PSES 653-19/20 FS
PSES 653-19/20 FS
Award Date:
8 December 2020
Case Number: PSES 653-19/20 FS
Province: Free State
Applicant: SAOU obo Wandrag S
Respondent: Department of Education: Free State
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual hearing (Zoom)
Award Date: 8 December 2020
Arbitrator: Luyanda Dumisa
Arbitration Award
Case Number: PSES 653-19/20 FS
Commissioner: Luyanda Dumisa
Date of Award: 08 December 2020
In the ARBITRATION between
SAOU obo Wandrag S
(Union/Applicant)
And
Department of Education – Free State
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were set down for hearing on 30 November 2020 via virtual hearing on Zoom. The Applicant Susan Wandrag (Wandrag) was not present but was represented by Hester Human (Human) an Assistant Provincial Secretary (Free State) of the trade union, Suid-Afrikaanse Onderwys Unie (SAOU).
2. The Respondent, Department of Education- Free State was represented by Solomon Moloi (Moloi) a Labour Relations Officer.
3. Interpretation services were not required.
4. Bundles of documents were submitted by both parties and the parties used these documents to substantiate their claims.
5. The parties agreed to submit their closing arguments in writing by no later than the 01 December 2020 and upon receipt they were duly considered in making this award.
6. The arbitration was held under the auspices of the ELRC in terms of its Constitution. The proceedings were both digitally and manually recorded.
ISSUE TO BE DECIDED
7. I am required to determine whether or not the Respondent committed an Unfair Labour Practice in terms of section 186(2) (a) of the Labour Relations Act, no 65 of 1995 (as amended) (LRA) related to benefits, when the Respondent refused to adjust and backdate the increased housing allowance of the Applicant (as tenant) to the date on which the PSCBC Resolution 7 of 2015 came to effect, namely 01 July 2015. If yes, I must make a determination on the appropriate remedy.
BACKGROUND TO THE DISPUTE
8. The Respondent's mandate is to provide compulsory basic education to all learners in the Free State Province and the Applicant was appointed as an Educator on 01 January 1987 to date.
9. The parties had held pre-arbitration hearing with minutes in which the following were recorded as common cause facts:
10. The Applicant applied for a housing allowance as a Tenant before May 2015. She received R900 in this regard.
11. The PSCBC Resolution 7 of 2015 provides at 4.5.1 that the housing allowance for qualifying employees will be increased to R1200 per month and that it will be annually adjusted with the consumer price index (CPI) of the previous year into an individually linked savings facility.
12. The Respondent asked the Applicant to submit proof of enrolment with the GEHS on 05 July 2020 for housing allowance. The Respondent is willing to backdate the Applicant’s housing allowance from 01July 2020 being the date in which she complied with the submission of the proof of enrolment.
13. The Applicant in this matter challenges the Respondent's decision not to adjust and backdate her housing allowance from 01 July 2015. The Applicant submitted her proof on 05 July 2020 which is dated 17 February 2017. There is no requirement in the Resolution itself that provides for a condition to submit proof of enrolment with the Government Housing Scheme (GEHS) before receiving the additional R300 into an individual-linked savings facility.
14. From the above it clear that the parties dispute arises from the date on which the Applicant’s housing allowance should be adjusted and backdated.
15. The Applicant sought the following reliefs:
16. That the Respondent’s conduct amounted to an unfair labour practice and that the Respondent be ordered to adjust and backdate the Applicant’s housing allowance as a tenant with effect from 01 July 2015 to an individually linked savings facility in the amount of R26 696.24
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s case:
Human's arguement under oath is as follows:
17. The Applicant submitted proof of enrolment on 05 July 2020 dated 17 February 2017. Resolution 7 of 2015 does not require the Applicant to submit proof of enrolment with the GEHS or to complete a new housing allowance application form before it can be implemented.
18. The Applicant is not a homeowner despite the mistake on persal providing that she is a new homeowner. The Applicant would not lie about her status as a tenant and she does not stand to benefit because homeowner receive full housing allowance together with their salaries or they have the option of directing the allowance to an individually linked savings facility. Whereas, if the tenant resigns or is dismissed, the whole amount in the savings facility is forfeited. It is therefore preferential to apply for the subsidy as a homeowner and not a tenant.
