ELRC250-21/22EC
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Award Date:
04 August 2021
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Case No ELRC250-21/22EC
In the matter between
SAOU obo M Bagshaw Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 3 August 2021
DATE OF AWARD: 4 August 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 ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Department of Education – Eastern Cape has failed to pay out the educator’s leave gratuity.
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 Virtual Arbitration hearing was held on 3 August 2021 via Zoom.
2. The Applicant, Ms M Bagshaw - Persal Number 13926993, was present and was represented by Ms S De Brugge from the Suid Afrikaanse Onderwys Unie (SAOU).
3. The Respondent, Department of Education - Eastern Cape, was represented by Ms A Slabbert from the Labour Relations Department. The Respondent’s Representative joined telephonically and only at the end of the proceedings as she was allegedly struggling to join the proceedings.
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Respondent has failed to pay out the Applicant’s leave gratuity and if the Respondent has contravened the provisions of Resolution 7 of 2001 (PAM Chapter H) order payment of the Applicant’s leave gratuity.
BACKGROUND TO THE DISPUTE
5. The Applicant was previously employed by the Respondent as a Principal at Collegiate Girls High School in Port Elizabeth and went on retirement on 30 June 2020.
6. The Applicant has received her pension, however has still not been paid her leave gratuity.
7. The Applicant seeks to have the leave gratuity paid out by the Respondent.
8. The Applicant’s Representative submitted a bundle of documents which was forwarded to the Respondent and myself prior to these proceedings.
SURVEY OF EVIDENCE AND ARGUMENT
9. 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
10. The Applicant stated the following after questions were put to her:
- That she was employed by the Respondent as a Principal at Collegiate Girls High School in Port Elizabeth before going on retirement.
- That she had retired on 30 June 2020 in terms of the Employment of Educators Act No 76 of 1998.
- That she had received her pension benefits.
- That she had still not received her leave gratuity.
- That the Applicant earned a monthly gross Salary of R51 568.00 prior to retirement. (R618 816.00 per annum).
- That in terms of ELRC Resolution 7 of 2001 Annexure A, Leave Measures, Chapter F paragraph 5, as well as Chapter H Paragraph H4.5 in the PAM: Annual leave accrued prior to 1 July 2000 and during the period 1 July 2000 to 31 December 2001, should be paid out on retirement.
- That the leave gratuity reflected as 71.42 days on her payslip for June 2020. (Bundle page 10).
11. The Applicant’s Representative requested that the Applicant’s capped leave be paid out and the Respondent pay interest for the long delay in paying out the capped leave.
The Respondent’s Submissions
12. The Respondent’s Representative stated that the Respondent does not dispute the fact that the Applicant needs to be paid her leave gratuity.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
13. It is common cause between the parties that the Applicant’s leave gratuity needs to be paid out by the Respondent.
14. Resolution 7 of 2001 Annexure A, Chapter F Paragraph 5.2 clearly states that:
The payouts in respect of such leave credits shall be made in the event of:
5.2.1 Death
5.2.2 Retirement, including early retirement; or
5.2.3 Medical boarding
15. These same conditions for payout of leave credits are stated in the Personnel Administrative Measure (PAM) document Chapter H Paragraph H.4.5.3.
16. This principle was instilled by the Basic Conditions of Employment Act No 75 of 1997 (BCEA) Section 40 (b), which clearly states:
Payments on Termination
On termination of employment, an employer must pay an employee -
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken;
17. According to the Applicant’s June 2020 payslip the Applicant has 71.42 days leave gratuity accrued. After some 13 months the Respondent is still not in a position to pay the Applicant her capped leave.
18. The Applicant’s payslip is a document issued by the Respondent and contains the relevant information which for all intentions and purposes should be correct and I do not see why this matter cannot be finalized on the days indicated on the payslip.
19. The amount due to the Applicant for her leave gratuity is:
Gross Salary per month R51 568.00 ÷ 4.33 = R11 909.46 per week ÷ 5 days work week = R2 381.89 per day.
R2 381.89 per day X 71.42 days accrued leave = R170 114.84.
20. The Applicant’s Representative has requested that interest be paid on the amount outstanding. Section 75 of the BCEA provides that an employer must pay interest on any amount due and payable in terms of the BCEA at the rate of interest prescribed in terms of Section 1 of the Prescribed Rate on Interest Act no. 55 1975, to any person to whom a payment should have been made.
21. It is my finding based on the above submissions that the Respondent has contravened Resolution 7 of 2001 by failing to pay out the Applicant’s leave gratuity. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicant’s leave gratuity and therefore make the following award.
AWARD
22. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, M Bagshaw – Persal Number 13926993, the amount of R170 114.84 (One Hundred and Seventy Thousand One Hundred and Fourteen Rand and Eighty Four Cents) less PAYE.
23. The payment mentioned in paragraph (22) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, M Bagshaw – Persal Number 13926993, must be done by no later than 31 August 2021.
24. Should the payment as mentioned in paragraph (23) above, for whatever reason, not be made by 31 August 2021, the Respondent, Department of Education – Eastern Cape, is to pay interest at 7% on the amount of R170 114.84 (One Hundred and Seventy Thousand One Hundred and Fourteen Rand and Eighty Four Cents) to the Applicant, M Bagshaw – Persal Number 13926993, from 1 September 2021 until date of payment by the Respondent, Department of Education – Eastern Cape, in terms of Section 75 of the BCEA.
