ELRC730-20/21EC
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ELRC730-20/21EC
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Award Date:
28 April 2021
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Case No ELRC730-20/21EC
In the matter between
NAPTOSA obo T Toll Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 22 April 2021
DATE OF AWARD: 28 April 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA), in that the Department of Education has failed to pay the educator for services rendered.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The 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 69.5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (Collective Agreement No. 6 of 2016). The Arbitration was held on 22 April 2021 via a Virtual Hearing on Zoom.
2. The parties agreed that the Applicant’s attendance was not required due to the nature of the dispute and the fact that all the issues were common cause as the Applicant was experiencing connectivity issues due to a storm in the Humansdorp area. The Applicant, Ms Thessa Toll - Persal Number 57556938, was represented by Ms A Witbooi from National Professional Teachers’ Organisation of South Africa (NAPTOSA).
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr E Hector (Labour Relations Department).
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent has contravened the provisions of Section 32 of the BCEA, in that the Respondent has failed to pay the Applicant for the period 25 February 2020 to 31 May 2020, for services rendered.
BACKGROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent as a Post Level 1 Educator, at St Patricks School in Humansdorp, with her commencement date being 25 February 2020.
6. The Applicant has not been paid for services rendered from 25 February 2020 to 21 May 2020, however has been paid by the Respondent from 1 June 2020 to date.
7. The Applicant requests that she be paid for the period 25 February 2020 to 31 May 2020 for which she has already rendered her services. The Applicant also requests that she be paid her Housing Allowance for this period.
SURVEY OF EVIDENCE AND ARGUMENT
8. It is common cause between the parties:
- That the Applicant has been employed by the Respondent as a Post Level 1 Educator at St Patricks School in Humansdorp.
- That the Applicant has been employed by the Respondent as a Post Level 1 Educator on REQV 14.
- That the Applicant commenced employment on 25 February 2020 after receiving her Appointment Letter.
- That the Applicant was employed on the salary level of R280 038.00 per annum.
- That the Applicant has exhausted all internal avenues.
- That the Applicant has been paid from 1 June 2020 to date.
- That to date the Applicant has not been paid by the Respondent for the period 25 February 2020 to 31 May 2020.
- That the Applicant has submitted all the relevant documentation required for the appointment to be made on the Persal system.
9. Due to the fact that everything is common cause the parties did not submit bundles of documentary evidence.
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
11. The Applicant’s Representative stated that they would like the Applicant’s outstanding salary for the period 25 February 2020 to 31 May 2020 to be paid by 31 May 2021.
12. The Applicant’s Representative further requested that the Applicant receive her Housing allowance of R1 398.35 per month for this period.
The Respondent’s Submissions
13. The Respondent’s Representative agreed that the Applicant needed to be paid for the period 25 February 2020 to 31 May 2020.
14. The Respondent’s Representative further stated that the Applicant qualified for the Housing Allowance.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Clause 68 of the Council’s Constitution - Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to conciliation and arbitration in terms of these procedures.
16. Clause 69.1 also provides that 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 this Section 33 and Section 33A of the Act.
17. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 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
69.2.2 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;
18. Clause 69.3 provides that where the General Secretary acts in terms of this Clause 69, and the matter also involves the interpretation or application of a collective agreement, this Clause 24 applies to the exclusion of Clause 8.
19. Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party 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.
20. Clause 69.6 also provides that a panellist, conducting 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.
21. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
22. The dispute before me relates to the non-compliance to Section 32 of the BCEA which relates to the entitlement of a salary.
23. It is common cause that the Applicant commenced employment on 25 February 2020. It is further common cause that the Applicant has been paid as from 1 June 2020, however has not been paid for services rendered from 25 February 2020.
24. Section 32(1) of the 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.
25. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven (7) days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
26. It is my finding, based on the above and on the balance of probability that the Respondent has contravened the provisions of Section 32 of the BCEA by failing to pay the Applicant for the period 25 February 2020 to 31 May 2020.
