ELRC644-20/21 EC
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ELRC236-19/20FS / ELRC237-19/20FS
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Award Date:
22 September 2021
Case No: ELRC236-19/20FS / ELRC237-19/20FS
In the matter between
PSA obo Nthlaile, GRC and Mathibe, ME Applicant
and
Department of Education- Free state First Respondent
Qibing Secondary School Governing Body Second Respondent
PANELLIST: Dr. GC. Van Der Berg
Award: Finalized on 22 September 2021
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing took place on the 24th of January 2020 at the Qibing Secondary School in Wepener, the 31st of March 2020 (postponed due to Covid-19 lockdown) and on 30 August 2021 and the 6th of September 2021, via Zoom video conference. The proceedings were both digitally and manually recorded. The applicants, Nthlaile GRC and Mathibe ME, were represented by CRT Papo, an Official from PSA. The respondents, Department of Education-Free State and the Qibing Secondary School Governing Body (SGB) were represented by T Tsunke, form the Department of Education.
Issue to be decided
2. The applicants referred an unfair labour practice dispute regarding benefits in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended to the ELRC.
3. I am firstly required to determine whether or not the respondent committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation camp in Bloemfontein, during the period of the 14th of October 2018 until the 26th of November 2018.
4. In terms of appropriate relief in the event that I find that the respondents committed an ULP: (1) Allocate arrears of in lieu of benefits the total amount of R60 289-31 to both applicants together.
Background to the Dispute
5. The applicants are employed as teachers at the Qibing Secondary School. During September/October 2018 two meetings took place with the School Governing Body and it was agreed that R50 000-00 was budget for the expenses and all the arrangements were discussed and made for the Grade 12 preparation camp for the examination from the 14th of October 2018 up to the 26th of November 2018. The first applicant claimed that he was appointed as the Coordinator of this camp. He and the other applicant incurred addition cost which were claimed and not paid to them. According to them there was a verbal agreement that their cost and other allowances would be paid as the other teachers’ allowances were paid. This was denied by the respondents.
6. The applicants referred the dispute to ELRC within the 90 day prescribed period as the grievance lodged by them was only handled by the respondents during May 2019. The dispute was referred on the 12th of June 2019. The proceedings were set down for the 9th of July 2019. On the 24th of July 2019 the two cases were joined and the Qibing Secondary School Governing Body as second respondent on request of the applicants. The arbitration proceedings were set down for the 24th of January 2020. It was postponed due to the lockdown and eventually scheduled for the 30th of August 2021 and completed on the 6th of September 2021.
7. The parties did present opening statements on the 24th of January 2020 and the first applicant testified. Written closing statements was received on the 15th of September 2021(two days late), as agreed, on or before the 13th of September 2021. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
8. Both parties submitted bundles of documents. The bundle of the applicants was marked as “A” pages 1-26. The bundle of the respondents was marked as “R” pages 1-22. Both parties did not dispute the authenticity of the respective bundles. On 30 August 2021, the applicants handed in a second bundle of documentation and it was marked as “A1” pages 24 to 33 and contains documentation requested on the 24th of January 2020.
* As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The first Applicant, GRG Nthlaile, P1 teacher, after having been sworn in, testified as follows:
9. He was employed as a teacher at the Qibing Secondary School. Prior to the camp in Bloemfontein for the preparation of the Grade 12 learners for the final examination, the Principal and the teachers had two meetings to plan and arrange the camp. He was nominated to be in charge of the arrangements and the coordinating of the camp. The budget for food and other expenses, was according to him, agreed verbally with the SGB as R50 000-00. He was further told by the Principal that he must use his vehicle during the camp to deliver learners and to buy food from the 14th of October 2018 up to the 26th of November 2018, and he would be paid for it, which included the other applicant.
10. The accommodation was also arranged prior to the start of the camp. On arrival there was not enough accommodation for all the learners and the teachers in the hall. They managed to arrange another room but it was occupied by another supervisor and a teacher. He and the other applicant had no accommodation and they arranged their own accommodation at Turflaagte with a friend.
11. He explained that he used his vehicle during the camp and a summary of his tracker reports appears on page 12 of bundle “A”. He left the camp at 23:00 on a daily basis and returned at 05:00 in the morning to coordinate and arrange for the day’s food and teachings. The catering have been with the SGB which included the menu. He was paid for diesel but in addition he used his own vehicle to pick up bread and other groceries he bought. He used his own credit card but was reimbursed for it to the amount of between R5000-00 and R6000-00.
12. After the 26th of November 2019, the applicants put in a claim that can be seen on pages 11 to 12, and 15 to 16. His claim amounted to R34 001-00 and included transport cost for using his vehicle, loading of groceries for the camp and supervising children as well as examination preparation cost. It further included his cost of coordinating the camp. He requested the SGB to pay his claim. They said it was difficult to determine the exact cost. During cross examination it was stated by the representative of the respondent that receipts were requested from the applicants, but they could not provide any proof of costs incurred. The second applicant kept track of all the receipts of the food and groceries and an additional amount of R15 000-00 was allocated by the SGB.
13. On the 14th of April 2019, they wrote a letter for payment of their claim for the matric camp. They attached a detailed memorandum of the trips and duties. They were not paid out their claims and wrote a second letter on the 3rd of May 2019 to follow up on their claims. Other teachers were paid out but they were not paid out (see letters on pages 13 and 14 of bundle “A”).
14. Under cross-examination he confirmed that only his claim for using his credit card was paid out. He could not explain on page 12 of the bundle how he arrived at R1800-00 cost in the second row. He stated in all his transport claims, he used R4.50 per km as the cost besides his diesel that he already received. He neither could explain loading of all groceries and paraphenelia of the camp to the amount of R12 000-00. The Applicant stated that the groceries were heavy and that was the reason of claim of R12 000-00. He also could not properly explained the amount of R5000-00 for supervising of children and how it compared with the amount of R8 600-00 for supervising of the learners in the evening and during studies. He confirmed that he receive his normal salary for the duration of the camp.
15. He stated that the R4.50 per km was verbally agreed with the Principal and the SGB, but he has no written proof of it. It was put to him under cross-examination that the reason he and the other applicant left the accommodation was that they were staying together in Wepener and arranged other accommodation in Bloemfontein, as there were accommodation arranged for them. He denied it and stated that they had no accommodation and had to arrange their own accommodation.
16. Under re-examination he stated that he expected to be paid what others teachers were paid. He agreed that he never knew how to correctly calculate the cost he incurred during the camp. His representative asked that he may recalculate his cost and to submit it during the continuation of the arbitration.
The second Applicant, ME Mathibe, Post Level 1 Educator, after having been sworn in, testified
as follows:
17. She was employed as a Post Level 1 Educator at the Qibing Secondary School for more than 20 years. Prior to the camp in Bloemfontein for the preparation of the Grade 12 learners for the final examination, the Principal and the teachers had two meetings to plan and arrange the camp. She got involved as the Principal of the School asked her to assist in this camp. The budget for food and other expenses was according to her agreed verbally with the Governing Body as R50 000-00 and they later added an additional R15 000-00.
18. On arrival for the camp on the 14th of October 2018, she realised that the accommodation at Plot 1 in Bloemfontein was not enough. The boys were 47 and the ladies 52. She was supposed to sleep in the room next to the kitchen and she ended up having no accommodation, as the parents occupied the other rooms. She was then asked to look for alternative accommodation herself. She opted to use accommodation in Bloemfontein.
19. One of her responsibilities at the camp was to supervise in the kitchen and to ensure that the learners were provided with food, and she further assisted the learners with their studies. Before the completion of the camp on a Sunday, the SGB and the Financial Clerk arrived at the camp. Herself, the first applicant, SGB member and others were responsible for the camp. The National Senior certificate examinations time table appears on page 24 to 26 of bundle “A”, and it represented the preparation for the final Grade 12 exams. On page 21 of the same bundle appears the time table for the classes at Plot I, and page 22 represents the attendance registers for the studies. The draft menu for the camp per week appears on page 20.