19. The PSCBC Resolution 7 of 2015 created a judicial right and entitlement to a housing allowance and its adjustment from 01 July 2015 is a benefit to which the Applicant is entitled.
20. According to PAM E 2.3.2 and PSCBC Resolution 7 of 2015 no. 4.4.2, 4.5.1, 4.5.2, 4.5.3, 4.5.6.1, 4.5.6.5.2 and 4.5.6.5.2, employees who applied, qualified and received a housing allowance of R900 as a tenant prior to 01 July 2015, will with effect from 01 July 2015, continue to receive the R900 while the amount the allowance was increased with, namely R300, will be deposited into an individually-linked saving facility. The R300 will be increased annually with the CPI of the previous financial year.
21. The Determination and Directive on Housing Allowance for Employees in the Public Service, September 2018 at 2.2.2.2 provides that employees in service prior to 27 May 2015 who were recipients of the housing allowance as home owners but failed to complete the new housing allowance application for home owners shall continue to receive R900 housing allowance without any adjustment. This only applied to homeowners and not tenants and the latter clearly did not have to resubmit any application form or proof of enrolment with the GEHS.
22. Thus the Respondent faulted when it required the Applicant to submit a new application or proof of enrolment and thus committed an unfair labour practice also by refusing to adjust the Applicant’s housing allowance or insisting on backdating her allowance with effect from July 2020.
23. The Determination states that in order to access the funds in the individual- linked savings facility the employee must be registered with the GEHS. It does not specify when this must be registered or enrolled or that the date of enrolment has an effect on the date on which the Applicant will be backdated. It simply states that if you want to access the funds and services, you must be registered or enrolled with the GEHS.
24. The Respondent failed to provide proof of any communication sent to the Applicant that states that she had to be enrolled with the GEHS before a certain date otherwise she will forfeit being backdated from 01 July 2015.
25. There is no proof that such communication was sent to the trade unions and if indeed it was sent it would have contravened the provisions of the Determination. The trade unions have no responsibility to inform employees as not all employees belong to trade unions.
26. The Determination states that if the employee is not enrolled with the GEHS, the accumulated savings will be forfeited when the employee dies. It does not suggest that if not enrolled no funds will be directed towards the savings facility. Enrollment never had the intention of preventing the employer from backdating the employee, but to ensure access to the funds directed to the individual -linked savings facility.
27. The Applicant enrolled with the GEHS which means that she will be prejudiced when she retires or dies as the funds that should have been directed to the savings facility since July 2015 have not been directed to the savings facility as required by the policy.
Respondent's case
Moloi’s argument on behalf the Respondent under oath is as follows:
28. The Applicant in the Department’s record does not appear as a tenant. As she claims she was a tenant when she applied for a housing allowance and that she is still tenant.
29. The Applicant did not enroll with the GEHS as was stipulated on paragraph 4.4.3 of the Resolution, which states that that employees shall enroll with the GEHS with effect from 01 January 2016.
30. The Applicant only enrolled on 17 February 2017 and submitted her outstanding documents on 05 July 2020 after being asked by the Department’s official and which is the month the Department is willing and ready to pay but paragraph 4.5.6.1 of the Resolution states that “employees who are eligible to receive the housing allowance but do not own a house shall continue to receive R900 (Nine hundred rand) per month. The difference between the total housing allowance and R900 (Nine hundred rand) shall be diverted and accumulated into an individual-linked saving facility”.
31. According to the Respondent’s records the Applicant appears to be a homeowner.
32. The Applicant was aware of the outstanding documents as per her e-mail dated 05 July 2020 in which she made mention of the attachments of outstanding GEHS form, which gives a clear indication that there were documents which she was supposed to submit to the Department before that allowance could be implemented.
33. The Applicant failed to comply with the time frames as they are stipulated in the resolution and she also took her own time to enroll with the GEHS despite the time limits clearly being stipulated in the Resolution at paragraph 4.4.3.
34. In her e-mail referred to above, she mentioned that she made attachments of the GEHS forms after being asked by the Department’s official.
ANALYSIS OF EVIDENCE AND ARGUMENT
35. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings.