27. The Applicant is entitled to be paid as follows:
R280 038.00 divided by 12 months equals R23 336.50 per month
R23 336.50 divided by 4.33 equals R5 389.49 per week
R5 389.49 divided by 5 days per week equals R1 077.89 per day
For February 2020: R1 077.89 per day X 4 days (25 to 28 February) R 4 311.56
For March 2020: R23 336.50
For April 2020: R23 336.50
For May 2020: R23 336.50
TOTAL DUE TO THE APPLICANT R74 321.06
28. With regards to the Housing Allowance, no claim mention of this was made in the referral form.
29. It is trite that a Housing Allowance is a benefit. It is further trite that an employee can only qualify for this benefit once certain requirements have been met. A Housing Allowance is therefore not an automatic right. No evidence was lead with regards to when the Applicant applied for this benefit and I am unable to determine from which date the Applicant became “entitled” to this benefit.
30. With this in mind I recommend that the Respondent pay any Housing Allowance due to the Applicant, to which she is entitled, for the period 25 February 2020 to 31 May 2020. Should the Respondent not wish to do this the Applicant is well within her rights to lodge a dispute in the form of an Unfair Labour Practice – Benefits or an Interpretation/Application and Enforcement Dispute.
AWARD
31. I find that the Respondent, Department of Education – Eastern Cape, has contravened the provisions of Section 32 of the BCEA, by failing to pay the Applicant, Thessa Toll - Persal Number 57556938, for the period 25 February 2020 to 31 May 2020.
32. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, Thessa Toll - Persal Number 57556938, the amount of R74 321.06 (Seventy Four Thousand Three Hundred and Twenty One Rand and Six Cents).
33. The payment mentioned in paragraph (32) above, less PAYE, pension deductions, and other Persal related deductions, must be made by the Respondent, the Department of Education - Eastern Cape, to the Applicant, Thessa Toll - Persal Number 57556938, by no later than 31 May 2021.
Panellist: AW Howden
ELRC
In the matter between
NAPTOSA obo T Toll Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 22 April 2021
DATE OF AWARD: 28 April 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 - Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education - Eastern Cape has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA), in that the Department of Education has failed to pay the educator for services rendered.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The 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 69.5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (Collective Agreement No. 6 of 2016). The Arbitration was held on 22 April 2021 via a Virtual Hearing on Zoom.
2. The parties agreed that the Applicant’s attendance was not required due to the nature of the dispute and the fact that all the issues were common cause as the Applicant was experiencing connectivity issues due to a storm in the Humansdorp area. The Applicant, Ms Thessa Toll - Persal Number 57556938, was represented by Ms A Witbooi from National Professional Teachers’ Organisation of South Africa (NAPTOSA).
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr E Hector (Labour Relations Department).
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent has contravened the provisions of Section 32 of the BCEA, in that the Respondent has failed to pay the Applicant for the period 25 February 2020 to 31 May 2020, for services rendered.
BACKGROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent as a Post Level 1 Educator, at St Patricks School in Humansdorp, with her commencement date being 25 February 2020.
6. The Applicant has not been paid for services rendered from 25 February 2020 to 21 May 2020, however has been paid by the Respondent from 1 June 2020 to date.
7. The Applicant requests that she be paid for the period 25 February 2020 to 31 May 2020 for which she has already rendered her services. The Applicant also requests that she be paid her Housing Allowance for this period.
SURVEY OF EVIDENCE AND ARGUMENT
8. It is common cause between the parties:
- That the Applicant has been employed by the Respondent as a Post Level 1 Educator at St Patricks School in Humansdorp.
- That the Applicant has been employed by the Respondent as a Post Level 1 Educator on REQV 14.
- That the Applicant commenced employment on 25 February 2020 after receiving her Appointment Letter.
- That the Applicant was employed on the salary level of R280 038.00 per annum.
- That the Applicant has exhausted all internal avenues.
- That the Applicant has been paid from 1 June 2020 to date.