20. On page 14 of bundle “A” appears her request dated the 3rd of May 2019, for payment for attending the matric camp from the 14th of October to the 26th of November 2018. It states as follow: “I was called in the presence of the financial clerk and Acting Principal (Mr Galawa) and requested to supervise the kitchen at the camp, teaching the learners in preparation towards their exams when writing my subject (3 papers), supervising the studies during the day and in the evening, invigilation and going to the markets almost every day for fresh veggies and fruits and groceries for 100 learners and seeing to it that there was a smooth running of the camp for 43 consecutive days including weekends”. The transport of the first applicant was used to buy the groceries.
21. The storage facilities for groceries was not big enough as there was a small room available for it. She was supervising the four ladies in the kitchen and that continued for the duration of the camp. She confirmed that she was asked by the Principal to seek alternative accommodation. Only other staff members and parents were paid for their contributions at the camp.
22. She was driving at the stage of the camp a Mercedes Benz 320, class A, 6 cylinder vehicle and the rate can be seen on page 24 of the new handed in document “A1”, that she should have been paid 627.01 cent per kilometre. The annual revision of subsistence and camping allowance of Circular No 2 of 2018 of PSCBC Resolution 3 of 1999 indicates that the fixed daily subsistence allowance payable in circumstances where actual expenses are not claim, as from the 1st of April 2018 amounted to R416-00. On page 27 to 28 appears the income and expenses for August 2018 up to November 2018.
23. On page 31 of bundle “A1” it states in 3.2 that; “If an employee must take an official journey that last for 24 hours or longer, for each day or part of a day on the journey, she or he may claim either; (a) Reasonable actual expenditure on accommodation plus an allowance a day; or (b) An allowance of R121-50 a day”. This happened for 43 days with abnormal hours worked and she was not reimbursed. Her house is in Wepener and she had to stay in Bloemfontein for 43 days during the matric camp. According to point 4 under separation allowance on page 32 of bundle “A1” it states: “The employer shall pay an eligible employee a separation allowance if the employee must travel on official duties away from her/his normal place of work for an uninterrupted period of over 15 days”. The separation allowance amounted to R10-63 per day.
24. She also qualify for subsistence allowance as can be seen on page 29 of bundle “A1”. EFT payment was made on the 26th of November 2018 for camp transport to the amount of R2050.00. A second payment for the camp on the 8th of November 2018 for R840-00 for invigilation, as well as for groceries on the 14th of November 2018 amounted to R15 000-00. A second payment for groceries amounted to R6000-00 on the 26th of November 2018. The second applicant was not paid anything and not the amounts paid by for the other ladies. The first applicant was given transport money and using his card for buying groceries. Her colleague (lady) was paid for invigilation and transport money. The three ladies who worked in the kitchen during the camp were paid R6 000-00, R3 000-00 and R3 000-00 respectively on the 26th of November 2018.
25. Under cross-examination she confirmed that the Principal gave her permission to attend the camp and he did it in his office in the presence of the Acting Principal. She was verbally instructed to go to the camp. When it was put to her that she was not given permission to go to the camp, she denied it as it is not the truth. It was further put to her that on page 24 of bundle “A1” it states that the Head of the Department must give permission and the person implemented the camp was not the Head of the Department, but it was instituted and financed by the SGB. She stated that she is not sure whether the permission for allowances lies with the HOD.
26. She was not aware that the first applicant was paid R2400-00 for transport for buying groceries during the camp. She also did not know about the tariff of R720-00 based on a single trip to Bloemfontein. She agreed that the SGB instructed this camp as the money for groceries was signed by the SGB member. It was put to her that she could not rely on documentation form the Department while the instruction came from the SGB. She admitted that the Principal was part of the SGB. She never attended in the past a matric preparation camp and she did not figure out how much she is going to be paid.
27. She confirmed that she wrote a letter to the Principal as can be seen on page 14 of bundle “A”, but she never received a response. She agreed that the people who were paid for attending the camp were appointed by the SGB. She expected to be paid R24720-00 by the School and the reason the amount increased to R32 029, was due to separation and accommodation cost. She was asked how did she get to the amount of supervising in the kitchen and she said that the other people in the kitchen were paid and she supervised them. She was not officially appointed as supervisor in writing, but she was verbally instructed.
28. Under re-examination she confirmed that her employer is the Department of Education and therefore she is working in the Public Service. She was instructed by the Principal to attend the camp and he is the accounting officer. She confirmed that other colleagues were paid for attending the camp and she was verbally instructed to look for additional accommodation.
Respondent’s evidence and argument
The first witness of the Respondent, Abel Matheatau, Principal, after having been sworn in, testified as follows:
29. He remained the Principal where he was appointed, but he assisted the Qibing Secondary School as they were not doing well. He was aware of the matric camp. The SGB made the decision to arrange the matric camp but he moved in as Principal and carefully assessed the proposal of the SGB. They finally made the decision to prepare the matric group in 2018 for the final matric examination after they took his advice into consideration.
30. He went to the SGB and the first applicant was acting and he was nominated, and he agreed to supervise the whole matric camp, as they needed somebody who was from Bloemfontein. He stated that the transport policy as mentioned, are resorting under the MSC for Education. He stated that people received close to R900-00 for exit to Bloemfontein for transport. He together with the SGB went to Bloemfontein and access the accommodation at Plot 1 in Bloemfontein. They were confident that the accommodation was sufficient and there were two rooms allocated for parents and educators who supervise. He never gave the instruction to any of the applicants to get their own accommodation as there was sufficient accommodation.
31. The decision of the SGB was that everyone who became part of the matric camp and those effected will be paid according the contract for the camp. They had to go back to the SGB to find out how the stipend was going to be paid. He was at the matric camp in Bloemfontein no less than three days a week. Nobody complained about accommodation or any other matter or about monies not been contracted for. In his career he run several such camps and this arranged camp was entirely a SGB matter.
32. Under cross-examination he agreed that he was running the office as Principal and Accounting Officer and it was not the only camp he managed. He put the details on the table for the matric camp. He did not appoint the first applicant as supervisor in writing. The first applicant was supposed to come back to negotiate. The witness was not at the camp all the time and he needed somebody there to be accountable for the supervision of the camp and then be paid what the SGB and school ordinary pay as prescribed in the policy. He handed the reigns over at the school at the end of the term in December 2018. He did not receive any letter from the second applicant. The camp was reasonably successful as one person was kicked out of centre due to drugs. He agreed that the correspondence of the two applicants to the School should have been addressed and acted upon.
33. He confirmed that the delegation to investigate the suitability of the site at Plot 1 consisted of himself, one of the SGB members, and other in the team. He used his own vehicle to go to Bloemfontein and he was not paid, but the SGB members were paid transport allowance. He was told that he said that the capacity at the site was 100, and 99 of them were learners. If he added the two applicants and five parents plus the one to two SGB members plus two teachers visiting the centre, then there was not enough accommodation. He agreed that one of the two rooms were allocated for the two applicants and the rest of the delegation and the security was also provided for. According to him the accommodation was sufficient and the other nine persons was accommodated. According to the witness there was no challenges for accommodation.
34. He further confirmed that there were meetings with the SGB, staff, parents and matric learners and the proof are available, but not part of the bundles handed in. He agreed that on the 26th of November 2018, other colleagues were paid and not the two applicants. He confirmed that they must be paid what is due to them and the SGB must define what is due to them.
