS on line on 2 June 2020, who sent her the relevant forms to complete, which she completed and e-mailed back, with the hard copies dropped off at the drop box at Grand Central Towers on 22 June 2020 (since it was during Covid) as instructed by Ms Quinzy van der Berg of the GEHS.

22. Since it was during Covid and she was concerned that her documents were not received, she followed up on 6 July 2020, 13 July 2020 and 18 July 2020 with the GEHS and the WCED Walk-In Centre, as detailed in her summary. An automatic response was received from the WCED Walk-In Centre on 6 July 2020, but since she wanted to speak to a person she followed up again on 13 July 2020 with the GEHS and the WCED Walk in Centre. A response was received from Ms Celeste Pierce of the GEHS on 21 July 2020 requesting certain information, which she provided to her on the same day. Further correspondence followed, of which the detail is not repeated here. The GEHS eventually referred her to Ms Bernadette Tataw of the WCED, to whom she emailed on 28 July 2020 to enquire if her application was in order, to which was responded to by Ms Lerecia Pillay on 28 July 2020. Ms van der Berg of the GEHS had replied on 3 August 2020 that according to Ms Pillay of the WCED her application was on the system and that she would check for her on that Wednesday, with her understanding that all her forms were in place and that it should reflect on her salary slip, although nothing was received in writing. She reminded Ms van der Berg via e-mail, who responded on 5 August 2020 that the housing allowance was loaded on the system with her August 2020 salary, backpaid to July 2020.

23. During the times she e-mailed correspondence to the WCED the Respondent had not initiated any direct correspondence to her, apart from the Walk In Centre auto replies. Ms van der Berg of the GEHS had explained to her by telephone that the rental allowance would not be reflected in her bank account and that the subsidy will be saved every month in her individual savings account until she purchases property, in which case she can withdraw the funds. She did not follow up again since she received that screenshot from Ms van der Berg and because it was Covid and there were generally delays in receiving payslips from the Respondent, when she noticed that the allowance did not reflect on her payslip, until 23 July 2021 when she e-mailed Ms van der Berg again and asked for a summary of her GEHS savings as it was not reflecting on her payslip and asked a statement of account and summary of her funds, to which Ms van der Berg did not respond to. A response was however received from Ms Busisiwe Mantanga, a Walk In Centre Agent, with a screenshot of the August 2020 payslip which looked different to the one Ms van der Berg of the GEHS sent her. Further correspondence with officials ensued, to which no response was received. When no response was received to her enquiry about the September 2020 end date that appeared for her savings, she felt no reason for concern and decided to hold back on purchasing property.

24. On 29 December 2021, eighteen months after she had applied on 2 June 2020 and followed up with the Respondent she received a generic e-mail from the Walk In Centre to welcome her to GEHS. During October 2022 they again looked at purchasing property and she was concerned about the state of her rental savings due to lack of response. She then on 23 October 2022 e-mailed the GEHS requesting her savings account balance since it was not reflecting on her payslip and they asked her to send information, which she did on the same day. The GEHS responded to her on 25 October 2022 and informed that they do not send account statements and that quarterly statements of savings can be obtained on the website, which was the first time she became aware that there were no rental savings for those months. That was also the first time she was informed that she must send an updated lease agreement every time it expired. Ms Lerecia Pillay responded to her on 26 October 2023 that in order to qualify she must submit updated lease agreements and that these cannot be backdated. She did not receive any evidence that stated that the lease agreements must be continuously updated. She asked for an update on 2 November 2022 but did not receive a response, as well as on 14 November 2022 and 16 November 2022 with no responses and subsequently contacted NAPTOSA on 20 February 2023. A grievance was submitted and a grievance meeting was held with Ms Tataw and Ms Harris with a colleague Mr Noelen Dubet of NAPTOSA present. During this meeting Ms Tataw stated that the lease agreements were not accepted because they were sent in late and she also did not accept that she, the Applilcant, was not informed about this.

25. She was referred to the Respondent’s Housing Allowance Rules and Regulations. She confirmed that she had the received the housing allowance confirmation certificate or enrolment letter. She was not given assistance by the Respondent as provided for in these Rules and Regulations. Her understanding as to what was needed to apply for a housing allowance was that she must prove that she is renting a property by way of the rental agreement and that the allowance would apply while she is renting, until she ceased to rent. The Rules and Regulations did not state that a new rental or lease agreement must be submitted every time the previous one expired, except that a rental agreement must be renewed after two years. The two years would have expired on 2 June 2022 after she had applied on 2 June 2020, whereas the Respondent had stopped putting money in her housing savings account on 30 September 2020. The document headed Sheet to Validate Applications for Housing Allowance for Tenants did not state the time period for the lease agreement or about the expiry of the lease agreement. She believed there had been unfairness since she was misinformed and that the information was not given to her that she must renew the lease when it expired, with no evidence found that she must renew the lease every time it expired, with only the two years referred to. She had also submitted all the documentation when it was requested, with the Respondent being in possession of all the lease agreements up till end June 2023. The savings should have continued after the original lease expired, except for the two months of April 2022 and May 2022 when a lease agreement was not available and she did not expect to be paid for those two months.

26. Ms Niemand testified as follows under cross-examination: She confirmed that she had read and understood all the housing allowance directives prior to completing the application forms. When she applied it was during Covid. She acknowledged that the Respondent was shut down and staff were not attending their respective workplaces, as a result of which auto-replies were received. Her understanding of staff rotation at the time was that people were just passing the buck and not providing her with the information that she needed and always referred her to somebody else. If it was a case that Officials were not available, she would accept that they would reply to an enquiry when they became available, but not take two years to do so. As to the non-responsiveness of Officials during 2020 that she had referred to, many of her e-mails were not responded to, but she agreed there was some response at some point, further that not every e-mail was responded to and not always to the questions she was asking.

27. She repeated the process that she followed in 2020. She had received numerous responses from the GEHS but not from the Respondent and also not to all her questions. She understood the process to apply for a housing allowance and in her the opinion the Respondent required her to ensure that all documentation and signatures were in place. She agreed that she needed to be aware of all the policies and directives before she applied for a housing allowance, which is why she asked for proof that stated that a rental agreement must be renewed since it is not stated in the Directive. She agreed it was a personal choice, but not an obligation, for employees to apply for a government rental allowance. It was her responsibility to consult the policy of the particular Department and the DPSA Directive before applying for a housing allowance. She was referred to her housing allowance application which she completed dated 27 May 2020 when she applied for the housing subsidy, in particular subsection (c) under Section E, which states that she undertakes to inform the employer should there be any changes in her situation as a home owner and occupancy of her home. This was her first application and there was no change in her situation, hence the subsidy would automatically continue. It was correct that her first rental allowance application was received and the allowance was allocated from 1 July 2020 to 30 September 2020, which documents were all done correctly and that period was not in dispute. The original application was sent through on 2 June 2020 and was within the two year period, with only one application required in her opinion.

28. She had applied for the rental allowance for the period from 1 October 2020 to 31 October 2022 that she had claimed as relief, since it was her understanding that her first application applied for two years and therefore covered that period. Her original application did not state a time frame since the directive stated that she must only re-apply after two years, hence there was no time frame for the application that expired on 30 September 2020. Her understanding of clause 5.4 of the Housing Allowance Rules and Regulations was that a rental agreement must be renewed every two years and it does not state that it must be renewed every time the lease agreement expires. As to a Respondent’s witness who would testify that she did not apply for the disputed period and that it was her responsibility to ensure that she needed to inform the Respondent each and every time that her lease agreement expired, she responded that she respectfully disagreed, which is why she asked for proof of that and had not seen it yet. If that is what the Respondent required, it should have been put in the Directive. She did not expect the Respondent to remind her to renew the lease agreements but expected the information to be available from the beginning, as it is not protocol and not in the Directive. She had sent in lease agreements from October 2020 onwards when she was asked for the first time on 30 October 2022 to supply these lease agreements. She felt it was fair for the Respondent to pay her for the periods already passed, as she only on 26 October 2022 for the first time received a response to her question about the Respondent not paying her savings and that the outstanding lease agreements are required.