36. Section 185 provides that every employee has a right not to be subjected to unfair labour practice.
37. Section 186(2)(a) of the LRA describes an unfair labour practice as any act or omission that arises between an employer and an employee amongst other things involving unfair conduct by the employer relating to promotion, demotion, or training of an employee or relating to the provisions of benefits to an employee.
38. The Applicant in this matter challenged the Respondent's decision not to adjust and backdate her housing allowance from 01 July 2015. The Applicant submitted her proof on 05 July 2020 which is dated 17 February 2017. There is no requirement in the Resolution itself that provides for a condition to submit proof of enrolment with the Government Housing Scheme (GEHS) before receiving the additional R300.
39. The Applicant is not a homeowner despite the mistake on her persal providing that she is a new homeowner. The Applicant would not lie about her status as a tenant and she does not stand to benefit because homeowners’ receives full housing allowance together with their salaries or they have the option of directing the allowance to an individually linked savings facility. Whereas, if the tenant resigns or is dismissed, the whole amount in the savings facility is forfeited. It is therefore preferential to apply for the subsidy as a homeowner and not as a tenant.
40. The Respondent's contention is that the Applicant in the Department’s record does not appear as a tenant. As she claims she was a tenant when she applied for a housing allowance and that she is still a tenant. According to the Respondent’s records the Applicant appears to be a new homeowner.
41. The Applicant did not enroll with the GEHS as stipulated on paragraph 4.4.3 of the Resolution, which states that that employees shall enroll with the GEHS with effect from the 01 January 2016.
42. The Applicant only enrolled on 17 February 2017 and submitted her outstanding documents on 05 July 2020 after being asked by the Department’s official and which is the month the Department is willing and ready to pay but paragraph 4.5.6.1 of the Resolution states that employees who are eligible to receive the housing allowance but do not own a house shall continue to receive R900 (Nine hundred rand) per month. The difference between the total housing allowance and R900 (Nine hundred rand) shall be diverted and accumulated into an individual-linked savings facility.
43. The Applicant was aware of the outstanding documents as per her e-mail dated 05 July 2020 in which she made mention of the attachments of outstanding GEHS form, which gives a clear indication that there were documents which she was supposed to submit to the Department before that allowance could be implemented.
44. The Applicant failed to comply with the time frames as they are stipulated in the resolution and she also took her own time to enroll with GEHS despite being stipulated in the Resolution at paragraph 4.4.3.
45. In her e-mail referred to above, she mentioned that she made attachments of the GEHS forms after being asked by the Department’s official.
46. The most probable version is that of the Respondent that it did not commit an unfair labour practice when it did not increase the Applicant’s housing allowance with effect from 01 July 2015 for failing to comply with the provisions of the Resolution in terms of enrolling with GEHS and that she does not appear as a tenant in the Respondent’s records as indicated in her pay slip (persal), for the following reasons:
47. The Resolution 7 of 2015 provides for an Agreement under paragraph 4 and in essence it states in paragraph 4.1.4 that all employees who wish to use service offered through the GEHS shall be required to enroll with GEHS. Paragraph 4.4.3 of the Resolution under Transitional Arrangements provides that employees shall enroll with the GEHS with effect from 01 January 2016.
48. In light of these paragraphs, I find that the Resolution sufficiently provided for a requirement that had to be met by an employee before the resolution could be effectively implemented namely that employees who wish to use service offered through the GEHS shall be required to enroll with GEHS and that employees shall enroll with the GEHS with effect from 01 January 2016.
49. Therefore, the Applicant’s representative’s argument that there was no requirement in the Resolution requiring the Applicant to be enrolled with the GEHS before the benefit is adjusted and that it was only aimed at homeowners more than to tenants, is not true.
50. Paragraph 4.5.6.1 provides for the Individual-linked savings facility and it states that employees who are eligible to receive housing allowance but do not own a house shall continue to receive R900 per month. The difference between the total housing allowance and the R900 shall be diverted into and accumulated in an individual-linked savings facility.
51. The Applicant’s representative argued that it is a mistake that the Applicant’s pay slip (persal) shows that she is a homeowner and not a tenant. The Applicant would not lie about her status as a tenant and she does not stand to benefit because homeowners’ receive full housing allowances together with their salaries or they have the option of directing the allowance to an individually linked savings facility. Whereas, if the tenant resigns or is dismissed, the whole amount in the savings facility is forfeited. It is therefore preferential to apply for the subsidy as a homeowner and not a tenant.