35. The Personnel Administrative Measures (PAM) states on page 9 of bundle “A” in clause E2.3.1 that local subsistence and camping allowance must be paid. The witness said that he is aware of the PAM. Resolution No 3 of 1999 of the Public Service Co-ordinating Bargaining Council (Agreement on remunerative allowances and benefits) states on page 3 of bundle “A” in clause 1.1 under Official journeys that: “The employer may meet reasonable costs of travel for official purposes”. The witness responded that it falls under the authority of the MEC for Education and not the SGB as it was a school initiated program and the policies of the school is applicable.
36. He was further under cross-examination told that the applicants stayed for 43 days and point 4 on page 32 of bundle “A1” was again read to him. He then stated that the applicants qualify for separation allowances, but not in terms of the school policy and this camp was a SGB initiated camp. He said that he does not know everything about the policy of the school and he is not aware whether the policies were presented to the two applicants. He agreed that the Law will always supersede the policy but they are close to each other. He agreed that all other people involved were paid. He said for the purpose of the camp they were paid but not for additional allowances.
37. He again stated that none of the applicants raised a problem regarding accommodation and the supervisor (first applicant) was paid for transport to buy groceries with his vehicle. Under re-examination he confirmed that the Matric camp was 100% funded by the School as it was their decision to initiate the matric camp to prepare the learners for the final examination.
The second witness of the respondent, Alinah Moleko, SGB member, after having been sworn in, testified as follows:
38. She was aware of the matric camp that took place in 2018, and it was planned by the SGB. The matric camp was in totality funded by the SGB. They budgeted for an amount of R50 000-00 but it was later increased by R15 000-00. She indicated that the travelling cost from Wepener and back amounted to R660-00 and subsistence allowance of R60-00 per day was paid. The travelling cost was calculated at R3-00 per kilometer. Everybody who traveled outside Wepener for work purposes of the camp would have received it.
39. She testified that she was a volunteer who slept for 43 days on Plot 1 in Bloemfontein. There was enough accommodation on the site and the boys slept in the rooms outside the main building and the girls inside the building. After everybody were accommodated there was one room empty and the owner used it. The two applicants did not sleep on the site and they arranged their own accommodation. She was referred to page 1 of bundle “R” and R600-90 was paid to R & B Motors for fuel for the first applicant. She explained the he was given every week about a R1 000-00 for fuel money, for buying groceries for the matric camp.
40. The applicants only used one vehicle to drive from Wepener to Bloemfontein as they were staying together in Wepener and Bloemfontein. She was further referred to page 10 of bundle “R”, and she indicated that it represents the slips for food bought at Metro Food Market on the 27th of October 2018 by the first applicant. He used his own card to pay and claimed it back. However there were items on the slips that were not food for the matric camp, like dragon energy blue berry drinks and two tins of shield roll on for men.
41. Under cross-examination, she confirmed that she became a member of the SGB in 2017 before the matric camp started. She could not remember the number of meetings the SGB had before the camp, but they indeed met before the camp. The owner took the empty room back after a few days from their arrival. She was not aware of the arrangements the two applicants made regarding their accommodation. She confirmed the number of matric learners as 100 and there were parents and two educators which were the applicants. She confirmed that there were accommodation for all of them at plot 1.
42. She further stated that there were four in a room depending on the size of the rooms. The biggest room could take eighteen and the smallest room two. She said the total cost of the matric camp was over R200 000-00. She and the second applicant travelled with the first applicants to the shops to buy shorts on the groceries. She always prepared a list of groceries needed to be bought for the first applicant. He indicated before the camp started that he would be available to go and buy groceries when needed during the camp. The places where they bought the groceries were 4 and 9 kilometers away from the camp.
43. She stated that she is not aware whether the Principal attended the camp on occasions and the travel allowance from Wepener to Bloemfontein was R660-00. She was paid R3000-00 as a thank you and it was not worked out on the R60-00 daily allowance. There was an intention to pay the applicants and that was why the SGB offered the two applicants R60-00 per day for 43 days. She was not aware of any letter that the second applicant sent to the Principal, as it was not discussed during the SGB meetings. She admitted that the Principal is part of the SGB. She is not aware of the clauses of the policy of the SGB regarding the rates for S&T payments, but the other teachers received the same amount that was offered to the two applicants meaning R60-00 per day.
Closing arguments
44. Both the representatives of the applicants and the respondents sent written closing arguments not by the 13th of September 2021, but only by the 15th of September 2021, as agreed on 06 September 2021. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.
Analysis of evidence and argument
45. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
46. The representative of the applicants submitted on the 30th of August 2021 a summary of the costs claimed by the two applicants. The second applicant, ME Mathibe, claims cost as follow: (1) Transport from Qibing secondary school to plot 1 at 115 km x 2 x 627.1 sent = R1 442-33; (2) Daily allowance at a rate of R416-00 per day x 43 days amounting to R17 888-00; (3) Preparation of paper/teaching the revision classes x 2 papers administered to 3 classes at R250-00 equals R1500-00; (4) Supervision of the kitchen staff at R250-00 per day x 43 days equals R10 750-00; (5) Separation allowance of R10-63 x 43 days amounted to R457-09. The total amount she claimed is R31 737-42. The first applicant, GRC Nthlaile claims cost as follow: (1) Transport from Qibing Secondary School, 115km x 2 x 516.7 sent = R`1158-80; (2) Daily allowance at a rate of R416-00 per day x 43 days amounted to R17 888-00; (3) Preparation of paper/teaching, I paper and 2 classes at R250-00 each equals R750-00; (4) Managing the Camp at R200-00 x 43 days equals R8 600-00; (5) Separation allowance of R10-63 x 43 days amounted to R457-09. The total amount he claimed is R28 551.89.
47. In this arbitration, I am firstly going to refer to the Personnel Administration Measure (PAM). The PAM refers certain benefits to Resolution 3 of 1999 as indicated. Resolution No 3 of 1999 of the Public Service Co-ordinating Bargaining Council (Agreement on remunerative allowances and benefits) states that in the event that an employee uses his or her private transport to carry out the duties, the employer provide an allowance to cover actual expenditure, compensate the employee according to tariffs prescribed by the Department of Transport. Paragraph 3 of chapter XII of the Resolution 3 of 1999 referred to compensation for accommodation during official journey, as well as separation allowance. Benefits regarding duties performed in respect of the public examination and supervision are contained in the PAM.
48. The Panellist is expected to determine whether the first and second respondents, together and separately, committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA, by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation Camp. The Camp took place in Bloemfontein during the period of the 14th of October 2018 until the 26th of November 2018. Fairness requires an evaluation that is multidimensional. The fairness required in determination of an unfair labour practice must be fairness against both applicants and respondents.
49. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicants must prove not only the existence of the labour practice, but also that it is unfair. They must do more than just demonstrate that they were not pay certain allowances in 2018 during the matric camp. It depends upon the circumstances of a particular case and essentially involves a value judgement.
50. In Aucamp v SARS (JS 844/2011) [2013] ZALCJHB 266; [2014] 2 BLLR 152 (LC) (2014) 35 ILJ 1217 (CC) the Court held that remuneration as contemplated by law requires payment to the employee to be a quid pro quo for the employee actually working. Therefore, if the benefit is not a guaranteed contractual right per se, the employee could still claim the same on the basis of an unfair labour practice if the employee can show that the employee was unfairly deprived of the same.
51. It is the submission of the representative of the applicants that both applicants are employed by the Department of Education and both were on official business of both respondents. They were both responsible for the day to day running of the matric examination camp that was held at Plot 1, next to the Bram Fisher Airport. According to the representative, this dispute is a right dispute as the allowances are in place as a result of a collective agreement, Resolution 3 of 1999, which is binding to both employer and employees. It is common cause that the applicants had provided their labour to the employer out of town on an official journey. These claims are categorised into two groups, those that are covered by the collective agreement and those that are payable by the Personnel Administrative Measure (PAM). The dispute is as a result of non-payment by both respondents of allowances due to the applicants.
