ELRC363-23/24EC

Panelist: Jonathan Gruss
Case No.: ELRC363-23/24EC
Date of Award: 29 November 2023


In the ARBITRATION between:

SAOU obo Dalene Bohnen
(Union / Applicant)


and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Ms van Wyk


Respondent’s representative: Mr Hector


DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.1.3 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held virtually via Zoom on Wednesday, 29 November 2023 and the proceedings were electronically recorded. The applicant, Dalene Bohnen through her Union, SAOU referred an unfair labour practice dispute relating to benefits to the ELRC. The applicant was represented by Ms van Wyk an official in the employ of SAOU. The respondent, Department of Education – Eastern Cape was represented by Mr Hector, a Labour Relations Officer.

ISSUE TO BE DECIDED
2. A dispute concerns the refusal and or failure of the respondent to pay the applicant her capped and audited leave credits on her retirement

BACKGROUND TO THE ISSUES

3. The following facts were agreed to between the parties as common cause.

3.1 The applicant retired on 31 March 2021 and as of date, she had not received her leave gratuity. She was entitled to receive her capped leave gratuity on her retirement.
3.2 When she retired, her annual basic salary was R395 121.

4. The Respondent does not dispute the applicant’s capped leave gratuity.

SURVEY OF EVIDENCE AND ARGUMENT

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand.

SURVEY OF EVIDENCE

6 The applicant testified under oath to the following effect. She commenced employment with the respondent as an educator on 1 April 1996. She taught at Hoerskool McLachlan in Joubertina until she went on retirement on 31 March 2021. At the time when retiring her capped leave was 33,71 days and this is corroborated by her salary advice dated 2021.03.19. As of date the respondent has refused and or failed to pay out her capped leave.
ANALYSIS OF EVIDENCE

7 The dispute was referred in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
“Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”

8 In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term 'benefit' to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer's discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.


9 Chapter H 4.5.3.2 read with H 4.5.4 of the Personnel Administrative Measures (PAM) (2022) provides that the payout in respect of such leave credits must be made in the event of retirement, including early retirement. The leave payout in respect of educators with capped leave and audited leave credits will be determined in the following manner:

“ {[(A-B) +(C-D)] x E + (F x G)}
260.714

Where –
A= represents the educators full annual or pro rata leave entitlement in respect of the previous leave cycle.
B = represents the leave taken in the previous leave cycle
C= represents the pro rata leave entitlement in the current leave cycle.
D= represents the leave taken in the current leave cycle
E= represents the educator’s remuneration (annual basic salary plus 37% and in the case of a member of the MMS, the all-inclusive package) at the last day of duty.
F= represents the capped leave credits
G=represents the educator’s remuneration (annual basic salary only) as at last day of duty”

10 I am satisfied that the respondent is indebted to the applicant for the payment of her capped leave credit of 33.71 days that equates to R51088,66, calculated as follows: (33.71 days capped leave x R395121 ÷260.714 [working days per annum]). The capped leave credit amount to a benefit as contemplated in terms of Section 186 (2)(a) of the LRA. The failure to pay the applicant this benefit amounts to the respondent perpetrating an unfair labour practice.

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

12. I must complement the respondent’s representative for his honesty and integrity in these proceedings that assisted in resolving the dispute between the parties.

13. I therefore make the following award.

AWARD
14. The Respondent, the Department of Education: Eastern Cape has committed an unfair labour practice relating to benefits as it relates to the failure to pay the applicant, Dalene Bohnen, on her retirement her capped leave. .

15. The respondent must pay the applicant an amount of R51 088.66 that equating to 33.71 days capped leave by no later than 29 December 2023.


Name: Jonathan Gruss
(ELRC) Arbitrator