PSES476-15/16LP
PSES476-15/16LP
Award Date:
11 February 2016
Case Number: PSES476-15/16LP
Province: Limpopo
Applicant: THULARE DAVID MOHLAMONYANE
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the Department of Education Limpopo offices, 113 Biccard Street, Polokwane
Award Date: 11 February 2016
Arbitrator: ARNE SJOLUND
Arbitration Award
Commissioner: ARNE SJOLUND
Case No: PSES476-15/16LP
Date of Award: 11 FEBRUARY 2016
IN THE MATTER BETWEEN:
THULARE DAVID MOHLAMONYANE Union / Applicant / Employee party
And
DEPARTMENT OF EDUCATION-LIMPOPO Respondent / Employer party
Union/Applicant’s representative:
Mr. M Moloto
Union/Applicant’s address:
P.O Box 5855
Polokwane
0750
Telephone: 086-100 6007
Telefax: 086-545 9393
E-mail: malesa@malesamoloto.co.za
Respondent’s representative:
Mr. R Makhema
Respondent’s address: Private Bag x 9489
Polokwane
0700
Telephone: 015-290 7600
Telefax: 015-297 0507
E-mail: makhemar@edu.limpopo.gov.za
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. Mr. Thulare David Mohlamonyane (“the Applicant”) was represented by an Attorney, Mr. M Moloto. The Department of Education-Limpopo Province (“the Respondent”) was represented by Mr. R Makhema employed by the Respondent as a Labour Relations Officer. The hearing was held at the Department of Education Limpopo offices, 113 Biccard Street, Polokwane on 28 January 2016.
2. The matter is considered on papers although verbal submissions were made by both parties.
3. The parties agreed to submit heads of arguments by 12 February 2016.
ISSUE TO BE DECIDED
4. The matter is brought in terms of section 186 (2) (a) of the Labour Relations Act (LRA) 66 of 1995 – i.e. Unfair conduct – benefits.
5. I am tasked to decide whether the Applicant is entitled to an acting allowance, should I find that the Applicant is entitled to an acting allowance, to order the appropriate relief.
6. The parties agreed that the only issue in dispute was whether the Applicant was entitled to an acting allowance for the period as from 01 October 2009 up to 08 November 2010 although he was never issued with a letter to act.
BACKGROUND TO THE ISSUE
7. The Applicant is an Educator at the Rahlakgane Primary School in Denilton, Polokwane.
8. The Applicant alleges that he was acting as Deputy Headmaster at the Rahlakgane Primary School from 01 October 2009 to 08 November 2010 and was not paid acting allowance for which he was entitled to.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Evidence
9. The Applicant submitted that he was entitled to an acting allowance for the time he was acting as Deputy Principal although he never received a letter confirming that he was appointed to act, by the Respondent.
10. The Applicant’s case is based on the matters of Johnson Edward Jacobus Hendry GPSSBC & others (C314/2005) (2006) ZALC 85 (5 September 2006, and Gauteng Department of Local Government and Housing V IA Sirkhot NO GPSSBC & another, case number JR408/2012. In the aforementioned cases the employees acted without being issued with formal letters to act. The Court found that the employees were entitled to an acting allowance although they never received a formal letter to act. The Court found in the Johnson’s matter that the employee was entitled to an acting allowance although he never received a formal letter that appointed him to act and that the refusal to pay an acting allowance was based on a technicality.
11. The Applicant believes that the refusal by the Respondent to pay him an acting allowance, the Respondent is unfairly enriching them as they are benefiting from the Applicant acting and not paying him for the service rendered.
12. The Applicant submitted supporting document indicating where he was paid an acting allowance on 05 November 2011.
Respondents’ Evidence
13. It is the Respondents submission that the Applicant was never appointed to act as Deputy Principal in terms of the Respondent’s collective agreement, Resolution 8 of 2001 and 2002 and he is therefore not entitled to an acting allowance. The Respondent further submitted that the Applicant was never issued with a letter to act as required, by the Head of Department.