52. It is his further submission that the benefits that the applicants are claiming from the respondents are already agreed upon collectively through Resolution 3 of 1999. It would defeat the efforts that were taken in drafting and eventually agreeing in a collective forum to the final draft of a collective agreement and the respondents elect to unilaterally amend it only for the applicants. The applicants do qualify for these benefits as agreed upon collectively and stated in the PAM document. Both respondents does not dispute the fact that the Matric examination camp was an official journey and service. It is clear that the respondents cannot rely on SGB policies, whereas there is a collective agreement in place.
53. The witnesses of the respondents both stated that they were aware of the Matric camp that took place in 2018 and it was initiated and planned by the SGB. The Matric camp was in totality funded by the SGB. Neither the two witnesses not the representative of the respondents could provide the SGB Policy regarding transport and subsistence allowances. There was also contradictions regarding the amounts to be paid for transport and other allowances. Neither was documentation over this period presented by the representative of the respondents. As the second respondent was joined, the first and second respondents are together and separately responsible for the payment of the correct allowances.
54. The representative of the applicants submits that in the case of Schombee and Others v MEC of Education Mpumalanga the issue of financial accountability of the school was raised. The question was raised whether the principal or the SGB should be held accountable for management of the school funds. It was further decided that the SGB is accountable to the parents for the efficient and effective management of school funds and may delegate certain functions to the Principal who is accountable to the SGB. In this matter the Principal was instructed by the SGB to inform/ask the applicants whether they will be part of the camp or not and they agreed to be part of the camp. The Principal, Mr Matheatau, indicated that there was space for the two applicants to sleep at the camp and he had never had a complaint from the two applicants about accommodation.
55. The first witness of the respondents agreed that on the 26th of November 2018, other colleagues were paid and not the two applicants. He confirmed that they must be paid what is due to them and the SGB must define what is due to them. He also agreed that the Law will always supersede the policy but they are close to each other.
56. The applicants testified, that due to space, they gave their rooms to learners at the Matric examination camp and they informed the Principal, and this was disputed by the first witness of the respondent. If however, the Principal visited the camp three times in a week, he would have note that the landlord has taken accommodation at the camp and there were two vacant rooms, and he enquired about the vacant rooms. According to the representative of the applicants, the Principal testified that there was no need for the first applicant, Mr Ntlaile, to buy every day the needs of the camp as they made arrangements for deliveries. This testimony was contradicted by the respondents’ second witness when she testified that the arrangements were made but failed to materialise. This was denied by the first witness of the respondents when he testified that he and the SGB were confident that the accommodation was sufficient and there were two rooms allocated for parents and educators who supervise. He never gave the instruction to any of the applicants to get their own accommodation as there was sufficient accommodation. He also did not receive any complaint from the two applicants regarding communication. According to him the accommodation was sufficient and the other nine persons were accommodated. According to the witness there was no challenges for accommodation. I therefore find that the daily allowance claim is not supposed to be paid.
57. It is clear from documentation in bundle “A1” that transport money of R760-00 was paid to other people who attended the Camp as well as an allowance to the four people who helped in the kitchens to the amount ranging between R3 000-00 to R6 000-00. Other teachers who visited the Camp was also paid transport allowance and for the preparation and presenting of matric classes. The three ladies who worked in the kitchen during the camp were paid R6 000-00, R3 000-00 and R3 000-00 respectively on the 26th of November 2018.
58. Dibuseng Alinah Moleko indicated that she is a member of the SGB and one of the parents who were chosen to assist with preparation of the camp. She testified that they were given two cheques to the value of R65 000.00 by the SGB to run the camp and there was an empty room at the camp, which was reserved for the applicants as they were living partners in Wepener, but because both of them were from Bloemfontein, they decided to go and sleep at their respective places and they were using a single car to ferry them between their residence and the plot or the camp. She further indicated that the distance between the areas were they bought extra food and the plot is +/- 4 KM and the Diesel that was poured into the vehicle of Mr Ntlhaile, the first Applicant was +/- R10 000,00 for the period of 43 days.
59. The witness further indicated that in terms of the School S & T (Subsistence and Transport) allowance of the school a single kilometre was R3-00 and subsistence allowance was R60-00 per day, which they have agreed that they are prepared to pay to the two applicants for the duration of their stay at the camp. It is the submission of the representative of the respondent that the application on the basis that their claim is not based on the correct documents be rejected. They should have followed the SGB policy on S & T allowances.
60. There are two sets of rules. PAM is applicable between the employment relationship between the Department of Education and its employees, Both applicants are employed by the Department of Education and therefore PAM is applicable and not the Policies of the SGB. Any remuneration agreements is not binding on the SGB as the SGB is not the employer. Obviously the situation is totally different with SGB employees. In the absence of the policies I decide that PAM is applicable.
61. I accept that the applicants visited a matric preparation camp and was for 43 days in this camp by agreement with the SGB. They both did not discuss the form of compensation with the SGB when they committed to the 43 days away from the Qibing Secondary School.
62. I therefore believe that it is fair to pay reasonable expenses to the applicants like transport, preparation of papers and teaching of it, and supervisory costs, as well as transport not paid to the first applicant for fuel when he visited the shops to buy groceries for the camp. I also find that there was enough accommodation for the two applicants at Plot 1, but when they decided to find alternative accommodation on their own, they were responsible for their own costs and the daily allowance cannot be paid to them. I also find that there is no need to pay separation allowance as they voluntary agreed to assist at the Matric Preparation Camp. I further find that the second applicant, ME Mathibe, must not be paid traveling allowance as they drove together to Bloemfontein in the vehicle of the first applicant, GRC Nthlaile.
63. The applicants bears the onus of proving the claim on a balance of probabilities. The applicants must prove not only the existence of the labour practice, but also that it is unfair. I find that the procedure followed by the Department of Education and the SGB was not fair and that an unfair labour practice was committed by the respondents by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation Camp. The Camp took place in Bloemfontein during the period of the 14th of October 2018 until the 26th of November 2018. The cost allocated will be paid according to the Personnel Administration Measure (PAM). The PAM refers to certain benefits to Resolution 3 of 1999 as indicated. Resolution No 3 of 1999 of the Public Service Coordinating Bargaining Council (Agreement on remunerative allowances and benefits), is also applicable.
64. The following cost must be paid to the two applicants: The second applicant, ME Mathibe, as follow: (1) Preparation of paper/teaching the revision classes x 2 papers administered to 3 classes at R250-00 equals R1500-00; (2) Supervision of the kitchen staff at R250-00 per day x 43 days equals R10 750-00; The total amount she must be paid is R12 250-00. The first applicant, GRC Nthlaile as follow: (1) Transport from Qibing Secondary School to Bloemfontein, 115 km x 2 x 516.7 sent = R`1158-80; (2) Preparation of paper/teaching, I paper and 2 classes at R250-00 each equals R750-00; (3) Managing the Camp at R200-00 per day x 43 days equals R8 600-00; The total amount payable to the first applicant is R10 508-80.
65. The ELRC has no jurisdiction over government bodies. The applicants are employed by the Department of Education and if they want to obtain financial relief against the SGB, they must sue the SGB in the civil courts.
66. In light of the above I make the following award.
AWARD
67. The first and second respondents together did commit an unfair labour practice by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation Camp at Plot 1 in Bloemfontein in 2018.