29. She was referred to her lease agreement of March 2021 for the period of 1 April 2021 to 31 March 2022 which was received in 2021. She sent this lease agreement when required to send it at a later stage. The period was already passed but she was not informed that she needed to supply it. There was no onus on her to send it to the Respondent, since there was no mention in the Directive that she needed to send a new application. With reference to Section E subsection (c) of the Housing Allowance Application for Tenants she did not feel the rental continuing is a change in any way. She was to inform the Respondent of any changes and there was no change in her situation, where she lived or her circumstances. Renewing the lease does not change your eligibility for the housing allowance. She agreed the lease agreement commencing 25 March 2020 had a start date and end date of 30 September 2020. She did not see this as a change, since when a property is rented the landlord will give a certain period of time and when it is renewed it is not changing where you are staying, with leases changing every year as the rent increases, hence the renewal is not a change. The Respondent also does not state that one must re-apply if the rental amount changes or the lease is renewed.

30. As to whether the Respondent should have made an assumption that from 25 March 2020 to 30 September 2020, that she was going to continue renting at this particular address and give money without her coming forward to testified that she is still renting there, she responded that since she did not receive anything in writing she could assume that, also that she had not informed the Respondent in writing of any change and that there is the two-year clause. The Respondent could assume that she was continuing renting at that address as she had not informed them of any changes. She disagreed that she was not paid for the periods because she had not re-applied when the lease was renewed, because it does not say anywhere that she has to re-apply when the lease agreement is renewed. She expected the Respondent to pay her the housing subsidy from 1 October 2020 to 31 October 2022, although the lease agreement was submitted later than the official period. She did not feel it was her responsibility to bring to the attention of the Respondent that the lease had ended and that a new application must be submitted, since she would only take responsibility for something she was aware of she needed to do, which was not the case. She did not provide a lease agreement for April 2022 and May 2022 and did not expect to get paid for this because there was no lease agreement for that period. As to why she was inconsistent in not wanting to be paid for two months and to be paid for the other period, she did not agree she was inconsistent, since she was only told in October 2022 that they needed the lease agreements and she did not have one for those two months.

31. No re-examination was required of this witness.

THE RESPONDENTS’ EVIDENCE

32. The Respondent’s case was that they were not in a position to settle the dispute. The housing allowance application form signed by the Applicant clearly states the lease agreement must be renewed at the end of the period stipulated in the application form or after every two years. They were of the view that the periods that the Applicant had applied for were paid. The reason why the Respondent did not pay the Applicant the rental subsidy for the period in dispute is because the Applicant had not applied to renew the lease, which was her responsibility to do. The housing allowance benefit was not an open agreement, with the responsibility of every employee to re-apply for the benefit after a lease is renewed or after every two years. The Applicant should have thoroughly checked the housing allowance application before lodging the dispute. Back-payment of the housing allowance was also not allowed.

33. Ms Lericia Anthea Pillay, Human Resources Officer, testified as follows under oath in her evidence in chief: She is a Human Resources Officer in Service Benefits Multifunctional Team (MFT) North and Supervisor for MFT North housing coordination and all conditions of services for employees of MFT North. She explained the procedure to be followed in terms of the Respondent’s housing subsidy policy. The first step is that an employee needs to register on the GEHS website and after enrolling he or she needs to print the enrolment certificate. The next step in order to qualify for the housing allowance is that the applicant employee must apply on the prescribed forms of the Department of Public Service and Administration (DPSA). Once completed, a duly completed application must be submitted to Service Benefits which will include the GEHS rental application, the enrolment certificate, the employee’s occupancy affidavit, the lease agreement with the start and end date, which must be signed by both landlord and lessee and the witnesses, with the nomination of beneficiary form attached. Once all documentation is duly completed, they will then proceed to instate the benefit on the Persal system. If they don’t receive any renewed lease agreement or application they cannot award any housing allowance since the Respondent can only react on a duly completed application once received. The onus is on the applicant employee to apply or submit a renewed lease agreement.

34. Ms Pillay testified as follows under cross-examination: She responded to the question in which Directive of the Respondent it states that the lease agreement must have a start and end date, and referred to clauses 5.3 and 5.4 of the Housing Allowance Rules and Regulations which states that rental agreements must be renewed every two years, which meant they must have a start and end date. As to how a Post Level 1 Educator would read clause 5.3 which states that an employee who rents a house will qualify for the housing allowance if he or she holds a rental agreement on the house that he or she and/or his or her immediate family is/are occupying, and understands that this clause only relates to a rental agreement on a house and does not state that the rental agreement must have a start and end date, she responded that a rental agreement between the landlord and lessee will always have a start and end date to occupy a house, with them in Service Benefits being guided by the lease agreement.

35. She was referred again to clause 5.4 which states that only written rental/lease agreements will be accepted for purposes of the housing allowance and that rental agreements must be renewed every two years, but does not say that the lease must be renewed after it ends nor does it refer to a start and end date, to which she responded that there must be a start and end date to calculate the two years. With reference to Section E (c) of the Housing Allowance Application Form for Tenants, the Applicant’s situation had changed because the lease agreement expired on 30 September 2020, with the onus on her to inform the Respondent that her situation had changed. As to the Applicant’s version that according to her no changes had occurred since she was in the same residence and her only change would be if she changed residence, the lease agreement submitted was to 30 September 2020 and in order to receive the allowance the Applicant had to submit a new lease agreement.

36. With respect to the Applicant’s e-mail correspondence with Ms Quinzy van der Berg of GEHS of 3 August 2020, that correspondence in which Ms van der Berg had informed the Applicant that according to her, Ms Pillay, the application and lease agreement for the period ending 30 September 2020 had been approved and was on the system, was only sent to her by the Applicant on 26 October 2022, with that correspondence having been between the Applicant and Ms van der Berg and the Walk In Centre where clients are assisted, and not herself. The role of the Human Resources Department in the housing allowance and individual savings scheme was to only implement the rental allowances on their side on Persal. The enquiries are done through GEHS for savings and they at Human Resources only got the function last year in 2022 to access the system and see the estimated amount subject to tax in an employee’s savings account. Prior to that all enquiries for savings were done through GEHS.

37. She remembered the e-mails between her and the Applicant on 26 October 2022 in which she requested that the Applicant send a copy of the application that was submitted to their offices, and the Applicant on the same date forwarded the original e-mail and the application documents that she had submitted on 2 June 2020. She confirmed the e-mail that the Applicant also sent on 26 October 2022 after she responded to the Applicant on 26 October 2022 that she needed to send an updated lease agreement afer her original lease agreement expired in order to qualify for continuous rental, also that the Applicant had replied why this information was not communicated to her and that she expected back-pay. As to why she did not respond to the Applicant’s subsequent follow up e-mails on 30 October 2022, 2 November 2022 and 14 November 2022, she referred to her e-mail to the Applicant on 26 October 2022 in which she informed that the Applicant should send her documents to Mr Sobokter since she and Ms Daneil Abrahams would be on study leave, and she herself could not respond whilst she was on study leave. She could not comment on what information Ms van der Berg had provided to the Applicant in addition to the screenshot of 5 August 2020 relating to her GEHS individual savings status. She was not sure whether she had responded to the Applicant when the Applicant requested the clauses where that information was stated regarding the lease renewals.

38. The Applicant had sent four lease agreements on 30 October 2022. The first one from 1 July 2020 to 30 September 2020 was awarded and instated. The second lease agreement for the period 1 October 2020 to 31 March 2021 was not awarded since it was received outside the time frame. The third lease agreement for the period 1 April 2021 to 31 March 2022 was also not awarded because it was received outside the time frame. If the second application and lease agreement were submitted by 1 October 2020 then they would have implemented it since an employee will start receiving his or her housing allowance in the month applied for, but these applications came two years later. The allowance cannot be backdated and can only commence from the current month in which the application is submitted and awarded. She agreed that the Respondent sends out circulars and information, including stating that it is a caring and responsive organisation and that a Post Level 1 Educator is not expected to understand Human Resources procedures.

