ELRC612-23/24EC

Panelist: Jonathan Gruss
Case No.: ELRC612-23/24EC
Date of Award: 15 February 2024

In the ARBITRATION between:

NAPTOSA obo Lumka Papu
(Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Adv Saayman - NAPTOSA

Respondent’s representative: Ms Nchukana – LR Officer

Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, claim for salary and bonus owed.

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held at the District Office in Makhanda on 15 February 2024 and the proceedings were electronically recorded. The applicant’s union, NAPTOSA referred an enforcement dispute on behalf of the applicant, Lumka Papu to the ELRC. The applicant was represented by Adv Saayman an official of NAPTOSA. The respondent, Department of Education: Eastern Cape was represented by Ms Nchukana, a Labour Relations Officer.

ISSUE TO BE DECIDED
2. This dispute concerns the alleged none-payment of the applicant’s salary for the month of January 2020 and the none-payment of a prorate bonus for January 2020. I am required to determine whether the respondent is indebted to the applicant for the payment of outstanding remuneration.

BACKGROUND TO THE ISSUES

3. The parties concluded a pre-arbitration minute and there were no disputes of facts, the respondent agrees that amounts due to the applicant as contained in her claim.

SURVEY OF EVIDENCE

4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

5. The applicant gave evidence under oath to the following effect. She confirms common cause facts as set out in the pre-arbitration minute and therefore incorporates same into her evidence. She commenced employment with the respondent on 1 July 2019 in a permanent capacity and currently occupies the position of post level I educator at Nathaniel Nyaluza Secondary School in Makhanda (Grahamstown), Eastern Cape with Persal number 56173695. She received no salary for the month of January 2020 and also no prorate bonus for the month of January 2020. At the time the applicant received a gross annual salary of R280 038.00, monthly salary of R23 336.50. The Pronto bonus for seven months from July 2019 to January 2020 amounts to R13612.94. She lodged grievances relating to the non-payment of their salary and her prorate bonus, the first on 20 January 2020 the last one was on 26 October 2023. She was informed by Mr Jili of the respondent’s finance department at the district office that the amounts were on the system and will be paid to her, but no payment has been made to date. The total amount due to the applicant is R36 949.46,

ANALYSIS OF EVIDENCE AND ARGUMENT

6. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 1 of 2023 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:

6.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
6.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.

7. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:

7.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
7.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;

8. Clause 69.8 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 8 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.

9. Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act; the Employment of Educators Act; the Personnel Administration Measures (PAM), or any regulation or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in respective Province where an educator is employed as a relates to conditions of service, a collective agreement and the contract of employment.

10. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee.
11. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.

12. The payment of any employee’s wages forms part of their conditions of service.

13. It was not in dispute that the applicant was not paid her salary in January 2020 although she tendered her services and taught learners.

14. Chapter E2.3.5 (Measures prescribed by legislation not administered by the Minister of Basic Education and Service Benefits which apply to all employees of the State) of the Personnel Administration Measures (PAM) (refers to and thereby incorporate the provisions of PSCBC Resolution 3 of 1999 and 7 of 2000 that deals with service bonuses into the terms and conditions of employment of educators.

15. According to PSCBC Resolution 3 of 1999, as relates to eligibility, an employee shall receive a service bonus if she or he has a permanent contract or a fixed term contract lasting at least three months, unless the contract specifies otherwise, and in the year ending on her or his bonus date, does not resign or undergo discharge due to misconduct. The bonus date for an eligible employee born between April and December shall fall in the month of her or his birthday. The bonus date for an eligible employee born between January and March shall fall in April. The employer shall pay an employee his or her service bonus on the day the employer normally pay salaries in the relevant month. For the calculating of service bonus, the employer shall take into account continued employment in a state department, state or state aided school, or a statue body established by Parliament. If an eligible employee has worked for you up to bonus date, she or he shall receive a month salary of deduction of the GEPF. If an eligible employee has worked for part of you up to the bonus date, she or he shall receive an equivalent part of her or his monthly salary after deduction of GEPF.

16. According to Clause 10 of PSCBC Resolution 7 of 2000 under the heading payment of birthday bonus, employees whose birthday fall between January and March of each year shall receive their 13th cheque on their birthday month and not in April of each year. The applicant’s birthday is on 16 January, this is confirmed by the applicant’s referral.

17. I must complement the respondent’s representative for her honesty and integrity in these proceedings, she assisted us all in resolving the dispute.

18. I therefore make the following award.

AWARD

19. The respondent, Department of Education: Eastern Cape is indebted to the applicant, Lumka Papu in the amount of R36949.46, the amount comprises of R23336.50 for her salary for January 2020 and R13612.96 for her service bonus that should have been paid in January 2020.

20. The respondent is ordered to pay the applicant an amount of R36 949.46 subject to statutory deduction by no later than 29 March 2024.

Name: Jonathan Gruss
(ELRC) Arbitrator