68. The first respondent, Department of Education–Free State, is ordered to compensate the first applicant, GRC Mthlaile, to the amount of R10 508-80 (ten thousand five hundred and eight rand and eighty sent). The second applicant, ME Mathibe, must be compensated to the amount of R12 250-00 (twelve thousand two hundred and fifty rand)
69. The said amounts must be paid to the respective applicants by not later than the 25th of October 2021.
Signature:
Panelist: Gert van der Berg
Sector: Free State Department of Education
In the matter between
PSA obo Nthlaile, GRC and Mathibe, ME Applicant
and
Department of Education- Free state First Respondent
Qibing Secondary School Governing Body Second Respondent
PANELLIST: Dr. GC. Van Der Berg
Award: Finalized on 22 September 2021
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing took place on the 24th of January 2020 at the Qibing Secondary School in Wepener, the 31st of March 2020 (postponed due to Covid-19 lockdown) and on 30 August 2021 and the 6th of September 2021, via Zoom video conference. The proceedings were both digitally and manually recorded. The applicants, Nthlaile GRC and Mathibe ME, were represented by CRT Papo, an Official from PSA. The respondents, Department of Education-Free State and the Qibing Secondary School Governing Body (SGB) were represented by T Tsunke, form the Department of Education.
Issue to be decided
2. The applicants referred an unfair labour practice dispute regarding benefits in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended to the ELRC.
3. I am firstly required to determine whether or not the respondent committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation camp in Bloemfontein, during the period of the 14th of October 2018 until the 26th of November 2018.
4. In terms of appropriate relief in the event that I find that the respondents committed an ULP: (1) Allocate arrears of in lieu of benefits the total amount of R60 289-31 to both applicants together.
Background to the Dispute
5. The applicants are employed as teachers at the Qibing Secondary School. During September/October 2018 two meetings took place with the School Governing Body and it was agreed that R50 000-00 was budget for the expenses and all the arrangements were discussed and made for the Grade 12 preparation camp for the examination from the 14th of October 2018 up to the 26th of November 2018. The first applicant claimed that he was appointed as the Coordinator of this camp. He and the other applicant incurred addition cost which were claimed and not paid to them. According to them there was a verbal agreement that their cost and other allowances would be paid as the other teachers’ allowances were paid. This was denied by the respondents.
6. The applicants referred the dispute to ELRC within the 90 day prescribed period as the grievance lodged by them was only handled by the respondents during May 2019. The dispute was referred on the 12th of June 2019. The proceedings were set down for the 9th of July 2019. On the 24th of July 2019 the two cases were joined and the Qibing Secondary School Governing Body as second respondent on request of the applicants. The arbitration proceedings were set down for the 24th of January 2020. It was postponed due to the lockdown and eventually scheduled for the 30th of August 2021 and completed on the 6th of September 2021.
7. The parties did present opening statements on the 24th of January 2020 and the first applicant testified. Written closing statements was received on the 15th of September 2021(two days late), as agreed, on or before the 13th of September 2021. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
8. Both parties submitted bundles of documents. The bundle of the applicants was marked as “A” pages 1-26. The bundle of the respondents was marked as “R” pages 1-22. Both parties did not dispute the authenticity of the respective bundles. On 30 August 2021, the applicants handed in a second bundle of documentation and it was marked as “A1” pages 24 to 33 and contains documentation requested on the 24th of January 2020.
* As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The first Applicant, GRG Nthlaile, P1 teacher, after having been sworn in, testified as follows:
9. He was employed as a teacher at the Qibing Secondary School. Prior to the camp in Bloemfontein for the preparation of the Grade 12 learners for the final examination, the Principal and the teachers had two meetings to plan and arrange the camp. He was nominated to be in charge of the arrangements and the coordinating of the camp. The budget for food and other expenses, was according to him, agreed verbally with the SGB as R50 000-00. He was further told by the Principal that he must use his vehicle during the camp to deliver learners and to buy food from the 14th of October 2018 up to the 26th of November 2018, and he would be paid for it, which included the other applicant.
10. The accommodation was also arranged prior to the start of the camp. On arrival there was not enough accommodation for all the learners and the teachers in the hall. They managed to arrange another room but it was occupied by another supervisor and a teacher. He and the other applicant had no accommodation and they arranged their own accommodation at Turflaagte with a friend.
11. He explained that he used his vehicle during the camp and a summary of his tracker reports appears on page 12 of bundle “A”. He left the camp at 23:00 on a daily basis and returned at 05:00 in the morning to coordinate and arrange for the day’s food and teachings. The catering have been with the SGB which included the menu. He was paid for diesel but in addition he used his own vehicle to pick up bread and other groceries he bought. He used his own credit card but was reimbursed for it to the amount of between R5000-00 and R6000-00.
12. After the 26th of November 2019, the applicants put in a claim that can be seen on pages 11 to 12, and 15 to 16. His claim amounted to R34 001-00 and included transport cost for using his vehicle, loading of groceries for the camp and supervising children as well as examination preparation cost. It further included his cost of coordinating the camp. He requested the SGB to pay his claim. They said it was difficult to determine the exact cost. During cross examination it was stated by the representative of the respondent that receipts were requested from the applicants, but they could not provide any proof of costs incurred. The second applicant kept track of all the receipts of the food and groceries and an additional amount of R15 000-00 was allocated by the SGB.
13. On the 14th of April 2019, they wrote a letter for payment of their claim for the matric camp. They attached a detailed memorandum of the trips and duties. They were not paid out their claims and wrote a second letter on the 3rd of May 2019 to follow up on their claims. Other teachers were paid out but they were not paid out (see letters on pages 13 and 14 of bundle “A”).
14. Under cross-examination he confirmed that only his claim for using his credit card was paid out. He could not explain on page 12 of the bundle how he arrived at R1800-00 cost in the second row. He stated in all his transport claims, he used R4.50 per km as the cost besides his diesel that he already received. He neither could explain loading of all groceries and paraphenelia of the camp to the amount of R12 000-00. The Applicant stated that the groceries were heavy and that was the reason of claim of R12 000-00. He also could not properly explained the amount of R5000-00 for supervising of children and how it compared with the amount of R8 600-00 for supervising of the learners in the evening and during studies. He confirmed that he receive his normal salary for the duration of the camp.
15. He stated that the R4.50 per km was verbally agreed with the Principal and the SGB, but he has no written proof of it. It was put to him under cross-examination that the reason he and the other applicant left the accommodation was that they were staying together in Wepener and arranged other accommodation in Bloemfontein, as there were accommodation arranged for them. He denied it and stated that they had no accommodation and had to arrange their own accommodation.
16. Under re-examination he stated that he expected to be paid what others teachers were paid. He agreed that he never knew how to correctly calculate the cost he incurred during the camp. His representative asked that he may recalculate his cost and to submit it during the continuation of the arbitration.
The second Applicant, ME Mathibe, Post Level 1 Educator, after having been sworn in, testified
as follows:
17. She was employed as a Post Level 1 Educator at the Qibing Secondary School for more than 20 years. Prior to the camp in Bloemfontein for the preparation of the Grade 12 learners for the final examination, the Principal and the teachers had two meetings to plan and arrange the camp. She got involved as the Principal of the School asked her to assist in this camp. The budget for food and other expenses was according to her agreed verbally with the Governing Body as R50 000-00 and they later added an additional R15 000-00.
18. On arrival for the camp on the 14th of October 2018, she realised that the accommodation at Plot 1 in Bloemfontein was not enough. The boys were 47 and the ladies 52. She was supposed to sleep in the room next to the kitchen and she ended up having no accommodation, as the parents occupied the other rooms. She was then asked to look for alternative accommodation herself. She opted to use accommodation in Bloemfontein.
19. One of her responsibilities at the camp was to supervise in the kitchen and to ensure that the learners were provided with food, and she further assisted the learners with their studies. Before the completion of the camp on a Sunday, the SGB and the Financial Clerk arrived at the camp. Herself, the first applicant, SGB member and others were responsible for the camp. The National Senior certificate examinations time table appears on page 24 to 26 of bundle “A”, and it represented the preparation for the final Grade 12 exams. On page 21 of the same bundle appears the time table for the classes at Plot I, and page 22 represents the attendance registers for the studies. The draft menu for the camp per week appears on page 20.
