ELRC722-20/21KZN
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ELRC722-20/21KZN
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Award Date:
22 April 2021
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Case Number: ELRC722-20/21KZN
Commissioner: Lusanda Myoli
Date of Award: 22 April 2021
In the ARBITRATION between
Z. Nakooda
(Applicant)
And
Department of Education KwaZulu Natal
(Respondent)
Applicant’s representative: In person
Applicant’s address: 44 Baijoo Road
Raisethorpe
Pietermaritzburg 3201
Telephone: 0333874074, 0825168884
Telefax: n/a
E-mail: zoid0707@gmail.com
Respondent’s representative: Non-attendance
Respondent’s address: 25 Allan Hirst Drive
Howick
3201
Telephone: 0333423222, 0333552320
Telefax: n/a
E-mail: prudence.mjwara@kzndoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
[1] This is the award in the arbitration between the Applicant, Mr Z. Nakooda (the Applicant), and the Department of Education KwaZulu Natal (the Respondent). The arbitration was held online, on 15 April 2021, under the auspices of the Education Labour Relations Council (ELRC) in terms of section 69 of the ELRC Constitution and this award is issued in terms of section 138 (7) of the Labour Relations Act, 1995 as amended (“LRA”).
[2] In terms of Clause 69 of the ELRC Constitution: “the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of the Act”. There was no record before me that the same matter had been referred to another forum for conciliation or arbitration. The Applicant was present and represented himself. There was no appearance by or for the Respondent. The matter was previously postponed to 15 April 2021 in the previous sitting due to the Respondent’s inability to participate in the arbitration process.
[3] I therefore proceeded with the arbitration process in default in terms of section 138 (5) (b) (i) of the LRA. The proceedings were recorded.
ISSUE TO BE DECIDED
[4] I am required to determine whether the Applicant is entitled to payment of the claimed outstanding salary, in terms of Section 69 of the ELRC Constitution and BCEA provisions. In the event I find that the Applicant is entitled to the relief above, I am further required to determine the appropriate relief.
BACKGROUND TO THE DISPUTE
[5] The Applicant laid a complaint against the Respondent with the ELRC, alleging non-payment of his salary for January 2021. On 22 February 2021, the ELRC issued a compliance letter to the Respondent to file its response and advise whether it is defending the claim within 14 days from date of receipt of the compliance letter.
[6] The matter was subsequently scheduled for arbitration on 30 March 2021. The arbitration did not proceed as the Respondent’s postponement application for the matter to proceed on 15 April 2021 was granted. The Respondent failed to be in attendance again despite having been invited. It is this application that forms the subject matter of this award.
SURVEY OF THE EVIDENCE AND ARGUMENT
APPLICANT’S CASE
[7] The essence of the Applicant’s case against the Respondent is a failure to pay his January 2021 monthly salary, amount of R25 00.00.
[8] The Applicant testified that he was employed by Respondent as a PL1 grade 7 educator on 13 August 2020, as a substitute teacher. He is currently working at Northern Park primary School.
[9] On 15 December 2020, he signed forms for extension of his contract until the end of the term or appointment of the deputy principal. The dispute arose on 2 February 2021 when he escalated the matter to the department of education and was told that the salary will not be paid because his contract was not extended. He then referred a non-payment of salary dispute to the ELRC on the 21 February 2021.
[10] In support of his case the payment was due to him, he read a letter from his school principal, Ms Sarah Lemasson dated March 2021, to the Department of Education. The letter confirms that his appointment on 13 August 2020 was extended to 31 December 2020. That, on 15 December 2020 further documents were completed for extension of his appointment from 1 January 2021 until post of deputy principal is filled and they were sent to the Department of Education. The principal said the Department of Education did not inform her that the temporary post will not be extended. He believes he is entitled to the January 2021 salary because he was told he would be paid until the post is filed or he will be given 30 days’ notice for termination and none of that happened.
