ELRC281-24/25NW

ARBITRATION AWARD
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

Case No: ELRC 281-24/25NW

In the matter between

SAOU obo ELNA PRINSLOO Applicant

and

DEPARTMENT OF EDUCATION: NORTHWEST PROVINCE Respondent

ARBITRATOR: Monde Boyce

HEARD: 28 August 2024

CLOSING ARGUMENTS: 03 September 2024

DATE OF AWARD: 16 September 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This matter was set down for arbitration on 28 August 2024 and finalized on the same date with parties having to submit written closing arguments on 03 September 2024. Dr Johan Kruger, a trade union official from the trade union SAOU, represented the applicant while Mr Tatedi Matshaba, the Labour Relations Officer in the department, made an appearance on behalf of the respondent.

[2] While I had directed that parties file written closing arguments by no later than 03 September 2024, only the applicant filed the written closing arguments and the respondent, as at the date this award was made, had not filed its closing arguments. The written closing arguments were necessitated by the fact that there were no factual issues around whether the applicant, Miss Prinsloo, is owed the acting allowance that caused her to refer the dispute to the ELRC but rather the respondent’s failure to implement payment of her (Miss Prinsloo) acting allowance.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the respondent committed unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the “LRA”) by failing to pay the applicant an acting allowance, and I am also called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant is employed by the Northwest Education Department as a PL2 educator. In January 2024, she was appointed to act in the position of Deputy Principal and currently serves in this position. The dispute arose after the respondent failed to pay her the acting allowance. After attempts made through her trade union to get the respondent to pay her the acting allowance failed, the applicant decided to refer an unfair labour practice dispute. The dispute could not be resolved at conciliation, and the applicant referred the dispute for arbitration. She seeks payment of the acting allowance as a relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicants’ Submissions

[5] To the extent the submissions by the applicant are filed with the Council and now being a matter of record, I do not deem it necessary to repeat them but will focus only on the salient points relied upon in support of the claim of unfair labour practice by the applicant. I also do so to the extent that most issues were agreed to as a common cause in the pre-arb minutes and during the virtual arbitration hearing of 28 August 2024 with the only remaining issue being that of the date of payment of the acting allowance.

The Respondent’s Submissions

[6] Suffice to mention that the respondent’s representative, Mr Matshaba, conceded that the applicant was indeed owed the acting allowance with the only issue remaining to be resolved being that of the date that payment should be effected, the respondent, as already alluded to, did not file any written submissions.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[7] I hasten to mention that I held a view that this matter should not have served before the Council to the extent that the dispute could have been avoided by the respondent simply acting on its obligation to pay the applicant the acting allowance as it should. As already stated, there is no dispute around whether the applicant is owed the acting allowance. It was conceded by the respondent that it does owe the applicant the acting allowance. In her submissions, the applicant correctly referred me to the provisions of the ELRC Collective Agreement 8 of 2001 which sets out the minimum requirements that an educator should meet to be appointed to an acting position and how the allowance for such acting should be calculated. I do not deem it necessary to repeat such provisions as it was agreed by the parties that the applicant does meet the minimum requirements. There was also no dispute around whether the applicant’s acting appointment met the provisions of Section 20(1)(i) of the South African Schools Act 84 of 1996 as it was shown that the required recommendation by the schools governing body (SGB) was made. As such, the crux of the dispute centred around the delays in payment of the acting allowance.

[8] I should mention that it appeared that the delay in payment of the acting allowance was around the department’s own failure to finalise the necessary paperwork that would ensure that the acting allowance was made. Dr Kruger, for the applicant, bemoaned the unnecessary delays and the lack of action by the respondent despite numerous correspondence, conduct that caused the applicant not to hold any hope or trust that the respondent would effect the payment. I was referred to correspondence by the applicant to the respondent seeking to have payment of her acting allowance made. It appeared that little effort was made by the respondent to finalise payment. It was only during the arbitration process of 28 August 2024 that the respondent’s representative asked for adjournments and frantically phoned around seeking to get the necessary documentation made available to the Human Resources department that is charged with making such payments.

[9] Quite disheartening and puzzling is that the applicant started acting on 15 January 2024 and the appointment was signed by both the applicant and the circuit manager on 06 February 2024, a good five (05) months before the applicant decided to refer the current dispute. That was how much time the respondent had to sort out the necessary paperwork that would ensure that the acting allowance is paid from the date it was due. Having had this much time, it beggars belief that the respondent only realised that the necessary paperwork had not been sent to the Human Resources department only on the date of the arbitration of 28 August 2024. The respondent’s representative requested that the respondent be given at least three (03) more days to comply and to effect payment, a request that the applicant objected to, and which request I refused. The applicant is vindicated because, as at the date this award was made, the ELRC had not been advised that the respondent had sorted itself out and effected payment. It is thus reasonable to conclude that even if the respondent were to be afforded such an opportunity, the applicant would still be sitting with a similar problem where no payment of her acting allowance had been made.

[10] I should also mention that acting appointments are not sudden and are events that are usually planned for. As such, it is completely mindboggling that a simple task of preparing and finalising an acting appointment and payment thereof would take months before being finalised, a referral of a dispute and an arbitration award. The respondent did not point me to any hardships that it had in finalising the payment of the acting allowance. Even worse, the dispute was referred for conciliation which took place at least a month before the arbitration of 28 August 2024. No explanation was proffered by the respondent on why it could not do what it ought to do on 28 August 2024 well in advance or soon after the conciliation when it knew that it had no basis to defend the claim. I find the respondent to have committed unfair labour practice by failing to pay the applicant her acting allowance.

[11] The applicant has since calculated the amount she is owed and arrived at an amount of R50, 124.00 calculated at the monthly acting allowance of R6, 265.50 multiplied by the eight (08) months, which is from January 2024 to August 2024 that the applicant has been and is still acting in the position of deputy principal.

[12] In the premises, I make the following award:

AWARD

[13] The respondent’s failure to pay the applicant the acting allowance constitutes unfair labour practice as claimed by the applicant, and the applicant is thus entitled to the relief she seeks.

[14] The respondent is accordingly ordered to pay the applicant the acting allowance in the amount of R50, 124.00 (FIFTY THOUSAND ONE HUNDRED AND TWENTY-FOUR RAND).

[15] The respondent must pay the amount in paragraph [14] above by no later than 29 September 2024.

Monde Boyce
Panelist: ELRC