20. On page 14 of bundle “A” appears her request dated the 3rd of May 2019, for payment for attending the matric camp from the 14th of October to the 26th of November 2018. It states as follow: “I was called in the presence of the financial clerk and Acting Principal (Mr Galawa) and requested to supervise the kitchen at the camp, teaching the learners in preparation towards their exams when writing my subject (3 papers), supervising the studies during the day and in the evening, invigilation and going to the markets almost every day for fresh veggies and fruits and groceries for 100 learners and seeing to it that there was a smooth running of the camp for 43 consecutive days including weekends”. The transport of the first applicant was used to buy the groceries.
21. The storage facilities for groceries was not big enough as there was a small room available for it. She was supervising the four ladies in the kitchen and that continued for the duration of the camp. She confirmed that she was asked by the Principal to seek alternative accommodation. Only other staff members and parents were paid for their contributions at the camp.
22. She was driving at the stage of the camp a Mercedes Benz 320, class A, 6 cylinder vehicle and the rate can be seen on page 24 of the new handed in document “A1”, that she should have been paid 627.01 cent per kilometre. The annual revision of subsistence and camping allowance of Circular No 2 of 2018 of PSCBC Resolution 3 of 1999 indicates that the fixed daily subsistence allowance payable in circumstances where actual expenses are not claim, as from the 1st of April 2018 amounted to R416-00. On page 27 to 28 appears the income and expenses for August 2018 up to November 2018.
23. On page 31 of bundle “A1” it states in 3.2 that; “If an employee must take an official journey that last for 24 hours or longer, for each day or part of a day on the journey, she or he may claim either; (a) Reasonable actual expenditure on accommodation plus an allowance a day; or (b) An allowance of R121-50 a day”. This happened for 43 days with abnormal hours worked and she was not reimbursed. Her house is in Wepener and she had to stay in Bloemfontein for 43 days during the matric camp. According to point 4 under separation allowance on page 32 of bundle “A1” it states: “The employer shall pay an eligible employee a separation allowance if the employee must travel on official duties away from her/his normal place of work for an uninterrupted period of over 15 days”. The separation allowance amounted to R10-63 per day.
24. She also qualify for subsistence allowance as can be seen on page 29 of bundle “A1”. EFT payment was made on the 26th of November 2018 for camp transport to the amount of R2050.00. A second payment for the camp on the 8th of November 2018 for R840-00 for invigilation, as well as for groceries on the 14th of November 2018 amounted to R15 000-00. A second payment for groceries amounted to R6000-00 on the 26th of November 2018. The second applicant was not paid anything and not the amounts paid by for the other ladies. The first applicant was given transport money and using his card for buying groceries. Her colleague (lady) was paid for invigilation and transport money. The three ladies who worked in the kitchen during the camp were paid R6 000-00, R3 000-00 and R3 000-00 respectively on the 26th of November 2018.
25. Under cross-examination she confirmed that the Principal gave her permission to attend the camp and he did it in his office in the presence of the Acting Principal. She was verbally instructed to go to the camp. When it was put to her that she was not given permission to go to the camp, she denied it as it is not the truth. It was further put to her that on page 24 of bundle “A1” it states that the Head of the Department must give permission and the person implemented the camp was not the Head of the Department, but it was instituted and financed by the SGB. She stated that she is not sure whether the permission for allowances lies with the HOD.
26. She was not aware that the first applicant was paid R2400-00 for transport for buying groceries during the camp. She also did not know about the tariff of R720-00 based on a single trip to Bloemfontein. She agreed that the SGB instructed this camp as the money for groceries was signed by the SGB member. It was put to her that she could not rely on documentation form the Department while the instruction came from the SGB. She admitted that the Principal was part of the SGB. She never attended in the past a matric preparation camp and she did not figure out how much she is going to be paid.
27. She confirmed that she wrote a letter to the Principal as can be seen on page 14 of bundle “A”, but she never received a response. She agreed that the people who were paid for attending the camp were appointed by the SGB. She expected to be paid R24720-00 by the School and the reason the amount increased to R32 029, was due to separation and accommodation cost. She was asked how did she get to the amount of supervising in the kitchen and she said that the other people in the kitchen were paid and she supervised them. She was not officially appointed as supervisor in writing, but she was verbally instructed.
28. Under re-examination she confirmed that her employer is the Department of Education and therefore she is working in the Public Service. She was instructed by the Principal to attend the camp and he is the accounting officer. She confirmed that other colleagues were paid for attending the camp and she was verbally instructed to look for additional accommodation.
Respondent’s evidence and argument
The first witness of the Respondent, Abel Matheatau, Principal, after having been sworn in, testified as follows:
29. He remained the Principal where he was appointed, but he assisted the Qibing Secondary School as they were not doing well. He was aware of the matric camp. The SGB made the decision to arrange the matric camp but he moved in as Principal and carefully assessed the proposal of the SGB. They finally made the decision to prepare the matric group in 2018 for the final matric examination after they took his advice into consideration.
30. He went to the SGB and the first applicant was acting and he was nominated, and he agreed to supervise the whole matric camp, as they needed somebody who was from Bloemfontein. He stated that the transport policy as mentioned, are resorting under the MSC for Education. He stated that people received close to R900-00 for exit to Bloemfontein for transport. He together with the SGB went to Bloemfontein and access the accommodation at Plot 1 in Bloemfontein. They were confident that the accommodation was sufficient and there were two rooms allocated for parents and educators who supervise. He never gave the instruction to any of the applicants to get their own accommodation as there was sufficient accommodation.
31. The decision of the SGB was that everyone who became part of the matric camp and those effected will be paid according the contract for the camp. They had to go back to the SGB to find out how the stipend was going to be paid. He was at the matric camp in Bloemfontein no less than three days a week. Nobody complained about accommodation or any other matter or about monies not been contracted for. In his career he run several such camps and this arranged camp was entirely a SGB matter.
32. Under cross-examination he agreed that he was running the office as Principal and Accounting Officer and it was not the only camp he managed. He put the details on the table for the matric camp. He did not appoint the first applicant as supervisor in writing. The first applicant was supposed to come back to negotiate. The witness was not at the camp all the time and he needed somebody there to be accountable for the supervision of the camp and then be paid what the SGB and school ordinary pay as prescribed in the policy. He handed the reigns over at the school at the end of the term in December 2018. He did not receive any letter from the second applicant. The camp was reasonably successful as one person was kicked out of centre due to drugs. He agreed that the correspondence of the two applicants to the School should have been addressed and acted upon.
33. He confirmed that the delegation to investigate the suitability of the site at Plot 1 consisted of himself, one of the SGB members, and other in the team. He used his own vehicle to go to Bloemfontein and he was not paid, but the SGB members were paid transport allowance. He was told that he said that the capacity at the site was 100, and 99 of them were learners. If he added the two applicants and five parents plus the one to two SGB members plus two teachers visiting the centre, then there was not enough accommodation. He agreed that one of the two rooms were allocated for the two applicants and the rest of the delegation and the security was also provided for. According to him the accommodation was sufficient and the other nine persons was accommodated. According to the witness there was no challenges for accommodation.
34. He further confirmed that there were meetings with the SGB, staff, parents and matric learners and the proof are available, but not part of the bundles handed in. He agreed that on the 26th of November 2018, other colleagues were paid and not the two applicants. He confirmed that they must be paid what is due to them and the SGB must define what is due to them.
35. The Personnel Administrative Measures (PAM) states on page 9 of bundle “A” in clause E2.3.1 that local subsistence and camping allowance must be paid. The witness said that he is aware of the PAM. Resolution No 3 of 1999 of the Public Service Co-ordinating Bargaining Council (Agreement on remunerative allowances and benefits) states on page 3 of bundle “A” in clause 1.1 under Official journeys that: “The employer may meet reasonable costs of travel for official purposes”. The witness responded that it falls under the authority of the MEC for Education and not the SGB as it was a school initiated program and the policies of the school is applicable.