52. The Respondent on the other hand contended that the Applicant only enrolled on 17 February 2017 and submitted her outstanding documents on 05 July 2020 after being asked by the department’s official and which is the month that the Department is willing and ready to pay, however, the Applicant in terms of the employment records appears to be a new homeowner.
53. The Applicant’s pay slip (persal) as her record of employment shows that she is a new homeowner and it means as a new homeowner she will not be entitled to the benefit that is made available for tenants. This is so because employees who are eligible to receive the housing allowance but do not own a home continue to receive R900. The difference between the total housing allowance and the R900 shall be diverted into an individual-linked savings facility. The Applicant’s employment document reflects her as a new homeowner. If it is a mistake, which I doubt, in my view it is a very costly mistake which for as long as it remains on the Applicant’s record of employment and bearing in mind the Respondent’s contention, it purports to be correct in the absence of any contradictory evidence from the Applicant party.
54. It is my considered view, that it is not enough for the Applicant to show me that she met the minimum provisions for the Resolution 7 of 2015 but it is important for the Applicant to show me that she met the inherent requirements as provided in paragraphs 4.1.4, 4.4.3 and 4.5.6.1 of the Resolution and in this regard she failed.
55. The Applicant party failed to show that she complied with the inherent provisions of the Resolution, namely the date she enrolled for GEHS, submission of the outstanding documents and she is not a tenant according to her pay slip (persal).
56. It also appears from the evidence that at the time she submitted outstanding documents on 05 July 2020 she was no longer a tenant based on the pay slip (persal ) for the period 30 June 2020.
57. Therefore, based on the above reasons, the Respondent’s conduct by no means amounts to an unfair labour practice.
58. I therefore find that the Respondent's conduct of refusing to adjust and backdate the housing allowance of the Applicant (as tenant) with effect from 01 July 2015 did not amount to unfair labour practice.
AWARD
59. The Applicant's dispute referral is hereby dismissed.
……………………………………………………….
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry: Education
Province: Free State
Applicant: SAOU obo Wandrag S
Respondent: Department of Education: Free State
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual hearing (Zoom)
Award Date: 8 December 2020
Arbitrator: Luyanda Dumisa
Arbitration Award
Case Number: PSES 653-19/20 FS
Commissioner: Luyanda Dumisa
Date of Award: 08 December 2020
In the ARBITRATION between
SAOU obo Wandrag S
(Union/Applicant)
And
Department of Education – Free State
(Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were set down for hearing on 30 November 2020 via virtual hearing on Zoom. The Applicant Susan Wandrag (Wandrag) was not present but was represented by Hester Human (Human) an Assistant Provincial Secretary (Free State) of the trade union, Suid-Afrikaanse Onderwys Unie (SAOU).
2. The Respondent, Department of Education- Free State was represented by Solomon Moloi (Moloi) a Labour Relations Officer.
3. Interpretation services were not required.
4. Bundles of documents were submitted by both parties and the parties used these documents to substantiate their claims.
5. The parties agreed to submit their closing arguments in writing by no later than the 01 December 2020 and upon receipt they were duly considered in making this award.
6. The arbitration was held under the auspices of the ELRC in terms of its Constitution. The proceedings were both digitally and manually recorded.
ISSUE TO BE DECIDED
7. I am required to determine whether or not the Respondent committed an Unfair Labour Practice in terms of section 186(2) (a) of the Labour Relations Act, no 65 of 1995 (as amended) (LRA) related to benefits, when the Respondent refused to adjust and backdate the increased housing allowance of the Applicant (as tenant) to the date on which the PSCBC Resolution 7 of 2015 came to effect, namely 01 July 2015. If yes, I must make a determination on the appropriate remedy.
BACKGROUND TO THE DISPUTE
8. The Respondent's mandate is to provide compulsory basic education to all learners in the Free State Province and the Applicant was appointed as an Educator on 01 January 1987 to date.