14. The Respondent submitted that supporting document submitted by the Applicant did not have a bearing on this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. It is common cause that the Applicant acted as Deputy Principal at the Rahlakgane Primary School from 01 October 2009 up to 08 November 2010. It is also common cause that the Applicant was not paid an acting allowance for the period he acted. The Applicant never received a letter confirming that his acting was approved by the Head of Department in terms of Resolution 8 of 2001 and 2002. I therefore have to consider if the Applicant was entitled to an acting allowance in the absence of the letter referred to above. The Applicant submitted that in the matters of Johnson Edward Jacobus Hendry GPSSBC & others (C314/2005) (2006) ZALC 85 (5 September 2006), and Gauteng Department of Local Government and Housing V IA Sirkhot NO GPSSBC & another, case number JR408/2012 it was found that the employees were entitled to an acting allowance although no letter was issued. The Respondent submitted that in the Johnson’s case the employee was appointed in the acting position not by way of a letter. In the Sirkot matter the employee was verbally appointed with approval from the Head of Department.
16. In considering the totality of the circumstances’ I am of the opinion that the Applicant is not entitled to an acting allowance as he was never issued with a letter as required by the Head of Department. In the Sirkot matter the employee was verbally informed of his acting status. In this matter it would appear that the Applicant started acting on his own accord and no one ever requested the Applicant to act and he started acting on his own accord. I also find that the supporting documents submitted by the Applicant do not have any bearing on this matter. It would be irresponsible to allow employees to start acting on their own accord, without following due process and then claiming an acting allowance. The Applicant has failed to discharge the onus that the Respondent’s conduct was unfair.
AWARD
17. The Applicant is not entitled to an acting allowance for the period 01 October 2009 to 08 November 2010.
18. The dispute of the Applicant Mr. Thulare David Mohlamonyane against the Department of Education-Limpopo Province is hereby dismissed.
19. No order as to costs is made.
Arne Sjolund
ELRC Commissioner
Province: Limpopo
Applicant: THULARE DAVID MOHLAMONYANE
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Provision of Benefits
Venue: the Department of Education Limpopo offices, 113 Biccard Street, Polokwane
Award Date: 11 February 2016
Arbitrator: ARNE SJOLUND
Arbitration Award
Commissioner: ARNE SJOLUND
Case No: PSES476-15/16LP
Date of Award: 11 FEBRUARY 2016
IN THE MATTER BETWEEN:
THULARE DAVID MOHLAMONYANE Union / Applicant / Employee party
And
DEPARTMENT OF EDUCATION-LIMPOPO Respondent / Employer party
Union/Applicant’s representative:
Mr. M Moloto
Union/Applicant’s address:
P.O Box 5855
Polokwane
0750
Telephone: 086-100 6007
Telefax: 086-545 9393
E-mail: malesa@malesamoloto.co.za
Respondent’s representative:
Mr. R Makhema
Respondent’s address: Private Bag x 9489
Polokwane
0700
Telephone: 015-290 7600
Telefax: 015-297 0507
E-mail: makhemar@edu.limpopo.gov.za
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. Mr. Thulare David Mohlamonyane (“the Applicant”) was represented by an Attorney, Mr. M Moloto. The Department of Education-Limpopo Province (“the Respondent”) was represented by Mr. R Makhema employed by the Respondent as a Labour Relations Officer. The hearing was held at the Department of Education Limpopo offices, 113 Biccard Street, Polokwane on 28 January 2016.
2. The matter is considered on papers although verbal submissions were made by both parties.
3. The parties agreed to submit heads of arguments by 12 February 2016.
ISSUE TO BE DECIDED
4. The matter is brought in terms of section 186 (2) (a) of the Labour Relations Act (LRA) 66 of 1995 – i.e. Unfair conduct – benefits.
5. I am tasked to decide whether the Applicant is entitled to an acting allowance, should I find that the Applicant is entitled to an acting allowance, to order the appropriate relief.