39. They had workshops, go to schools and educate Educators regarding the housing benefit. Resolution 7 of 2015 Framework Agreement for the Establishment of a Government Employees Housing Scheme (GEHS) is sent to the school Principals and they as the line managers have the onus to inform the staff members. Principals also invite them to their schools to explain the scheme to staff members and explain what documentation they need. As to how the Applicant was supposed to know when she did not get a response to her enquiries and received no documentation to give her this information, she explained that when the Applicant signs a lease agreement she reads and initials every page and knows she must sign a lease agreement, which clearly states a start and end date and she does not need to know the Collective Agreement to do so. The onus was on the Applicant to provide a signed lease agreement. As to the Directive not referring to times and dates, that was incorrect since it clearly states it is required documentation in that specific month, which cannot be done if the signed lease agreement is not submitted. When you sign an application form and lease agreement you know what you are signing for, as these are legal documents. She responded to the Applicant’s version that she read the Determination, did not get a response from the Respondent, submitted an application and felt she was entitled to the payment, that the trend of the Applicant’s e-mail correspondence was mostly to the Walk In Centre enquiring about her savings, and knew the first lease agreement had expired, signed the other three agreements and still submitted them. She was present in the meeting with the Applicant regarding the lease agreements from 1 October 2020 to 31 May 2023 and in that meeting her Deputy Director had informed the Applicant that the lease agreements were expiring 31 May 2023 and that she must submit a new lease agreement and the Applicant had at 19 October 2023 not submitted a new lease agreement yet. If the Applicant intends buying a house she needs to continue with the savings and has not received a subsidy again to date.

40. No re-examination was required of this witness.

41. Ms Shereen Gideon, Assistant Director: Services Benefits, testified as follows under oath in her evidence in chief: In this position in Human Resources she advises her Manager and Deputy Director on all aspects of Service Benefits, appointments, leave, housing allowances, exits and everything in between. She explained about the Applicant’s housing allowance applications. The Applicant had applied for rental allowances during Covid and they did not have working from home at the time, therefore her applications came in when they were all staying at home. The application for the tenant housing allowance was on the incorrect form and changed in 2015 and because they could not travel, they awarded the rental allowance to the Applicant. The rental application form that the Applicant had completed at the time indicated that she had rented from a private landlord, for which a rental agreement must be supplied and is the legal document to support an application for a rental allowance, which was accompanied by a sworn affidavit that she and her spouse occupied the house at that address from 1 April 2020. The application is only acceptable and legal if it is signed by the Applicant, which was signed and dated on 27 May 2020.

42. Section E (c) of the rental application is the most important part in which the Applicant undertakes to inform the Respondent of any changes in her situation, such as when there is any change in her lease agreement. The lease agreement is standard and will state who is the agent or landlord and the renter, with their details, as well as the start and end date of 25 March 2020 to 30 September 2020, indicating that this legal document is only applicable to that period. Once this application is received in their office and it is in line with the DPSA policy, a transaction is captured on Persal. Everything captured on Persal will have a start and end date. According to the application the end date, and when this legal document ended, was 30 September 2020. They could only award what they received. They worked with a lot of applications for over 200 schools in their MFT alone and guided Principals on the required documents for housing allowance applications, with reference to the relevant clauses in the Housing Allowance Rules and Regulations. Clause 7.2 of the Rules and Regulations stated that an employee is obliged to notify his or her department in writing of any changes that effect his or her eligibility for the housing allowance.

43. The lease agreement supplied by the Applicant for the period from 25 March 2020 to 30 September 2020 meant that there was no legal lease agreement from after 30 September 2020 and the Respondent can only implement what is contained in the lease agreement. The Applicant was obliged to notify the Respondent of any changes and she did not provide anything after that application was received. They could only implement what was given to them and can only capture what is in the lease agreement and the end date specified there, as Persal will not allow a Clerk to proceed if no end date is captured on Persal. Clause 8.2 of the Rules and Regulations state that an employee’s housing allowance will stop on the pay date that the employee no longer meets the requirements for a housing allowance. The last date according to the contract was 30 September 2020, which was the last date that the Applicant received the housing allowance.

44. As to what transpired in between, no new lease agreement was received in their office and she believed that there were e-mails back and forth, but she could only speak to what was received in their office and what they could capture in terms of housing allowances. The Applicant submitted four lease agreements on 2 November 2022 of which the first one for the period 25 March 2020 to 30 September 2020 signed on 23 March 2020 was received in June 2020 and had been awarded. Clause 8.1 of the Rules and Regulations stated that an employee will receive the housing allowance on the payday of the month that the signed documents are received. Because they received the documents in June 2020 the rental allowance was awarded for the period 1 July 2020 to the end date of the lease agreement of 30 September 2020. The second lease agreement received on 2 November 2022 was for the period from 1 October 2020 to 31 March 2021, which was with the same landlord and for the same property and was signed on 27 August 2020. The third lease agreement received on 2 November 2022 was for the period from 1 April 2021 to 31 March 2022 signed in March 2021 (no date provided). The fourth lease agreement received on 2 November 2022 was for the period 1 June 2022 to 31 May 2023. In line with the GEHS every time a new lease agreement is signed a full application must be submitted. Since the effective date for the implementation of rental allowances are from the payday when the signed documents are received, being the applications and rental agreements, only the first and last applications were awarded and could be implemented. Persal did not allow them to capture backdated as it is designed in line with policy and will not allow a transaction to be captured unless an end date is provided.

45. They are guided by policy and can only do what policy dictated. She conducted auditing for Service Benefits and would ask for the policy, where is the application and why something is awarded that is received in November that goes back to 2021 if the applicant employee did not submit it timeously. She confirmed that the Applicant only complied with the first application with the lease period of 25 March 2020 to 30 September 2020 and the last application for the lease period from 1 October 2022 to 31 May 2023, which were both awarded.

46. Ms Gideon testified as follows under cross-examination: As Assistant Director: Service Benefits part of her work was to recommend and advise on service benefits. She acknowledged that her explanation of how the housing allowance applications are completed are based on expert knowledge and procedure, since Persal is linked to policy. They serve over 2000 employees and can only react to what they receive and will advise the applicant employee if any documents are outstanding. They followed up on outstanding documents. As to the Applicant’s version that she followed up on numerous occasions and whether the Respondent had followed up with her with respect to her applications, she responded that the Applicant’s first application was on the old form but due to Covid they awarded the rental allowance to her based on that rental contract. All that they had on record that the Applicant asked for was the enquiries to Client Services and a request for quotations, with the Applicant being provided with a quotation on how much was in her savings account. She responded to the Applicant’s version that she had sent e-mails and requested the calculated savings amounts and had never received that, that the amount saved normally appears at the bottom of the payslip, which was sent to Client Services, therefore she could not speak to that. She believed that Ms Pillay had spoken to the Applicant at the time, but she was not aware what was communicated to the Applicant.

47. Their Directorate does not calculate the savings amounts, which are provided by GHES. Like leave, the savings amounts are provided on the payslips. They as the Respondent did not have the monetary evaluation of the housing benefit. They capture the rental allowances in terms of the lease agreements, which goes into the employee’s savings and is directly linked to GEHS and from there appears on the payslip. Two amounts were provided for the Applicant’s GEHS saving information from Persal, the one in the amount of R 11 048.59 for the period 1 October 2022 to 31 May 2023 and the other in the amount of R1398.35 for the period 1 July 2020 to 30 September 2020. She explained these amounts. The amount of R 1 398.35 was a monthly rental allowance paid into the Applicant’s savings account for the period awarded from 1 July 2020 to 30 September 2020. The current rental allowance is in the region of R1 600.00 per month. The Directive/Housing Allowance Application Form for Tenants in Section B Rental Status is silent about when a lease expires, but it has to be read with R2 which states that proof of a rental agreement must be attached to the application form. The rental agreement has a start and end date and is a legal document, a binding contract, and it would be illegal to go beyond what the contract says.

48. As to the Applicant’s version that she is a Post Level 1 Educator with the full function of teaching and would not be expected to understand that a rental agreement must be submitted every time it expires if the directive is silent on that and she never received the information to explain it to her, she responded that she agreed the Applicant’s core function was that of an Educator but that she must nevertheless handle her personal matters correctly and that Section B Rental Status must be read with Section E relating to declarations etc. You did not need to read a policy to know that when a contract expires a new contract must be referred, whilst the Applicant had undertaken to inform the Respondent of any changes as a home owner or tenant. By signing a new contract is a change and Persal is programmed to need an end date. She queried how the Respondent would know of this if the Applicant does not submit a new contract (rental agreement). The Applicant knew she had to inform the Respondent as she had applied the first time, had read the application form and applied for a rental allowance. It is common knowledge that when a lease expires the old document is not in play anymore but the contract tells one that you must submit another contract. As to whether this process was explained to the Applicant, she could not comment on what happens at the school, since it is up to the Principal to give Circulars to Educators, with the process explained in the application form, although it does not say a new lease agreement must be submitted every time. She agreed the policy is silent on this, but when the lease period expires, one must apply again.