36. He was further under cross-examination told that the applicants stayed for 43 days and point 4 on page 32 of bundle “A1” was again read to him. He then stated that the applicants qualify for separation allowances, but not in terms of the school policy and this camp was a SGB initiated camp. He said that he does not know everything about the policy of the school and he is not aware whether the policies were presented to the two applicants. He agreed that the Law will always supersede the policy but they are close to each other. He agreed that all other people involved were paid. He said for the purpose of the camp they were paid but not for additional allowances.
37. He again stated that none of the applicants raised a problem regarding accommodation and the supervisor (first applicant) was paid for transport to buy groceries with his vehicle. Under re-examination he confirmed that the Matric camp was 100% funded by the School as it was their decision to initiate the matric camp to prepare the learners for the final examination.
The second witness of the respondent, Alinah Moleko, SGB member, after having been sworn in, testified as follows:
38. She was aware of the matric camp that took place in 2018, and it was planned by the SGB. The matric camp was in totality funded by the SGB. They budgeted for an amount of R50 000-00 but it was later increased by R15 000-00. She indicated that the travelling cost from Wepener and back amounted to R660-00 and subsistence allowance of R60-00 per day was paid. The travelling cost was calculated at R3-00 per kilometer. Everybody who traveled outside Wepener for work purposes of the camp would have received it.
39. She testified that she was a volunteer who slept for 43 days on Plot 1 in Bloemfontein. There was enough accommodation on the site and the boys slept in the rooms outside the main building and the girls inside the building. After everybody were accommodated there was one room empty and the owner used it. The two applicants did not sleep on the site and they arranged their own accommodation. She was referred to page 1 of bundle “R” and R600-90 was paid to R & B Motors for fuel for the first applicant. She explained the he was given every week about a R1 000-00 for fuel money, for buying groceries for the matric camp.
40. The applicants only used one vehicle to drive from Wepener to Bloemfontein as they were staying together in Wepener and Bloemfontein. She was further referred to page 10 of bundle “R”, and she indicated that it represents the slips for food bought at Metro Food Market on the 27th of October 2018 by the first applicant. He used his own card to pay and claimed it back. However there were items on the slips that were not food for the matric camp, like dragon energy blue berry drinks and two tins of shield roll on for men.
41. Under cross-examination, she confirmed that she became a member of the SGB in 2017 before the matric camp started. She could not remember the number of meetings the SGB had before the camp, but they indeed met before the camp. The owner took the empty room back after a few days from their arrival. She was not aware of the arrangements the two applicants made regarding their accommodation. She confirmed the number of matric learners as 100 and there were parents and two educators which were the applicants. She confirmed that there were accommodation for all of them at plot 1.
42. She further stated that there were four in a room depending on the size of the rooms. The biggest room could take eighteen and the smallest room two. She said the total cost of the matric camp was over R200 000-00. She and the second applicant travelled with the first applicants to the shops to buy shorts on the groceries. She always prepared a list of groceries needed to be bought for the first applicant. He indicated before the camp started that he would be available to go and buy groceries when needed during the camp. The places where they bought the groceries were 4 and 9 kilometers away from the camp.
43. She stated that she is not aware whether the Principal attended the camp on occasions and the travel allowance from Wepener to Bloemfontein was R660-00. She was paid R3000-00 as a thank you and it was not worked out on the R60-00 daily allowance. There was an intention to pay the applicants and that was why the SGB offered the two applicants R60-00 per day for 43 days. She was not aware of any letter that the second applicant sent to the Principal, as it was not discussed during the SGB meetings. She admitted that the Principal is part of the SGB. She is not aware of the clauses of the policy of the SGB regarding the rates for S&T payments, but the other teachers received the same amount that was offered to the two applicants meaning R60-00 per day.
Closing arguments
44. Both the representatives of the applicants and the respondents sent written closing arguments not by the 13th of September 2021, but only by the 15th of September 2021, as agreed on 06 September 2021. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.
Analysis of evidence and argument
45. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
46. The representative of the applicants submitted on the 30th of August 2021 a summary of the costs claimed by the two applicants. The second applicant, ME Mathibe, claims cost as follow: (1) Transport from Qibing secondary school to plot 1 at 115 km x 2 x 627.1 sent = R1 442-33; (2) Daily allowance at a rate of R416-00 per day x 43 days amounting to R17 888-00; (3) Preparation of paper/teaching the revision classes x 2 papers administered to 3 classes at R250-00 equals R1500-00; (4) Supervision of the kitchen staff at R250-00 per day x 43 days equals R10 750-00; (5) Separation allowance of R10-63 x 43 days amounted to R457-09. The total amount she claimed is R31 737-42. The first applicant, GRC Nthlaile claims cost as follow: (1) Transport from Qibing Secondary School, 115km x 2 x 516.7 sent = R`1158-80; (2) Daily allowance at a rate of R416-00 per day x 43 days amounted to R17 888-00; (3) Preparation of paper/teaching, I paper and 2 classes at R250-00 each equals R750-00; (4) Managing the Camp at R200-00 x 43 days equals R8 600-00; (5) Separation allowance of R10-63 x 43 days amounted to R457-09. The total amount he claimed is R28 551.89.
47. In this arbitration, I am firstly going to refer to the Personnel Administration Measure (PAM). The PAM refers certain benefits to Resolution 3 of 1999 as indicated. Resolution No 3 of 1999 of the Public Service Co-ordinating Bargaining Council (Agreement on remunerative allowances and benefits) states that in the event that an employee uses his or her private transport to carry out the duties, the employer provide an allowance to cover actual expenditure, compensate the employee according to tariffs prescribed by the Department of Transport. Paragraph 3 of chapter XII of the Resolution 3 of 1999 referred to compensation for accommodation during official journey, as well as separation allowance. Benefits regarding duties performed in respect of the public examination and supervision are contained in the PAM.
48. The Panellist is expected to determine whether the first and second respondents, together and separately, committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186 (2)(a) of the LRA, by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation Camp. The Camp took place in Bloemfontein during the period of the 14th of October 2018 until the 26th of November 2018. Fairness requires an evaluation that is multidimensional. The fairness required in determination of an unfair labour practice must be fairness against both applicants and respondents.
49. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicants must prove not only the existence of the labour practice, but also that it is unfair. They must do more than just demonstrate that they were not pay certain allowances in 2018 during the matric camp. It depends upon the circumstances of a particular case and essentially involves a value judgement.
50. In Aucamp v SARS (JS 844/2011) [2013] ZALCJHB 266; [2014] 2 BLLR 152 (LC) (2014) 35 ILJ 1217 (CC) the Court held that remuneration as contemplated by law requires payment to the employee to be a quid pro quo for the employee actually working. Therefore, if the benefit is not a guaranteed contractual right per se, the employee could still claim the same on the basis of an unfair labour practice if the employee can show that the employee was unfairly deprived of the same.
51. It is the submission of the representative of the applicants that both applicants are employed by the Department of Education and both were on official business of both respondents. They were both responsible for the day to day running of the matric examination camp that was held at Plot 1, next to the Bram Fisher Airport. According to the representative, this dispute is a right dispute as the allowances are in place as a result of a collective agreement, Resolution 3 of 1999, which is binding to both employer and employees. It is common cause that the applicants had provided their labour to the employer out of town on an official journey. These claims are categorised into two groups, those that are covered by the collective agreement and those that are payable by the Personnel Administrative Measure (PAM). The dispute is as a result of non-payment by both respondents of allowances due to the applicants.