[11] Furthermore, when he left school on 15 December 2020 he was under the impression that the contract had not expired and was doing work during that period preparing for 2021. The principal submitted another request for his employment to be extended again in 15 February 2021 until the position is filled. His appointment was confirmed.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[12] The dispute is in respect of a claim for non-payment of salary, in terms of of section 69 of the ELRC Constitution read with the applicable BCEA provisions. The Applicant had to show through evidence and argument that he was entitled to the unpaid January 2021 salary of R25 000.00, he alleged was not paid by the Respondent.
[13] The Applicant testified that on 15 December 2020 documents were completed for extension of his appointment from 1 January 2021 until post of deputy principal is filled and they were sent to the Department of Education. The principal said the Department of Education did not inform her that the temporary post will not be extended.
[14] The Applicant also testified that he is entitled to the January 2021 salary of R25 000.00 because he was told he would be paid until the post is filed or he will be given 30 days’ notice for termination and none of that happened.
[15] Based on the Applicant’s testimony I found the Applicant showed that he had a right to claiming entitlement to his January 2021 salary in the amount of R25 000.00, in terms of extension of a contract of employment he had with the Respondent.
[16] Based on the evidence before me, I find that the Applicant was not paid his monthly salary amount of R25 000.00, for January 2021 by the Respondent.
[17] Therefore, I make the following award:
AWARD
[18] The Respondent, Department of Education KwaZulu Natal, is ordered to pay the Applicant, Mr Z. Nakooda, the sum of R25 000.00 (Twenty Five Thousand Rand Only), for a claim in respect of section 69 of the ELRC Constitution read with the BCEA provisions- nonpayment of his January 2021 salary.
[19] Payment of the amount referred to in the above paragraph must be effected by paying the said amount into the Applicant’s bank account or by cash.
[20] The payment referred to in the preceding paragraph is to be effected on or before 31 May 2021.
[21] In the event of default, interest at the prescribed rate of 7.75% shall accrue daily on any amount remaining unpaid after the specified payment date.
Thus done and signed in Johannesburg, on 22 April 2021.
________________________________
ELRC PANELLIST
LUSANDA MYOLI
Commissioner: Lusanda Myoli
Date of Award: 22 April 2021
In the ARBITRATION between
Z. Nakooda
(Applicant)
And
Department of Education KwaZulu Natal
(Respondent)
Applicant’s representative: In person
Applicant’s address: 44 Baijoo Road
Raisethorpe
Pietermaritzburg 3201
Telephone: 0333874074, 0825168884
Telefax: n/a
E-mail: zoid0707@gmail.com
Respondent’s representative: Non-attendance
Respondent’s address: 25 Allan Hirst Drive
Howick
3201
Telephone: 0333423222, 0333552320
Telefax: n/a
E-mail: prudence.mjwara@kzndoe.gov.za
DETAILS OF THE HEARING AND REPRESENTATION
[1] This is the award in the arbitration between the Applicant, Mr Z. Nakooda (the Applicant), and the Department of Education KwaZulu Natal (the Respondent). The arbitration was held online, on 15 April 2021, under the auspices of the Education Labour Relations Council (ELRC) in terms of section 69 of the ELRC Constitution and this award is issued in terms of section 138 (7) of the Labour Relations Act, 1995 as amended (“LRA”).
[2] In terms of Clause 69 of the ELRC Constitution: “the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of the Act”. There was no record before me that the same matter had been referred to another forum for conciliation or arbitration. The Applicant was present and represented himself. There was no appearance by or for the Respondent. The matter was previously postponed to 15 April 2021 in the previous sitting due to the Respondent’s inability to participate in the arbitration process.
[3] I therefore proceeded with the arbitration process in default in terms of section 138 (5) (b) (i) of the LRA. The proceedings were recorded.
ISSUE TO BE DECIDED
[4] I am required to determine whether the Applicant is entitled to payment of the claimed outstanding salary, in terms of Section 69 of the ELRC Constitution and BCEA provisions. In the event I find that the Applicant is entitled to the relief above, I am further required to determine the appropriate relief.