- That to date the Applicant has not been paid by the Respondent for the period 25 February 2020 to 31 May 2020.
- That the Applicant has submitted all the relevant documentation required for the appointment to be made on the Persal system.
9. Due to the fact that everything is common cause the parties did not submit bundles of documentary evidence.
10. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
11. The Applicant’s Representative stated that they would like the Applicant’s outstanding salary for the period 25 February 2020 to 31 May 2020 to be paid by 31 May 2021.
12. The Applicant’s Representative further requested that the Applicant receive her Housing allowance of R1 398.35 per month for this period.
The Respondent’s Submissions
13. The Respondent’s Representative agreed that the Applicant needed to be paid for the period 25 February 2020 to 31 May 2020.
14. The Respondent’s Representative further stated that the Applicant qualified for the Housing Allowance.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Clause 68 of the Council’s Constitution - Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to conciliation and arbitration in terms of these procedures.
16. Clause 69.1 also provides that 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 this Section 33 and Section 33A of the Act.
17. Clause 69.2 provides that a Collective Agreement of the Council is deemed to include:
69.2.1 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
69.2.2 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;
18. Clause 69.3 provides that where the General Secretary acts in terms of this Clause 69, and the matter also involves the interpretation or application of a collective agreement, this Clause 24 applies to the exclusion of Clause 8.
19. Clause 69.5 further provides that the General Secretary may on his own discretion or on the request of a party 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.
20. Clause 69.6 also provides that a panellist, conducting 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.
21. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.
22. The dispute before me relates to the non-compliance to Section 32 of the BCEA which relates to the entitlement of a salary.
23. It is common cause that the Applicant commenced employment on 25 February 2020. It is further common cause that the Applicant has been paid as from 1 June 2020, however has not been paid for services rendered from 25 February 2020.
24. Section 32(1) of the 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.
25. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven (7) days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
26. It is my finding, based on the above and on the balance of probability that the Respondent has contravened the provisions of Section 32 of the BCEA by failing to pay the Applicant for the period 25 February 2020 to 31 May 2020.
27. The Applicant is entitled to be paid as follows:
R280 038.00 divided by 12 months equals R23 336.50 per month
R23 336.50 divided by 4.33 equals R5 389.49 per week
R5 389.49 divided by 5 days per week equals R1 077.89 per day
For February 2020: R1 077.89 per day X 4 days (25 to 28 February) R 4 311.56
For March 2020: R23 336.50
For April 2020: R23 336.50
For May 2020: R23 336.50
TOTAL DUE TO THE APPLICANT R74 321.06
28. With regards to the Housing Allowance, no claim mention of this was made in the referral form.
29. It is trite that a Housing Allowance is a benefit. It is further trite that an employee can only qualify for this benefit once certain requirements have been met. A Housing Allowance is therefore not an automatic right. No evidence was lead with regards to when the Applicant applied for this benefit and I am unable to determine from which date the Applicant became “entitled” to this benefit.
30. With this in mind I recommend that the Respondent pay any Housing Allowance due to the Applicant, to which she is entitled, for the period 25 February 2020 to 31 May 2020. Should the Respondent not wish to do this the Applicant is well within her rights to lodge a dispute in the form of an Unfair Labour Practice – Benefits or an Interpretation/Application and Enforcement Dispute.
AWARD
31. I find that the Respondent, Department of Education – Eastern Cape, has contravened the provisions of Section 32 of the BCEA, by failing to pay the Applicant, Thessa Toll - Persal Number 57556938, for the period 25 February 2020 to 31 May 2020.
32. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, Thessa Toll - Persal Number 57556938, the amount of R74 321.06 (Seventy Four Thousand Three Hundred and Twenty One Rand and Six Cents).
33. The payment mentioned in paragraph (32) above, less PAYE, pension deductions, and other Persal related deductions, must be made by the Respondent, the Department of Education - Eastern Cape, to the Applicant, Thessa Toll - Persal Number 57556938, by no later than 31 May 2021.
Panellist: AW Howden
ELRC
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