6. The parties agreed that the only issue in dispute was whether the Applicant was entitled to an acting allowance for the period as from 01 October 2009 up to 08 November 2010 although he was never issued with a letter to act.
BACKGROUND TO THE ISSUE
7. The Applicant is an Educator at the Rahlakgane Primary School in Denilton, Polokwane.
8. The Applicant alleges that he was acting as Deputy Headmaster at the Rahlakgane Primary School from 01 October 2009 to 08 November 2010 and was not paid acting allowance for which he was entitled to.
SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Evidence
9. The Applicant submitted that he was entitled to an acting allowance for the time he was acting as Deputy Principal although he never received a letter confirming that he was appointed to act, by the Respondent.
10. The Applicant’s case is based on the matters of Johnson Edward Jacobus Hendry GPSSBC & others (C314/2005) (2006) ZALC 85 (5 September 2006, and Gauteng Department of Local Government and Housing V IA Sirkhot NO GPSSBC & another, case number JR408/2012. In the aforementioned cases the employees acted without being issued with formal letters to act. The Court found that the employees were entitled to an acting allowance although they never received a formal letter to act. The Court found in the Johnson’s matter that the employee was entitled to an acting allowance although he never received a formal letter that appointed him to act and that the refusal to pay an acting allowance was based on a technicality.
11. The Applicant believes that the refusal by the Respondent to pay him an acting allowance, the Respondent is unfairly enriching them as they are benefiting from the Applicant acting and not paying him for the service rendered.
12. The Applicant submitted supporting document indicating where he was paid an acting allowance on 05 November 2011.
Respondents’ Evidence
13. It is the Respondents submission that the Applicant was never appointed to act as Deputy Principal in terms of the Respondent’s collective agreement, Resolution 8 of 2001 and 2002 and he is therefore not entitled to an acting allowance. The Respondent further submitted that the Applicant was never issued with a letter to act as required, by the Head of Department.
14. The Respondent submitted that supporting document submitted by the Applicant did not have a bearing on this matter.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. It is common cause that the Applicant acted as Deputy Principal at the Rahlakgane Primary School from 01 October 2009 up to 08 November 2010. It is also common cause that the Applicant was not paid an acting allowance for the period he acted. The Applicant never received a letter confirming that his acting was approved by the Head of Department in terms of Resolution 8 of 2001 and 2002. I therefore have to consider if the Applicant was entitled to an acting allowance in the absence of the letter referred to above. The Applicant submitted that in the matters of Johnson Edward Jacobus Hendry GPSSBC & others (C314/2005) (2006) ZALC 85 (5 September 2006), and Gauteng Department of Local Government and Housing V IA Sirkhot NO GPSSBC & another, case number JR408/2012 it was found that the employees were entitled to an acting allowance although no letter was issued. The Respondent submitted that in the Johnson’s case the employee was appointed in the acting position not by way of a letter. In the Sirkot matter the employee was verbally appointed with approval from the Head of Department.
16. In considering the totality of the circumstances’ I am of the opinion that the Applicant is not entitled to an acting allowance as he was never issued with a letter as required by the Head of Department. In the Sirkot matter the employee was verbally informed of his acting status. In this matter it would appear that the Applicant started acting on his own accord and no one ever requested the Applicant to act and he started acting on his own accord. I also find that the supporting documents submitted by the Applicant do not have any bearing on this matter. It would be irresponsible to allow employees to start acting on their own accord, without following due process and then claiming an acting allowance. The Applicant has failed to discharge the onus that the Respondent’s conduct was unfair.
AWARD
17. The Applicant is not entitled to an acting allowance for the period 01 October 2009 to 08 November 2010.
18. The dispute of the Applicant Mr. Thulare David Mohlamonyane against the Department of Education-Limpopo Province is hereby dismissed.
19. No order as to costs is made.
Arne Sjolund
ELRC Commissioner