49. Although the application form does not say that an applicant must re-apply if there is a new lease agreement, it does state that one must inform the Respondent of any changes and that the lease agreement has changed and for a new period. She was referred to the Applicant’s version and correspondence that she had followed up with the Respondent on numerous times, and stated that she could not comment for other people, but saw that the fourth application was also awarded to the Applicant. She was referred to clause 5.4 of the Housing Allowance Rules and Regulations which read that only written rental agreements will be accepted and must be renewed every two years, as well as her, Ms Gideon’s, version that a new lease agreement must be submitted every time it expires and asked which took precedence, to which she responded that they often get rental agreements which are indefinite with no end date, such as a person staying with their parents, which is why it states it can only be awarded for two years, when clause 5.4 then applies. As to where it was stated that an indefinite lease agreement must be renewed every two years and others that expired must be applied for anew, she responded that the Applicant knew the lease agreement ended and signed a new document, hence how could she expect the Respondent to give her a rental allowance beyond the lease agreement end date. She agreed that the policy, being the Rules and Regulations, was silent in clause 5.4 about a lease agreement with an end date and only referred to two years.

50. No re-examination was required of this witness.

51. Ms Bernadette Tataw, Deputy Director: Human Resources, testified as follows under oath in her evidence in chief: In this position of Deputy Director working in Human Resources they deal with policies. She has fifteen years’ experience with the Respondent, and also had a few years’ experience with the Education Labour Relations Council in the dispute resolution section. In her previous career she was also an Educator. She went through the housing allowance policy utilised by the Respondent, of which all the detail is not repeated here, save the salient points raised, and reminded that they are guided by policy, rules and legislation, with reference to the Housing Allowance Rules and Regulations for employees in the Public Service. When an employee receives an appointment letter and becomes a permanent employee, you can apply for conditions of service such as a housing allowance, which can also be applied for if a property is being rented. Only written rental agreements are accepted, which are legal documents and must have a start and end date, and from which they work when an application is received.

52. She clarified that clause 5.4 of the Rules and Regulations which says that rental agreements must be renewed every two years, means that a rental agreement negotiated with a property owner, or is indefinite, cannot go beyond two years. Since they are guided by legislation and policies and they are audited, the Auditor General will focus if they had captured the allowances correctly and would look at the rental agreement start and end date, and if it goes beyond two years consequence management and also fraud can apply. Therefore, a rental allowance application can be for six, nine or eighteen months but must not be beyond two years. Reference is made in clause 5.5 of the Rules and Regulations of the prescribed application form, of which the new form was introduced in 2015 and in clause 5.6 it states that the application must be accompanied by the signed application, including the correct documentary proof such as the rental/lease agreement with a start and end date signed by the applicant employee and the lessor, as well as the nomination of beneficiary form. These documents are checked and scanned by Human Resources once received. It was important for them that Section E relating to declarations of the Housing Allowance Application Form for Tenants is signed. Subsection (c) of Section E was important too, as the applicant employee when signing the application also undertakes to inform the Respondent should there be any changes, as it is always important to inform the Respondent of changes such as a new rental agreement. If they are informed of a new rental agreement by e-mail then they will inform the employee that it cannot be accepted and that they must do a new application again. The onus is also on the employee to inform the Respondent, for example if you have divorced, you must provide the divorce settlement agreement or decree as evidence for updating on Persal. The responsibility of the Respondent with respect to the process of the housing allowance application is that when Human Resources has received the documentation they must check if the correct documents have been completed, that both signatures appear on the rental agreement, that the rental agreement has a start and end date that does not go beyond two years, and to capture it and approve the application on Persal. Their responsibility was very clear that if an Educator or public servant applies for a rental subsidy and the documents are correct, that it must be captured since the person deserves the allowance.

53. Ms Tataw testified as follows under cross-examination: As to whether the process that she explained in her evidence in chief was explained to Educators in terms of what is expected of them, she responded that a Circular went out to Educators to apply for the housing allowance, which was not a new thing, with the only change being that they can get a saving. They have public servants appointed with the Respondent, of whom all had applied for the housing allowance, and all had followed the correct procedure in her fifteen years with the Respondent. This was the first time she had encountered that somebody does not understand the process. She had picked up that the Applicant had in 2020 during Covid applied for a rental allowance and the documents had been completed, although on the incorrect documentation, but they understood the position during lockdown and did pay her.

54. The first application was totally correct, with the second and third being in dispute, and in that first application the Applicant had also signed off the declaration and undertaking that she would inform the employer (Respondent) of any changes, which is why she, Ms Tataw, was battling with the idea that the Applicant did not understand if the first application was correct. Her observation was that the Applicant did understand the process. She was referred to the Applicant’s summary of her grievance and the correspondence in which the Applicant asked if the documents provided were completed correctly, which indicated that she did not understand the process, and to which enquiries there was no response from the Respondent, to which she responded that in that period there was a hard lock down due to Covid and that she herself had not seen that documentation, with all that she could say was that what was submitted during Covid was done correctly and that the Applicant had received the rental allowance.

55. The Applicant’s interpretation of Section E (c) was put to her in that the Applicant’s knowledge and understanding was that she should inform the Respondent of any changes if there was an address and status change since she had been in the same residence for the duration of the lease agreement(s), which was followed up with the Respondent, with no response. She responded that although the Applicant was a Post Level 1 Educator, she had a Bachelor’s degree and had signed the rental agreement with a start and end date, with it difficult to accept that she did not understand when she had signed the documentation. As to that degree being in education with no legal background and that the Respondent must not assume that the Applicant knows what is going on, she questioned whether the Applicant had ever sent an e-mail to the Respondent to say that her contract (lease) has expired and asked if she must submit a new application, upon which she was referred to an e-mail of 28 July 2021 from the Applicant to the Respondent as to why the end date of 30 September 2020 appeared on her payslip of August 2020 for her rental savings. She stated that she could not respond to another Directorate’s correspondence since their Directorate is Human Resources. She was referred to the Applicant’s e-mails to Ms Lerecia Pillay dated 26 October 2022, and e-mail correspondence from Ms Chantel Siyaya and Ms Daneil Abrahams of 25 October 2022, and confirmed that these Officials were employed in her Directorate. However, this was in 2022 and she could confirm that the first e-mail received from the Applicant by Human Resources was in 2022 and continued to today, stating again that the Respondent must be informed of any changes and that a housing rental subsidy is not a given and that it will only be received if application is made on the prescribed forms.

56. Ms Tataw testified as follows under re-examination: The Applicant’s first application was in compliance with the housing allowance policy, which is the reason why she received the rental subsidy. Although the incorrect application form was completed at the time it was approved due to Covid and the hard lockdown. The second application was only received in 2022. The policy is clear that it must be within that period to still qualify. The rental agreements had expired for the other two applications which were not submitted in time and is the reason why they could not give her the rental allowance for the two periods in 2020. It was not only about fraud, but they would have received a qualified audit for not interpreting and applying their collective agreement correctly if the Auditor General’s staff had read the policies and her Official had granted the rental allowances for the applications for 2020 which were only received in 2022. It is the responsibility of the Applicant to inform the Respondent of any changes to her lease agreements and to submit via the prescribed forms that the lease agreement has expired and to provide the new lease agreement, as payment can only be implemented with a valid lease agreement. Her interpretation was that when a person signs a document that is a declaration and undertaking it means the person understands what is being signed for.

CLOSING ARGUMENT

57. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here, but have been summarised under Analysis of Evidence and Argument and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

58. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the Respondent, the Western Cape Education Department, had committed an unfair labour practice relating to benefits in terms of section 186(2)(a) of the LRA by not paying the Applicant a rental housing allowance subsidy in terms of the provisions of the Government Employees Housing Scheme (GEHS) for the period 1 October 2020 to 31 October 2022, and if unfairness is found, that the subsidy quantified in the amount of of R35848.41 be paid into the Individual Linked Savings Facility (ILSF) for the Applicant. It was confirmed that the onus of proof is on the Applicant in this matter.

59. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to 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;

60. The policy documents relevant to this matter and which were referred to by the parties are the following: Determination and Directive on Housing Allowance for Employees in the Public Service dated September 2018 made by the Minister for the Public Service and Administration (the DPSA Directive), Chapter 1 General Matters and Chapter 2 Housing Allowance Rules and Regulations (the Rules and Regulations), Chapter 3 Housing Allowance: GEHS: Individual-Linked Savings Facility (GEHS: ILSF), Annexure I: Housing Allowance Application Form for Tenants (the Tenant Application), Annexure K: Validation Sheet for Housing Allowance for Tenants (the Tenant Validation Sheet), Public Service Co-ordinating Bargaining Council (PSCBC) Resolution 7 of 2015 Framework Agreement for the Establishment of a Government Employees Housing Scheme (GEHS) dated 27 May 2015 (the GEHS Agreement), Circular 0018/2019 issued by the Directorate: Service Benefits of the Western Cape Government Education titled Withdrawal of Accumulated Savings from the GEHS Individual-Linked Savings Facility (ILFS) for Employees who Rent Homes (i e Tenants) issued on 8 April 2019 by the Head: Education, and Circular 0046/2021 titled Enrolment with the Government Employees Housing Scheme (GEHS): Importance, process and consequences of not enrolling issued on 29 July 2021 by the Head of Education, which included the GEHS:ILSF Employee Withdrawal Application Form.

61. The specific paragraphs and clauses referred to by the parties with respect to these documents are the following:

Determination and Directive on Housing Allowance for Employees in the Public Service (the DPSA Directive):

Chapter 1 General Matters
6. TRANSITIONAL ARRANGEMENTS
6.1 The enrolment of employees with the GEHS commenced on 1 January 2016. Employees must be enrolled with the GEHS in order to access the services and/or products of the GEHS. No withdrawal from the accumulated savings will be possible without the confirmation of enrolment letter.

7. IMPLEMENTATION PROCEDURES
7.1 Heads of Departments in National and Provincial Governments:
7.1.1 Shall receive and process employees’ applications to access the Housing Allowance and where applicable to apply for withdrawal of funds from the individual-linked savings facility.
7.1.2 Shall assist employees to enrol with the GEHS through the designated mechanism and procedures as availed by the GEHS Administration.

Chapter 2 Housing Allowance Rules and Regulations (the Rules and Regulations):
1. PURPOSE
1.1 The housing allowance is intended to assist employees with the recurring (monthly) costs of their accommodation. The Housing Allowance is provided to assist employees to gain access to owned and rented accommodation.

2. REQUIREMENTS FOR ACCESSING THE HOUSING ALLOWANCE
2.1 Eligibility for Employees
2.1.1 An employee appointed on a full time and part time basis, i e permanent or on a fixed-term contract of six (6) months and longer and who receives his or her salary plus benefits, may receive a Housing Allowance if he or she meets the requirements regulating the payment of the said allowance.
2.3 HOUSING TENURE
2.3.1 An employee can either own (hereafter referred to as a Home-owners) or rent (hereafter referred to as a tenant) a house to qualify for the Housing Allowance, provided that he or she meets all of the other qualifying requirements set out in this chapter.
2.3.3 Tenant
2.3.3.1 An employee applying for the Housing Allowance, as a tenant, must have a valid rental agreement in his or her name alone or together with his or her spouse, (an)other co-tenant(s), friend, sibling or parent for the house he or she is occupying.
2.3.3.2 Rental agreements related to the following circumstances are recognised for this purpose:
2.3.3.2.1 Occupational rent as part of a purchase of a house.
2.3.3.2.2 Renting from a private landlord.
2.3.3.2.3 Renting from a municipality.
2.6 Documentary Proof
2.6.2 An employee who wishes to access the Housing Allowance, must submit the prescribed documentary proof with his or her application for a Housing Allowance. Failure to do so or submitting incomplete/invalid documentation may result in the delay/rejection of the application.
2.6.5 Required documentary proof of tenancy:
2.6.5.1 Written lease or rental agreement (Annexure E)

5. TENANTS: MEASURES, PROCEDURES AND VALIDATION
5.3 An employee who rents a house will qualify for the Housing Allowance if he or she holds a rental agreement on the house he or she and/or his or her immediate family is/are occupying.
5.4 Only written rental agreements will be accepted for purposes of the Housing Allowance. Rental agreements must be renewed every two (2) years.
5.5 An employee with a written rental agreement must apply for the Housing Allowance for Tenants on the prescribed application form (Annexure I) together with the Nomination of Beneficiary form (Annexure M).
5.6 The application must be accompanied by his or her signed application, including the correct documentary proof indicated on the mentioned application form.

7. RESPONSIBILITIES OF EMPLOYEES
7.1 An employee must complete and submit the Housing Allowance Application Form for House-Owner (Annexure H) or for Tenant (Annexure I) together with the prescribed documentary proof in order to qualify for the Housing Allowance.
7.2 An employee is obliged to notify his or her department in writing of any changes that effect his or her eligibility for the Housing Allowance.

8. EFFECTIVE DATES FOR THE PAYMENT AND TERMINATION OF THE HOUSING ALLOWANCE
8.1 An employee shall start to receive his or her Housing Allowance on the employee’s pay date in the month her or she submits his or her signed application, including the correct documentary proof required.
8.2 The employee’s Housing Allowance will stop on the employee’s pay date in the month that he or she no longer meets the requirements for the receipt of the Housing Allowance.

Housing Allowance Application Form for Tenants (the Tenant Application, based on the application version signed by the Applicant on 27 May 2020):
INSTRUCTIONS
1 Employees who are/became tenants on or after 1 January 2005 should complete this application form.

2 Complete and tick the boxes that apply to you.

3 Please see list of documents in Section B, which must be attached to your application. If necessary please refer to the Employee Guide on the Housing Allowance for physical examples.

4 Ensure that you have completed and signed the form and attached all the documents required since lacking information may delay the payment of your application.

5 If you experience difficulty to complete this application form, please do not hesitate to contact your personnel office for assistance.
SECTION B: RENTAL STATUS
R2 I am a tenant because - I rent a house from a private landlord/municipality
Proof to be attached to this application form – Rental Agreement

SECTION E: CONFIRMATION, ACKNOWLEDGEMENT, UNDERTAKING AND DECLARATION
I the undersigned-
(a) Confirm that the information in this application form is accurate;
(b) Acknowledge that I could be disqualified from the Home Allowance Scheme should the information provided be false and/or inaccurate in which event the Employer may recover any monies over paid and institute disciplinary action and/or lay criminal charges (depending on the seriousness of the situation);
(c) Undertake to inform the Employer should there be any changes in my situation as a home owner and occupancy of my home; and
(d) Declare that the home is occupied as indicated in the form.

Validation Sheet for Housing Allowance for Tenants (theTenant Validation Sheet):
Noted: (This form should be attached to the employee’s application form when it is submitted to the designated official who will consider the application)
Stage 1: Verification of documents and content by designated official to consider applications.
Document – Rental Agreement
The document verifies – Agreement to lease
Significant features present on document – Name of tenant
Signature of tenant
Erf/section no (optional)
Name of landlord
Signature of landlord
Stage 2: Comparison and cross checking of information across documents
Document – Rental Agreement
Information present on document – Name of tenant
Name of township

PSCBC Resolution 7 of 2015 Framework Agreement for the Establishment of a Government Employees Housing Scheme (GEHS) (the GEHS Agreement):

4.1 The Government Employees Housing Scheme (GEHS)
4.1.1 The GEHS is the new employee housing assistance service.
4.1.2 The GEHS shall provide the following services:
4.1.2.1 Enrol, Counsel, Advise, and Educate:
(i) Educate employees on the benefits and advantages of home ownership;
(ii) Advise employees on available housing options; and
(iii) Support and facilitate financial rehabilitation of affected employees.
4.1.2.2 Administer the application of the housing allowance;
4.1.2.3 Facilitate and support access to housing finances, including housing subsidies and other housing programmes; and
4.1.2.4 Facilitate availability of housing stock both for rental and to own.
4.1.3 The employer is responsible to operate, administer and manage the GEHS with due consideration of labour as a key partner to be represented in the governance thereof.
4.1.4 All employees who wish to use services offered through the GEHS shall be required to enrol with the GEHS.