Panellist: AW Howden
ELRC
In the matter between
SAOU obo M Bagshaw Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 3 August 2021
DATE OF AWARD: 4 August 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 ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Department of Education – Eastern Cape has failed to pay out the educator’s leave gratuity.
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 Virtual Arbitration hearing was held on 3 August 2021 via Zoom.
2. The Applicant, Ms M Bagshaw - Persal Number 13926993, was present and was represented by Ms S De Brugge from the Suid Afrikaanse Onderwys Unie (SAOU).
3. The Respondent, Department of Education - Eastern Cape, was represented by Ms A Slabbert from the Labour Relations Department. The Respondent’s Representative joined telephonically and only at the end of the proceedings as she was allegedly struggling to join the proceedings.
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Respondent has failed to pay out the Applicant’s leave gratuity and if the Respondent has contravened the provisions of Resolution 7 of 2001 (PAM Chapter H) order payment of the Applicant’s leave gratuity.
BACKGROUND TO THE DISPUTE
5. The Applicant was previously employed by the Respondent as a Principal at Collegiate Girls High School in Port Elizabeth and went on retirement on 30 June 2020.
6. The Applicant has received her pension, however has still not been paid her leave gratuity.
7. The Applicant seeks to have the leave gratuity paid out by the Respondent.
8. The Applicant’s Representative submitted a bundle of documents which was forwarded to the Respondent and myself prior to these proceedings.
SURVEY OF EVIDENCE AND ARGUMENT
9. 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
10. The Applicant stated the following after questions were put to her:
- That she was employed by the Respondent as a Principal at Collegiate Girls High School in Port Elizabeth before going on retirement.
- That she had retired on 30 June 2020 in terms of the Employment of Educators Act No 76 of 1998.
- That she had received her pension benefits.
- That she had still not received her leave gratuity.
- That the Applicant earned a monthly gross Salary of R51 568.00 prior to retirement. (R618 816.00 per annum).
- That in terms of ELRC Resolution 7 of 2001 Annexure A, Leave Measures, Chapter F paragraph 5, as well as Chapter H Paragraph H4.5 in the PAM: Annual leave accrued prior to 1 July 2000 and during the period 1 July 2000 to 31 December 2001, should be paid out on retirement.
- That the leave gratuity reflected as 71.42 days on her payslip for June 2020. (Bundle page 10).
11. The Applicant’s Representative requested that the Applicant’s capped leave be paid out and the Respondent pay interest for the long delay in paying out the capped leave.
The Respondent’s Submissions
12. The Respondent’s Representative stated that the Respondent does not dispute the fact that the Applicant needs to be paid her leave gratuity.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
13. It is common cause between the parties that the Applicant’s leave gratuity needs to be paid out by the Respondent.
14. Resolution 7 of 2001 Annexure A, Chapter F Paragraph 5.2 clearly states that:
The payouts in respect of such leave credits shall be made in the event of:
5.2.1 Death
5.2.2 Retirement, including early retirement; or
5.2.3 Medical boarding
15. These same conditions for payout of leave credits are stated in the Personnel Administrative Measure (PAM) document Chapter H Paragraph H.4.5.3.
16. This principle was instilled by the Basic Conditions of Employment Act No 75 of 1997 (BCEA) Section 40 (b), which clearly states:
Payments on Termination
On termination of employment, an employer must pay an employee -
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken;
17. According to the Applicant’s June 2020 payslip the Applicant has 71.42 days leave gratuity accrued. After some 13 months the Respondent is still not in a position to pay the Applicant her capped leave.
18. The Applicant’s payslip is a document issued by the Respondent and contains the relevant information which for all intentions and purposes should be correct and I do not see why this matter cannot be finalized on the days indicated on the payslip.
19. The amount due to the Applicant for her leave gratuity is:
Gross Salary per month R51 568.00 ÷ 4.33 = R11 909.46 per week ÷ 5 days work week = R2 381.89 per day.
R2 381.89 per day X 71.42 days accrued leave = R170 114.84.
20. The Applicant’s Representative has requested that interest be paid on the amount outstanding. Section 75 of the BCEA provides that an employer must pay interest on any amount due and payable in terms of the BCEA at the rate of interest prescribed in terms of Section 1 of the Prescribed Rate on Interest Act no. 55 1975, to any person to whom a payment should have been made.
21. It is my finding based on the above submissions that the Respondent has contravened Resolution 7 of 2001 by failing to pay out the Applicant’s leave gratuity. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicant’s leave gratuity and therefore make the following award.
AWARD
22. The Respondent, Department of Education - Eastern Cape, is hereby instructed to pay the Applicant, M Bagshaw – Persal Number 13926993, the amount of R170 114.84 (One Hundred and Seventy Thousand One Hundred and Fourteen Rand and Eighty Four Cents) less PAYE.
23. The payment mentioned in paragraph (22) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, M Bagshaw – Persal Number 13926993, must be done by no later than 31 August 2021.
24. Should the payment as mentioned in paragraph (23) above, for whatever reason, not be made by 31 August 2021, the Respondent, Department of Education – Eastern Cape, is to pay interest at 7% on the amount of R170 114.84 (One Hundred and Seventy Thousand One Hundred and Fourteen Rand and Eighty Four Cents) to the Applicant, M Bagshaw – Persal Number 13926993, from 1 September 2021 until date of payment by the Respondent, Department of Education – Eastern Cape, in terms of Section 75 of the BCEA.
Panellist: AW Howden
ELRC
ELRC 302 -20 /21 NW
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