52. It is his further submission that the benefits that the applicants are claiming from the respondents are already agreed upon collectively through Resolution 3 of 1999. It would defeat the efforts that were taken in drafting and eventually agreeing in a collective forum to the final draft of a collective agreement and the respondents elect to unilaterally amend it only for the applicants. The applicants do qualify for these benefits as agreed upon collectively and stated in the PAM document. Both respondents does not dispute the fact that the Matric examination camp was an official journey and service. It is clear that the respondents cannot rely on SGB policies, whereas there is a collective agreement in place.
53. The witnesses of the respondents both stated that they were aware of the Matric camp that took place in 2018 and it was initiated and planned by the SGB. The Matric camp was in totality funded by the SGB. Neither the two witnesses not the representative of the respondents could provide the SGB Policy regarding transport and subsistence allowances. There was also contradictions regarding the amounts to be paid for transport and other allowances. Neither was documentation over this period presented by the representative of the respondents. As the second respondent was joined, the first and second respondents are together and separately responsible for the payment of the correct allowances.
54. The representative of the applicants submits that in the case of Schombee and Others v MEC of Education Mpumalanga the issue of financial accountability of the school was raised. The question was raised whether the principal or the SGB should be held accountable for management of the school funds. It was further decided that the SGB is accountable to the parents for the efficient and effective management of school funds and may delegate certain functions to the Principal who is accountable to the SGB. In this matter the Principal was instructed by the SGB to inform/ask the applicants whether they will be part of the camp or not and they agreed to be part of the camp. The Principal, Mr Matheatau, indicated that there was space for the two applicants to sleep at the camp and he had never had a complaint from the two applicants about accommodation.
55. The first witness of the respondents agreed that on the 26th of November 2018, other colleagues were paid and not the two applicants. He confirmed that they must be paid what is due to them and the SGB must define what is due to them. He also agreed that the Law will always supersede the policy but they are close to each other.
56. The applicants testified, that due to space, they gave their rooms to learners at the Matric examination camp and they informed the Principal, and this was disputed by the first witness of the respondent. If however, the Principal visited the camp three times in a week, he would have note that the landlord has taken accommodation at the camp and there were two vacant rooms, and he enquired about the vacant rooms. According to the representative of the applicants, the Principal testified that there was no need for the first applicant, Mr Ntlaile, to buy every day the needs of the camp as they made arrangements for deliveries. This testimony was contradicted by the respondents’ second witness when she testified that the arrangements were made but failed to materialise. This was denied by the first witness of the respondents when he testified that he and the SGB were confident that the accommodation was sufficient and there were two rooms allocated for parents and educators who supervise. He never gave the instruction to any of the applicants to get their own accommodation as there was sufficient accommodation. He also did not receive any complaint from the two applicants regarding communication. According to him the accommodation was sufficient and the other nine persons were accommodated. According to the witness there was no challenges for accommodation. I therefore find that the daily allowance claim is not supposed to be paid.
57. It is clear from documentation in bundle “A1” that transport money of R760-00 was paid to other people who attended the Camp as well as an allowance to the four people who helped in the kitchens to the amount ranging between R3 000-00 to R6 000-00. Other teachers who visited the Camp was also paid transport allowance and for the preparation and presenting of matric classes. The three ladies who worked in the kitchen during the camp were paid R6 000-00, R3 000-00 and R3 000-00 respectively on the 26th of November 2018.
58. Dibuseng Alinah Moleko indicated that she is a member of the SGB and one of the parents who were chosen to assist with preparation of the camp. She testified that they were given two cheques to the value of R65 000.00 by the SGB to run the camp and there was an empty room at the camp, which was reserved for the applicants as they were living partners in Wepener, but because both of them were from Bloemfontein, they decided to go and sleep at their respective places and they were using a single car to ferry them between their residence and the plot or the camp. She further indicated that the distance between the areas were they bought extra food and the plot is +/- 4 KM and the Diesel that was poured into the vehicle of Mr Ntlhaile, the first Applicant was +/- R10 000,00 for the period of 43 days.
59. The witness further indicated that in terms of the School S & T (Subsistence and Transport) allowance of the school a single kilometre was R3-00 and subsistence allowance was R60-00 per day, which they have agreed that they are prepared to pay to the two applicants for the duration of their stay at the camp. It is the submission of the representative of the respondent that the application on the basis that their claim is not based on the correct documents be rejected. They should have followed the SGB policy on S & T allowances.
60. There are two sets of rules. PAM is applicable between the employment relationship between the Department of Education and its employees, Both applicants are employed by the Department of Education and therefore PAM is applicable and not the Policies of the SGB. Any remuneration agreements is not binding on the SGB as the SGB is not the employer. Obviously the situation is totally different with SGB employees. In the absence of the policies I decide that PAM is applicable.
61. I accept that the applicants visited a matric preparation camp and was for 43 days in this camp by agreement with the SGB. They both did not discuss the form of compensation with the SGB when they committed to the 43 days away from the Qibing Secondary School.
62. I therefore believe that it is fair to pay reasonable expenses to the applicants like transport, preparation of papers and teaching of it, and supervisory costs, as well as transport not paid to the first applicant for fuel when he visited the shops to buy groceries for the camp. I also find that there was enough accommodation for the two applicants at Plot 1, but when they decided to find alternative accommodation on their own, they were responsible for their own costs and the daily allowance cannot be paid to them. I also find that there is no need to pay separation allowance as they voluntary agreed to assist at the Matric Preparation Camp. I further find that the second applicant, ME Mathibe, must not be paid traveling allowance as they drove together to Bloemfontein in the vehicle of the first applicant, GRC Nthlaile.
63. The applicants bears the onus of proving the claim on a balance of probabilities. The applicants must prove not only the existence of the labour practice, but also that it is unfair. I find that the procedure followed by the Department of Education and the SGB was not fair and that an unfair labour practice was committed by the respondents by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation Camp. The Camp took place in Bloemfontein during the period of the 14th of October 2018 until the 26th of November 2018. The cost allocated will be paid according to the Personnel Administration Measure (PAM). The PAM refers to certain benefits to Resolution 3 of 1999 as indicated. Resolution No 3 of 1999 of the Public Service Coordinating Bargaining Council (Agreement on remunerative allowances and benefits), is also applicable.
64. The following cost must be paid to the two applicants: The second applicant, ME Mathibe, as follow: (1) Preparation of paper/teaching the revision classes x 2 papers administered to 3 classes at R250-00 equals R1500-00; (2) Supervision of the kitchen staff at R250-00 per day x 43 days equals R10 750-00; The total amount she must be paid is R12 250-00. The first applicant, GRC Nthlaile as follow: (1) Transport from Qibing Secondary School to Bloemfontein, 115 km x 2 x 516.7 sent = R`1158-80; (2) Preparation of paper/teaching, I paper and 2 classes at R250-00 each equals R750-00; (3) Managing the Camp at R200-00 per day x 43 days equals R8 600-00; The total amount payable to the first applicant is R10 508-80.
65. The ELRC has no jurisdiction over government bodies. The applicants are employed by the Department of Education and if they want to obtain financial relief against the SGB, they must sue the SGB in the civil courts.
66. In light of the above I make the following award.
AWARD
67. The first and second respondents together did commit an unfair labour practice by not paying the allowances and costs incurred in lieu of benefits during a Grade 12 preparation Camp at Plot 1 in Bloemfontein in 2018.
68. The first respondent, Department of Education–Free State, is ordered to compensate the first applicant, GRC Mthlaile, to the amount of R10 508-80 (ten thousand five hundred and eight rand and eighty sent). The second applicant, ME Mathibe, must be compensated to the amount of R12 250-00 (twelve thousand two hundred and fifty rand)
69. The said amounts must be paid to the respective applicants by not later than the 25th of October 2021.
Signature:
Panelist: Gert van der Berg
Sector: Free State Department of Education