62. The Applicant had additionally provided a detailed summary (titled Educator Grievance Form) of the communications and interactions she had with various Officials of the GEHS and the Respondent relating to her rental housing allowance subsidy, commencing from 2 June 2020 until 30 May 2023, which summary had accompanied her dispute referral to the ELRC.

63. The Applicant party’s version and arguments in closing are summarised as follows: It was requested that the Applicant’s grievance summary be specifically considered, which reflected that the Applicant had been communicating with the Respondent since 2020 but did not receive any assistance regarding her housing subsidy/allowance. The testimony of the Applicant and of the Respondent’s witnesses are highlighted as follows: She, the Applicant, needs to be aware of the WCED (the Respondent’s) policies, which is why she requested clarity from the Respondent, with the Respondent not assisting her with her queries. Her understanding of Section E of the Tenant Application Form was that she needed to inform the Respondent should there be any changes in her address or status, of which in her case there was none, with no time frame specified in the application form.

64. It was also her understanding of clause 5.4 of the Directive which reads that rental agreements must be renewed every two years, that she only needed to submit a new lease agreement after two years. Although all three of the Respondent’s witnesses provided a detailed explanation of the process and what was expected of the Applicant, this was not explained to the Applicant the numerous times she enquired from the Respondent, with the Directive stating that Heads of Departments in Provincial Governments (being the Respondent in this case) shall assist employees to enrol with the GEHS. It was clear that no assistance was provided to the Applicant by the Respondent after her registration/enrolment. The Directive/Determination was also silent on the fact that a lease must be renewed whenever it expires and only stated that the tenant must have a valid written agreement, which according to the Applicant was submitted with her application form.

65. The Applicant as a Post Level 1 Educator specialises in teaching and learning and is not a HR practitioner or an expert in the field of HR, whereby it would be unfair to assume that she knew how to read the documents in conjunction with one another and interpret them in the same way as the Respondent’s Officials, or should have known that the lease agreement is a legal document. It could also not be assumed that the Applicant should have known, when the Directive was silent on this, that a new rental agreement must be submitted every time a lease agreement expires. It should be noted that the Applicant only became aware of the process and reasons for the submission of a new lease agreement during the arbitration proceedings. If the Applicant had been aware of this requirement she would have submitted the new lease agreement(s) in time.

66. It would be no fault of the Applicant if the Auditor-General were to hold the Respondent accountable should the applications have been captured incorrectly and beyond the legal framework, whereby she should not be prejudiced by not receiving the rental allowance that she is entitled to receive. July 2021 was the first time that any start or end date reflected on any screenshot or payslip was sent to the Applicant, whereupon the Applicant had immediately responded with the question what the end date of 20 September meant, to which she never received a response. If it had been explained to the Applicant at that stage, she might have been able to understand the Respondent’s decisions.

67. They concluded by requesting the Panelist to come to a finding that the Applicant was unfairly treated in that she applied for the benefit of a rental allowance and followed the correct procedure in terms of her understanding, hence is eligible to receive the rental allowance. Although the onus is on an employee to submit the relevant documentation to the Respondent, it is the employer’s responsibility to respond to the numerous e-mails that she sent in which she questioned why she was not receiving the rental allowance, and to inform her that she should furnish the Respondent with a new lease agreement.

68. The Respondent’s version and arguments in closing are summarised as follows: They confirmed the issues that were common cause and in dispute, adding that it was common cause that the Respondent had paid the rental savings from June (actual July) 2020 until September 2020 to the Applicant. They submitted that the onus of proof rested with the Applicant to prove, on the balance of probabilities - that she applied timeously; that the lease agreement was attached to the application; that the Respondent failed to assist with the application process; that the applications were in line with the requirements of the DPSA Housing Allowance Provision policy; and that the Respondent committed an unfair labour practice.

69. Reference was made to the DPSA Housing Allowance Policy provisions, of which the relevant extracts as referred to by the parties have already been cited above and are not repeated here. Reference was also made to the testimony of the Applicant, of which the detail is also not repeated here and is on record.

70. The Respondent was of the view that no unfair labour practice was committed as alleged by the Applicant, but that there was however an omission from the Applicant’s side to re-apply for the periods in dispute, for the following reasons: It was common cause that the Applicant’s rental allowance application for the period 1 June 2020 to 30 September 2020 was allocated from 28 July 2020, being the month in which she submitted her signed application, including the correct documentary proof required. The Respondent had allocated the Applicant her Housing Allowance based on her application having complied with the requirements for a tenant as outlined in the DPSA Directive on Housing Allowance, as already cited. According to that lease agreement, the lease terminated on 30 September 2020, with the Directive/Determination expressly stating that the rental allowance can ony be implemented until the end date reflected on the lease agreement, or alternatively after two years, at which point the Applicant must re-apply.

71. The Applicant had the onus to prove the allegations made by her on a balance of probabilities, these being the following: That the Respondent ignored her e-mails, could not respond to her e-mails, and that the responses she received were from employees that she was not sending e-mail enquiries to. Their response to this allegation was that it should be noted that these enquiries were made during the hard Covid lockdown when employees were working on a rotational basis with only skeleton staff at the office, further that the Applicant had testified under cross-examination that her queries were responded to, that she was informed about the savings process and had received numerous e-mails from the Respondent informing that everything was in order, with her evidence regarding the non-responsiveness of the Respondent being insufficient and contradictory. It was not disputed by the Applicant that she had not applied timeously for the Housing Allowance for the period October 2020 to October 2022. The Applicant was unable to indicate how the Respondent failed to assist her and could not explain how she managed to comply with the requirements on her first application without being assisted by the Respondent and could not explain why she did not notify the Respondent of her change in situation. She furthermore agreed that by signing her first application she had read and understood what was expected of her as an applicant and could not dispute the fact that signing an application form was legally binding. They pointed out that the Applicant had fully complied with this first application, on which basis the rental allowance was awarded to her for the period July 2020 to September 2020, which meant that she had also fully understood the requirements of the rental housing allowance process and could not now argue that she did not understand the process after non-compliance with the requirements for the later periods.

72. The issues in dispute that could be considered to fall within the purview of common cause issues were referred to, with the detail not repeated here, save to point out that the Applicant had admitted that the Respondent was not compelled to pay her the rental allowance for the period April and May 2022 because she did not supply a lease agreement for that period, and that she was inconsistent with the relief sought that she be paid the savings for the period from 1 October 2020 to 31 October 2022, with a number of discrepancies in her version. The Respondent’s witness Ms Lerecia Pillay had confirmed that the Directorate (Service Benefits) had on 30 October 2022 received the lease agreements (without the rental allowance applications) for the property rented by the Applicant for the periods 1 October 2020 until 31 March 2021, 1 April 2021 until 31 March 2022 and 1 June 2022 until 31 May 2023 (which it was noted was not supplied in the documents). Even though the lease agreement for the period from 1 June 2022 until 31 May 2023 was not accompanied by a rental allowance application, the rental allowance was awarded from 11 October 2022 until 31 May 2023, with no further lease agreement from 1 June 2023 onwards received by the Respondent.

73. The evidence of the Respondent’s three witnesses was referred to, with the detail not repeated here, with the submission that their testimonies were concise and credible, save to point out the following: They had all three confirmed that the awarding of the rental allowance is not automatic and is dependent on the Official or employee meeting all the prescribed requirements. They all three confirmed further that the Applicant was disqualified from eligibility for the rental allowance subsidy for the 2020/2022 periods as a result of her not re-applying for the rental housing allowance. They also testified that the Respondent could not capture the Applicant’s late applications on Persal since the system would reject it as an over-payment, with the system programmed in this fashion to avoid or curb non-compliance.

74. The Respondent was guided by the policies and legislative framework. The Applicant had not complied with the requirements contained in these prescripts and hence did not qualify for the rental housing allowance for the period 1 October 2020 to 31 October 2022. The Respondent could not backpay the Applicant as it would be disregarding its policies and the policy of the DPSA, and would be committing fraud in that regard. It would also set a wrong precedent to its administration on the basis that other employees would not take the responsibility of notifying the Respondent of any changes in their situation.