BACKGROUND TO THE DISPUTE
[5] The Applicant laid a complaint against the Respondent with the ELRC, alleging non-payment of his salary for January 2021. On 22 February 2021, the ELRC issued a compliance letter to the Respondent to file its response and advise whether it is defending the claim within 14 days from date of receipt of the compliance letter.
[6] The matter was subsequently scheduled for arbitration on 30 March 2021. The arbitration did not proceed as the Respondent’s postponement application for the matter to proceed on 15 April 2021 was granted. The Respondent failed to be in attendance again despite having been invited. It is this application that forms the subject matter of this award.
SURVEY OF THE EVIDENCE AND ARGUMENT
APPLICANT’S CASE
[7] The essence of the Applicant’s case against the Respondent is a failure to pay his January 2021 monthly salary, amount of R25 00.00.
[8] The Applicant testified that he was employed by Respondent as a PL1 grade 7 educator on 13 August 2020, as a substitute teacher. He is currently working at Northern Park primary School.
[9] On 15 December 2020, he signed forms for extension of his contract until the end of the term or appointment of the deputy principal. The dispute arose on 2 February 2021 when he escalated the matter to the department of education and was told that the salary will not be paid because his contract was not extended. He then referred a non-payment of salary dispute to the ELRC on the 21 February 2021.
[10] In support of his case the payment was due to him, he read a letter from his school principal, Ms Sarah Lemasson dated March 2021, to the Department of Education. The letter confirms that his appointment on 13 August 2020 was extended to 31 December 2020. That, on 15 December 2020 further documents were completed for extension of his appointment from 1 January 2021 until post of deputy principal is filled and they were sent to the Department of Education. The principal said the Department of Education did not inform her that the temporary post will not be extended. He believes he is entitled to the January 2021 salary because he was told he would be paid until the post is filed or he will be given 30 days’ notice for termination and none of that happened.
[11] Furthermore, when he left school on 15 December 2020 he was under the impression that the contract had not expired and was doing work during that period preparing for 2021. The principal submitted another request for his employment to be extended again in 15 February 2021 until the position is filled. His appointment was confirmed.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
[12] The dispute is in respect of a claim for non-payment of salary, in terms of of section 69 of the ELRC Constitution read with the applicable BCEA provisions. The Applicant had to show through evidence and argument that he was entitled to the unpaid January 2021 salary of R25 000.00, he alleged was not paid by the Respondent.
[13] The Applicant testified that on 15 December 2020 documents were completed for extension of his appointment from 1 January 2021 until post of deputy principal is filled and they were sent to the Department of Education. The principal said the Department of Education did not inform her that the temporary post will not be extended.
[14] The Applicant also testified that he is entitled to the January 2021 salary of R25 000.00 because he was told he would be paid until the post is filed or he will be given 30 days’ notice for termination and none of that happened.
[15] Based on the Applicant’s testimony I found the Applicant showed that he had a right to claiming entitlement to his January 2021 salary in the amount of R25 000.00, in terms of extension of a contract of employment he had with the Respondent.
[16] Based on the evidence before me, I find that the Applicant was not paid his monthly salary amount of R25 000.00, for January 2021 by the Respondent.
[17] Therefore, I make the following award:
AWARD
[18] The Respondent, Department of Education KwaZulu Natal, is ordered to pay the Applicant, Mr Z. Nakooda, the sum of R25 000.00 (Twenty Five Thousand Rand Only), for a claim in respect of section 69 of the ELRC Constitution read with the BCEA provisions- nonpayment of his January 2021 salary.
[19] Payment of the amount referred to in the above paragraph must be effected by paying the said amount into the Applicant’s bank account or by cash.
[20] The payment referred to in the preceding paragraph is to be effected on or before 31 May 2021.
[21] In the event of default, interest at the prescribed rate of 7.75% shall accrue daily on any amount remaining unpaid after the specified payment date.
Thus done and signed in Johannesburg, on 22 April 2021.
________________________________
ELRC PANELLIST
LUSANDA MYOLI
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