9. The parties had held pre-arbitration hearing with minutes in which the following were recorded as common cause facts:
10. The Applicant applied for a housing allowance as a Tenant before May 2015. She received R900 in this regard.
11. The PSCBC Resolution 7 of 2015 provides at 4.5.1 that the housing allowance for qualifying employees will be increased to R1200 per month and that it will be annually adjusted with the consumer price index (CPI) of the previous year into an individually linked savings facility.
12. The Respondent asked the Applicant to submit proof of enrolment with the GEHS on 05 July 2020 for housing allowance. The Respondent is willing to backdate the Applicant’s housing allowance from 01July 2020 being the date in which she complied with the submission of the proof of enrolment.
13. The Applicant in this matter challenges the Respondent's decision not to adjust and backdate her housing allowance from 01 July 2015. The Applicant submitted her proof on 05 July 2020 which is dated 17 February 2017. There is no requirement in the Resolution itself that provides for a condition to submit proof of enrolment with the Government Housing Scheme (GEHS) before receiving the additional R300 into an individual-linked savings facility.
14. From the above it clear that the parties dispute arises from the date on which the Applicant’s housing allowance should be adjusted and backdated.
15. The Applicant sought the following reliefs:
16. That the Respondent’s conduct amounted to an unfair labour practice and that the Respondent be ordered to adjust and backdate the Applicant’s housing allowance as a tenant with effect from 01 July 2015 to an individually linked savings facility in the amount of R26 696.24
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s case:
Human's arguement under oath is as follows:
17. The Applicant submitted proof of enrolment on 05 July 2020 dated 17 February 2017. Resolution 7 of 2015 does not require the Applicant to submit proof of enrolment with the GEHS or to complete a new housing allowance application form before it can be implemented.
18. The Applicant is not a homeowner despite the mistake on persal providing that she is a new homeowner. The Applicant would not lie about her status as a tenant and she does not stand to benefit because homeowner receive full housing allowance together with their salaries or they have the option of directing the allowance to an individually linked savings facility. Whereas, if the tenant resigns or is dismissed, the whole amount in the savings facility is forfeited. It is therefore preferential to apply for the subsidy as a homeowner and not a tenant.
19. The PSCBC Resolution 7 of 2015 created a judicial right and entitlement to a housing allowance and its adjustment from 01 July 2015 is a benefit to which the Applicant is entitled.
20. According to PAM E 2.3.2 and PSCBC Resolution 7 of 2015 no. 4.4.2, 4.5.1, 4.5.2, 4.5.3, 4.5.6.1, 4.5.6.5.2 and 4.5.6.5.2, employees who applied, qualified and received a housing allowance of R900 as a tenant prior to 01 July 2015, will with effect from 01 July 2015, continue to receive the R900 while the amount the allowance was increased with, namely R300, will be deposited into an individually-linked saving facility. The R300 will be increased annually with the CPI of the previous financial year.
21. The Determination and Directive on Housing Allowance for Employees in the Public Service, September 2018 at 2.2.2.2 provides that employees in service prior to 27 May 2015 who were recipients of the housing allowance as home owners but failed to complete the new housing allowance application for home owners shall continue to receive R900 housing allowance without any adjustment. This only applied to homeowners and not tenants and the latter clearly did not have to resubmit any application form or proof of enrolment with the GEHS.
22. Thus the Respondent faulted when it required the Applicant to submit a new application or proof of enrolment and thus committed an unfair labour practice also by refusing to adjust the Applicant’s housing allowance or insisting on backdating her allowance with effect from July 2020.
23. The Determination states that in order to access the funds in the individual- linked savings facility the employee must be registered with the GEHS. It does not specify when this must be registered or enrolled or that the date of enrolment has an effect on the date on which the Applicant will be backdated. It simply states that if you want to access the funds and services, you must be registered or enrolled with the GEHS.
24. The Respondent failed to provide proof of any communication sent to the Applicant that states that she had to be enrolled with the GEHS before a certain date otherwise she will forfeit being backdated from 01 July 2015.
25. There is no proof that such communication was sent to the trade unions and if indeed it was sent it would have contravened the provisions of the Determination. The trade unions have no responsibility to inform employees as not all employees belong to trade unions.