75. The Panelist was in conclusion requested to rule in the favour of the Respondent and to declare that the Applicant had failed to discharge the onus to prove that the Respondent had interpreted and/or applied the DPSA Directive and Determination on Housing Allowance for Employees in the Public Service incorrectly or had committed an unfair labour practice in not awarding the Applicant a housing rental allowance for the period 1 October 2020 to 31 October 2022, with the application to be dismissed.


FINDING

76. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case.

77. Reference is made to the issues identified as being in dispute relating to this matter, surrounding which the parties presented documentary and oral evidence, which are repeated here again for ease of reference:

• The period(s) for which the Applicant did receive the rental housing allowance subsidy after she made application on 2 June 2020.

• Whether the Applicant was entitled to payment of the rental housing allowance subsidy for the disputed period.

• Whether the Applicant had followed up on the non-payment of the subsidy and had not received a response from the Respondent until 26 October 2022 as to the reason for the non-payment for the disputed period.

• If the Applicant was entitled to this payment for the disputed period, what the the reason was that the payment was declined by the Respondent.

• Whether the Respondent had committed an unfair labour practice by not paying the Applicant the rental housing allowance subsidy for the period 1 October 2020 to 31 October 2022.

78. With respect to the period(s) for which the Applicant did receive a rental housing allowance subsidy (the housing allowance savings), it was confirmed in the evidence that the Applicant did receive housing allowance savings for the period 1 July 2020 to 30 September 2020 based on the Tenant Application and supporting documents that she submitted on 2 June 2020 for the lease agreement (the rental agreement) period of 25 March 2020 to 30 September 2020, and then for the period of 11 October 2022 until 31 May 2023 based on the rental agreement for the period 1 June 2022 until 31 May 2023 that the Applicant e-mailed to the Respondent on 30 October 2022.
79. It was furthermore established that the Applicant’s housing allowance savings were not approved for the periods 1 October 2020 until 31 March 2021 and 1 April 2021 until 31 March 2022, which periods were based on rental agreements also submitted by the Applicant to the Respondent on 30 October 2022. It was also confirmed that the Applicant did not supply a rental agreement for the period from April to May 2022 and in her evidence had stated that she did expect to be paid the housing allowance savings for that period.

80. It was not disputed that the first application submitted on 2 June 2020 was in full compliance with the Determination and Directive on Housing Allowance for Employees in the Public Service (the DPSA Directive) and that the second and third applications submitted on 30 October 2022 were non-compliant due to being tendered late, with the DPSA Directive Chapter 2 Housing Allowance Rules and Regulations (the Rules and Regulations) specifically stating that an allowance will only be granted in the month that the signed Tenant Application and required documentary proof is received, being the rental agreement and occupancy affidavit. It was not clear from the documents and evidence whether signed Tenant Applications had also accompanied the lease agreements that the Applicant submitted for the disputed period on 30 October 2022, since only the signed Tenant Application for the first rental agreement/period was contained in the admitted documents. The Applicant had also stated in the arbitration that she believed she was not entitled to housing allowance savings for May and April 2022 since she did not have a rental agreement on the rented property for that period, whereby she had conceded that a rental agreement to cover that period was required in order to receive the housing allowance savings for the period.

81. It emerged that the reason that the housing allowances savings were not paid to the Applicant for the disputed period, being 1 October 2020 to 31 October 2022, was according to the Respondent because the Applicant had not informed the Respondent of changes in her tenant status, in particular that her first rental agreement on which the initial housing allowances savings were granted, had expired, and if the Respondent had been informed of the expiry of the rental agreement and that a new rental agreement had been concluded between her and the landlord, that the Applicant would have been requested to submit a new Tenant Application accompanied by the required documentation such as the new rental agreement.

82. The parties’ interpretation of the undertaking to inform the Employer should there be any changes in my situation as a home owner and occupancy of my home in Section E of the Tenant Application differed. The Applicant’s interpretation was that this would only relate to changes in her personal status and a change in the address of the rented property, whereas the Respondent’s interpretation was that this would relate to all changes affecting the rental situation, of which a written rental agreement is an intrinsic element as being the required proof of tenancy. The Rules and Regulations augments this at clause 7.2 in stating that an employee is obliged to notify his or her department in writing of any changes that effect his or her eligibility for the Housing Allowance. The rental agreement would affect an employee’s eligibility for the housing allowance, since this is a requirement for the benefit to be granted, hence the logical and reasonable inference is that a change in the rental agreement would be a change that an employee would be required to inform the employer of.

83. In such circumstances it is supported that an employee would be obliged to inform the Respondent of the expiry of the rental agreement and, if he or she was not conversant with all the prescripts governing the Public Service housing allowances, to reasonably expect him or her to enquire from the employer or the GEHS what he or she is required to do upon expiry of the rental agreement. It was not disputed that the Applicant had made numerous enquiries about the status of her housing allowance application(s) and savings, but from a perusal of the correspondence in the admitted documents none could be found specifically relating to what to do upon the expiry of her first rental agreement on which the initial application was based and awarded.

84. It was not disputed that the prescripts referred to relating to Public Service housing allowances are silent on the fact that an employee who is in receipt of housing allowance savings must re-apply and submit a new Tenant Application with a rental agreement (and presumably also a new occupancy affidavit) when the previous rental agreement expires. In this regard clause 5.4 of the Rules and Regulations which states inter alia that rental agreements must be renewed every two years, can be confusing and lend itself to the interpretation ascribed to it by the Applicant that her successive rental agreements had not yet exceeded two years, whereas the Respondent’s interpretation was that this provision applied to indefinite rental agreements which did not contain an end date or rental agreements which extended beyond two years. The Applicant had further contended that nobody had told her until 26 October 2022 in the e-mail correspondence from Ms Pillay that a new Tenant Application was required every time a rental agreement expired and a new one was concluded. The Applicant had also submitted that there was no reference to an end or expiry date of the rental agreement in the Tenant Application, which it was noted was also not referred to in the Validation Sheet for Housing Allowance for Tenants (theTenant Validation Sheet).

84. It is further noted that Annexure E: Example of Standard Lease Agreement provided in the documents as referred to in 2.6.5.1 of the Rules and Regulations states as follows at clause 2:
2.1 This lease shall be a monthly lease commencing on the …….. day of ………….200… (“the commencement date”) and terminable by either party giving to the other one calendar months written notice to that effect, which written notice shall not, however, be given prior to ……………….. 200…
2.2.1 This lease shall endure for a period of ………. months “the INITIAL PERIOD”) commencing on the …..day of ………………. 200… and shall continue thereafter on a month to month basis.
This example lease (rental) agreement does not define an end date, aside from the initial period. However, many private lease agreements, as preferred in practice by property owners/landlords, do contain lease/rental end and start dates, as in the examples provided for the Applicant.

85. As an observation, it would be helpful if the wording in clause 5.4 of the Rules and Regulations be amended to clarify, in unambiguous terms, that a new Tenant Application and rental agreement is required every time a rental agreement expires and is renewed, and that it does not only relate to the renewal of an indefinite rental agreement after two years or limit rental agreements to a period of two years only, to prevent problematic assumptions and disputes of this nature arising in the future. In the same vein it would also be helpful if the undertaking in Section E at subsection (c) of the Tenant Application could be amplified with specific reference to that a change in the rental agreement, its period, or rental conditions, is a situation that the Respondent should be informed about.

86. It was placed as an issue in dispute that the Applicant had followed up on the non-payment of the housing allowance savings and had not received a response from the Respondent until 26 October 2022 as to the reason for the non-payment for the disputed period. The Applicant had alleged that numerous enquiries had been made to the Respondent and the GEHS about the status of her housing allowance benefit, with a detailed record of these communications and interactions contained in her grievance report, accompanied by confirmatory e-mail correspondence. Without going into the detail of the summary of interactions and the e-mail threads provided, the following is highlighted based on the Applicant’s version of events:

87. Her communications commenced on 2 June 2020 when she applied online for the housing allowance savings with GEHS. Her enquiries until 5 August 2020 directed to the GEHS and the Respondent’s Walk In Centre related to the first Tenant Application and rental agreement, when it was confirmed as having been awarded. Subsequent to that she had enquired about how the housing allowance savings for the GEHS Individual-Linked Savings Facility (ILFS) are reflected, which she was informed would appear on her payslip. Commencing from 23 July 2021 she had requested a summary of her accumulated savings from GEHS since it was not reflected on her payslip. Based on the information provided, she had enquired on 28 July 2021 why an end date of 30 September 2020 had appeared with the savings amount, to which no response was received from the GEHS Officials to whom this enquiry had been directed. On 23 October 2022 she e-mailed GEHS again requesting an ILFS account statement as her subsidy was still not reflecting on her payslip, with their response for her to send more information. On 24 October 2022 GEHS advised her that they did not send out ILFS account statements, and that if the savings did not appear on her payslip it meant that she was not “saving”. She had on the same date again requested why the savings were not reflecting, which e-mail she sent to GEHS and the Respondent’s HR Department, and was the first time that she appeared to correspond directly with the Respondent’s Officials on this issue. Further correspondence ensued, with Ms Lerecia Pillay of the Respondent’s HR Department replying as follows to the Applicant on 26 October 2022 in response to her enquiry of the same date, which the Applicant had contended was the first time she received this information:
Good morning Ms Niemand
Your lease agreement was only until September 2020, in order for you to qualify for continuous rental you must sent (sic) an updated lease agreement after your original lease agreement expired. Unfortunately we will not give back date on your subsidy, you need to apply for rental, and allowance will only be instated once we receive your documents, and please send your documents to Mr Sobotker which is copied in this email as he receives the incoming, as myself and Daniel will be on study leave.
The Applicant’s response on the same date of 26 October 2022 to Ms Pillay was as follows:
Thank you for your feedback.
May I ask why this was never communicated to me, especially since I asked in an email what the 30 September end date means? No-one responded to that email. It was sent to Busiswe Matanga. I will forward all lease agreements from 30 September 2020 onwards. Since I was not informed of this, I expect backpay will be in order.

88. The Applicant e-mailed renewed rental agreements for the period from 1 October 2020 until 31 May 2023 to the Respondent on 30 October 2022, which she recorded were not responded to, despite follow up e-mails from 2 November 2022 to 21 November 2022, whereafter she approached her Union on 20 February 2023 for assistance. Further correspondence and meetings followed from February 2023 to 30 May 2023, of which all the detail is not replicated here, save to note that the Applicant had submitted a grievance to the Respondent dated 12 March 2023 relating to the the non-payment of her housing benefit, which was responded to by Ms Lerecia Pillay of HR on 30 March 2023 by e-mail, in which reference was made to clause 8.2 of the the Rules and Regulations which stated that the allowance will stop on the employee’s pay date in the month that he or she no longer meets the requirement for the receipt of the allowance, with the rental end date being 30 September 2020. She had on the same day requested that she be furnished with the above clause 8.2 as well as the GEHS Rules and Regulations since she had never received these, to which was not responded to, and with further follow ups ensuing.

89. From the foregoing and the documentary evidence which was submitted in support of the Applicant’s allegations in this regard, it is not disputed that delays were experienced in responses to the communications between herself and the relevant Officials of the GEHS and the Respondent through its Walk In Centre. It is noted that the responsible HR Officials of the Respondent were only directly engaged with from 24 October 2022 onwards and that the Applicant’s previous enquiries had mainly been directed to GEHS and the Respondent’s Walk In Centre. From the correspondence it is confirmed that the Applicant was alerted for the first time on 28 July 2021 that there was a problem with her housing allowance savings when details of her savings provided by the Respondent’s Walk-In Centre Agent reflected an end date of 30 September 2020. She testified that she had not received a response to her enquiry to GEHS about the end date, but did not pursue this again until 23 October 2022 when she enquired from the GEHS why the subsidy was not reflecting on her payslip, whereafter she enquired again about this from the GEHS on 24 October 2022, with their Call Centre Agent responding that the GEHS does not provide the ILSF statement and that she should request this from her HR, also informing her that she is not saving if the savings do not reflect on her payslip. On 26 October 2022 Ms Lerecia Pillay of the HR Deparment sent her the e-mail, as already cited above, and which was confirmed by Ms Pillay in her testimony as being the first time that the HR Department became directly involved, and when the Applicant was provided with the reason for the non-payment of the housing allowance savings for the disputed period.

90. The Applicant’s frustration with the lack of, or slow responses, received from in particular the GEHS, prior to the Respondent’s HR Officials becoming involved around 24 October 2022, can be appreciated. However, it must be noted, as pointed out by the Respondent’s witnesses, and conceded to by the Applicant, that most of these communications transpired during the Covid lockdown period from March 2020 to April 2022 when service accessibility and delivery was negatively impacted. The Applicant’s ILFS housing allowance savings record was confirmed as the source that would reflect the period that the savings were awarded for and the amount of savings allocated to the ILFS, which information was to be reflected on her payslips, and as already pointed out, alerted her that there was a problem with her housing allowance savings status. It is however curious that once she was informed about the savings end date of 30 September 2020 during July 2021 that she did not make any further enquiries until 23 October 2022 when she followed up again about the housing allowance savings not reflecting on her payslip. The reason that the Applicant provided in her testimony for this pause in her enquiries was that she felt at the time that there was no reason for concern, until when they decided during October 2022 to look again at purchasing property, and because she was concerned about the state of her housing allowance savings due to lack of response. Had the Applicant however checked in sooner with the Respondent’s HR Service Benefits Department, the clarification that she sought and was provided three days later on 26 October 2022 could have been provided to her earlier, which meant that she could have submitted those applications and rental agreements earlier in compliance with the Rules and Regulations. Hence, although the GEHS and the Respondent can take some accountability for the delays in responding to the Applicant, she herself had also contributed to the delay in obtaining the required information by acting more timeously.

91. As already noted, the Applicant must have been aware of and had knowledge of the compliance requirements for the housing allowance benefit for rented properties since it was not disputed that the first application of 2 June 2020 was in full compliance with all the prescripts. It has also been pointed out that the Applicant never enquired in the correspondence handed in as to what would happen when the rental agreement period expired for the first application, which is what would reasonably have been expected of her. It was not disputed that the prescripts were silent as to what would be required of an employee when a rental agreement expires. However, since the rental agreement was an essential requirement for the housing allowance savings to be awarded, and it is common practice that lease or rental agreements between a tenant and a landlord typically have a start and end date, unless it is of an indefinite period, the logical inference would be that the housing allowance savings benefit should be re-applied for when a rental agreement expires, and that the benefit would only be awarded for the period stated in a rental agreement. Further, that in the circumstances the expiry of a rental agreement would be an event or situation change that an employee would be required to inform the employer of.

92. It was argued that the Applicant as a Post Level 1 Educator would not be privy to all the policies, rules and regulations in the Public Service governing service benefits such as Human Resources would be, and that the Respondent should have informed her of how the housing allowance benefit functioned. The evidence of the Respondent’s witnesses that this information was shared at school level and through workshops was not effectively disputed by the Applicant, with Ms Bernadette Tataw specifically testifying that this was the first time in her fifteen years of service with the Respondent in Service Benefits that an Educator, who normally holds a tertiary degree qualification, does not understand how the housing allowance works. The Applicant had also under cross-examination conceded that she had read and understood all the housing allowance directives prior to completing the application forms, with her main bone of contention being that the DPSA Directive and the Rules and Regulations did not specifically state that a new Tenant Application and rental agreement must be submitted every time a rental agreement expires and is renewed.

93. After considering the totality of the evidence presented during the arbitration proceedings, being both the documentary and the oral evidence of witnesses, as well as the credibility and reliability of the testimony of the parties’ witnesses, I find in the circumstances and for the reasons already provided, that the Applicant has been unable, on the balance of probabilities, to discharge the onus to prove that the Respondent had committed an unfair labour practice by not paying her the rental housing allowance subsidy in the form of the housing allowance savings in terms of the provisions of the Government Employees Housing Scheme (GEHS) for the period 1 October 2020 to 31 October 2022.

AWARD

94. The Respondent, the Western Cape Department of Education, had not committed an unfair labour practice relating to benefits by not paying the Applicant, Ms Samantha Heidi Niemand, the GEHS rental housing allowance subsidy for the period from 1 October 2020 to 31 October 2022.

95. In the circumstances the Applicant is not entitled to any relief.

96. No order as to costs is made.

Panelist: Alta Reynolds (Ms)