26. The Determination states that if the employee is not enrolled with the GEHS, the accumulated savings will be forfeited when the employee dies. It does not suggest that if not enrolled no funds will be directed towards the savings facility. Enrollment never had the intention of preventing the employer from backdating the employee, but to ensure access to the funds directed to the individual -linked savings facility.
27. The Applicant enrolled with the GEHS which means that she will be prejudiced when she retires or dies as the funds that should have been directed to the savings facility since July 2015 have not been directed to the savings facility as required by the policy.
Respondent's case
Moloi’s argument on behalf the Respondent under oath is as follows:
28. The Applicant in the Department’s record does not appear as a tenant. As she claims she was a tenant when she applied for a housing allowance and that she is still tenant.
29. The Applicant did not enroll with the GEHS as was stipulated on paragraph 4.4.3 of the Resolution, which states that that employees shall enroll with the GEHS with effect from 01 January 2016.
30. The Applicant only enrolled on 17 February 2017 and submitted her outstanding documents on 05 July 2020 after being asked by the Department’s official and which is the month the Department is willing and ready to pay but paragraph 4.5.6.1 of the Resolution states that “employees who are eligible to receive the housing allowance but do not own a house shall continue to receive R900 (Nine hundred rand) per month. The difference between the total housing allowance and R900 (Nine hundred rand) shall be diverted and accumulated into an individual-linked saving facility”.
31. According to the Respondent’s records the Applicant appears to be a homeowner.
32. The Applicant was aware of the outstanding documents as per her e-mail dated 05 July 2020 in which she made mention of the attachments of outstanding GEHS form, which gives a clear indication that there were documents which she was supposed to submit to the Department before that allowance could be implemented.
33. The Applicant failed to comply with the time frames as they are stipulated in the resolution and she also took her own time to enroll with the GEHS despite the time limits clearly being stipulated in the Resolution at paragraph 4.4.3.
34. In her e-mail referred to above, she mentioned that she made attachments of the GEHS forms after being asked by the Department’s official.
ANALYSIS OF EVIDENCE AND ARGUMENT
35. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings.
36. Section 185 provides that every employee has a right not to be subjected to unfair labour practice.
37. Section 186(2)(a) of the LRA describes an unfair labour practice as any act or omission that arises between an employer and an employee amongst other things involving unfair conduct by the employer relating to promotion, demotion, or training of an employee or relating to the provisions of benefits to an employee.
38. The Applicant in this matter challenged the Respondent's decision not to adjust and backdate her housing allowance from 01 July 2015. The Applicant submitted her proof on 05 July 2020 which is dated 17 February 2017. There is no requirement in the Resolution itself that provides for a condition to submit proof of enrolment with the Government Housing Scheme (GEHS) before receiving the additional R300.
39. The Applicant is not a homeowner despite the mistake on her persal providing that she is a new homeowner. The Applicant would not lie about her status as a tenant and she does not stand to benefit because homeowners’ receives full housing allowance together with their salaries or they have the option of directing the allowance to an individually linked savings facility. Whereas, if the tenant resigns or is dismissed, the whole amount in the savings facility is forfeited. It is therefore preferential to apply for the subsidy as a homeowner and not as a tenant.
40. The Respondent's contention is that the Applicant in the Department’s record does not appear as a tenant. As she claims she was a tenant when she applied for a housing allowance and that she is still a tenant. According to the Respondent’s records the Applicant appears to be a new homeowner.
41. The Applicant did not enroll with the GEHS as stipulated on paragraph 4.4.3 of the Resolution, which states that that employees shall enroll with the GEHS with effect from the 01 January 2016.
42. The Applicant only enrolled on 17 February 2017 and submitted her outstanding documents on 05 July 2020 after being asked by the Department’s official and which is the month the Department is willing and ready to pay but paragraph 4.5.6.1 of the Resolution states that employees who are eligible to receive the housing allowance but do not own a house shall continue to receive R900 (Nine hundred rand) per month. The difference between the total housing allowance and R900 (Nine hundred rand) shall be diverted and accumulated into an individual-linked savings facility.
43. The Applicant was aware of the outstanding documents as per her e-mail dated 05 July 2020 in which she made mention of the attachments of outstanding GEHS form, which gives a clear indication that there were documents which she was supposed to submit to the Department before that allowance could be implemented.
44. The Applicant failed to comply with the time frames as they are stipulated in the resolution and she also took her own time to enroll with GEHS despite being stipulated in the Resolution at paragraph 4.4.3.
45. In her e-mail referred to above, she mentioned that she made attachments of the GEHS forms after being asked by the Department’s official.
46. The most probable version is that of the Respondent that it did not commit an unfair labour practice when it did not increase the Applicant’s housing allowance with effect from 01 July 2015 for failing to comply with the provisions of the Resolution in terms of enrolling with GEHS and that she does not appear as a tenant in the Respondent’s records as indicated in her pay slip (persal), for the following reasons:
47. The Resolution 7 of 2015 provides for an Agreement under paragraph 4 and in essence it states in paragraph 4.1.4 that all employees who wish to use service offered through the GEHS shall be required to enroll with GEHS. Paragraph 4.4.3 of the Resolution under Transitional Arrangements provides that employees shall enroll with the GEHS with effect from 01 January 2016.
48. In light of these paragraphs, I find that the Resolution sufficiently provided for a requirement that had to be met by an employee before the resolution could be effectively implemented namely that employees who wish to use service offered through the GEHS shall be required to enroll with GEHS and that employees shall enroll with the GEHS with effect from 01 January 2016.
49. Therefore, the Applicant’s representative’s argument that there was no requirement in the Resolution requiring the Applicant to be enrolled with the GEHS before the benefit is adjusted and that it was only aimed at homeowners more than to tenants, is not true.
50. Paragraph 4.5.6.1 provides for the Individual-linked savings facility and it states that employees who are eligible to receive housing allowance but do not own a house shall continue to receive R900 per month. The difference between the total housing allowance and the R900 shall be diverted into and accumulated in an individual-linked savings facility.
51. The Applicant’s representative argued that it is a mistake that the Applicant’s pay slip (persal) shows that she is a homeowner and not a tenant. The Applicant would not lie about her status as a tenant and she does not stand to benefit because homeowners’ receive full housing allowances together with their salaries or they have the option of directing the allowance to an individually linked savings facility. Whereas, if the tenant resigns or is dismissed, the whole amount in the savings facility is forfeited. It is therefore preferential to apply for the subsidy as a homeowner and not a tenant.
52. The Respondent on the other hand contended that the Applicant only enrolled on 17 February 2017 and submitted her outstanding documents on 05 July 2020 after being asked by the department’s official and which is the month that the Department is willing and ready to pay, however, the Applicant in terms of the employment records appears to be a new homeowner.
53. The Applicant’s pay slip (persal) as her record of employment shows that she is a new homeowner and it means as a new homeowner she will not be entitled to the benefit that is made available for tenants. This is so because employees who are eligible to receive the housing allowance but do not own a home continue to receive R900. The difference between the total housing allowance and the R900 shall be diverted into an individual-linked savings facility. The Applicant’s employment document reflects her as a new homeowner. If it is a mistake, which I doubt, in my view it is a very costly mistake which for as long as it remains on the Applicant’s record of employment and bearing in mind the Respondent’s contention, it purports to be correct in the absence of any contradictory evidence from the Applicant party.
54. It is my considered view, that it is not enough for the Applicant to show me that she met the minimum provisions for the Resolution 7 of 2015 but it is important for the Applicant to show me that she met the inherent requirements as provided in paragraphs 4.1.4, 4.4.3 and 4.5.6.1 of the Resolution and in this regard she failed.
55. The Applicant party failed to show that she complied with the inherent provisions of the Resolution, namely the date she enrolled for GEHS, submission of the outstanding documents and she is not a tenant according to her pay slip (persal).
56. It also appears from the evidence that at the time she submitted outstanding documents on 05 July 2020 she was no longer a tenant based on the pay slip (persal ) for the period 30 June 2020.
57. Therefore, based on the above reasons, the Respondent’s conduct by no means amounts to an unfair labour practice.
58. I therefore find that the Respondent's conduct of refusing to adjust and backdate the housing allowance of the Applicant (as tenant) with effect from 01 July 2015 did not amount to unfair labour practice.
AWARD
59. The Applicant's dispute referral is hereby dismissed.
……………………………………………………….
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry: Education