ELRC644-20/21 EC
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ELRC155-21/22FS
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Award Date:
27 October 2021
Panelist: Jonathan Gruss
Case No.: ELRC155-21/22FS
Date of Award: 27 October 2021
In the ARBITRATION between:
SAOU obo Lurita van Aswegen
(Union / Applicant)
and
Department of Education: Free State
(Respondent)
Applicant’s representative: Ms Human (SAOU)
Respondent’s representative: Mr Gubuza
Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits.
Short payment of service bonus as prescribed in terms of Clause E2.3.5 of the Personnel Administration Measures (PAM) read with PSCBC Resolution 3 of 1999 and 7 of 2000.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held via the Zoom platform on 30 July 2021. The proceedings were electronically recorded. The applicant, Lurita van Aswegen was represented by Ms Human from SAOU. The respondent, Department of Education: Free State was represented by Mr Gubuza, from the respondent’s Labour Relation Section.
ISSUE TO BE DECIDED
2. I am required to determine whether the benefit described in E.2.3.5 in the PAM document applies to the applicant and whether the respondent unfairly denied her access to the full benefit.
BACKGROUND
3. In terms of the pre-arbitration minute, as confirmed at the arbitration , the parties agreed that the following were accepted as common cause facts, namely:
3.1 The applicant was appointed by the Department of Education: Free State as from 1 January 2010. She was transferred to the Department of Education: Eastern Cape as at 1 January 2018.
3.2 As at 1 January 2020, the applicant was transferred from the Department of Education: Eastern Cape to the Department of Education: Free State.
3.3 The applicant has been employed continuously without a break in service since 1 January 2021.
3.4 The applicant qualifies for a service bonus (13th cheque) in October of every year.
3.5 The applicant was only paid half of her service bonus equivalent to have only worked for 6 months. Her monthly basic salary when the bonus was paid out to her was R25088.78.
.
SURVEY OF EVIDENCE
4. The Applicant testified under oath to the following effect.
4.1 She was transferred to the Department of Education: Eastern Cape. Whilst in the Eastern Cape, her husband who is also an educator received a promotion post in the Free State. She therefore applied for transfer to the Department of Education; Free State.
4.2 On 3 January 2020 she started teaching at a new school in the Free State. There was initially a problem with her salary but this was rectified on 1 April 2020 in that prior thereto, the Department of Education: Eastern Cape was paying her salary.
4.3 Her service bonuses are paid every year in October that is her birthday month. She was only paid R12544.39 as service bonus that equates to half (as if she had worked only for six months). She was therefore short paid in the amount of R12544.39. She made enquiries with her District Office.
4.4 Under cross-examination, she confirmed that she did complete an assumption of duty form when she reported for duty at her new school. The assumption of duty form was forwarded to the district office.
ANALYSIS OF EVIDENCE AND ARGUMENT
5. The dispute was referred in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
“Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”
6. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term 'benefit' to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer's discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.
7. Chapter E2.3.5 (Measures prescribed by legislation not administered by the Minister of Basic Education and Service Benefits which apply to all employees of the State) of the Personnel Administration Measures (PAM) refers to and thereby incorporates the provisions of PSCBC Resolution 3 of 1999 and 7 of 2000 that deals with service bonuses into the terms and conditions of employment of educators.
8. According to PSCBC Resolution 3 of 1999, as relates to eligibility, an employee shall receive a service bonus if she or he has a permanent contract or a fixed term contract lasting at least three months, unless the contract specifies otherwise, and in the year ending on her or his bonus date, does not resign or undergo discharge due to misconduct. The bonus date for an eligible employee born between April and December shall fall in the month of her or his birthday. The bonus date for an eligible employee born between January and March shall fall in April. The employer shall pay an employee his or her service bonus on the day the employer normally pays salaries in the relevant month. For the calculating of service bonus, the employer shall take into account continued employment in a state department, state or state aided school, or a statue body established by Parliament. If an eligible employee has worked for one year as at her bonus date, she or he shall receive a month’s salary subject to deduction for the GEPF. If an eligible employee has worked for part of a year as at the bonus date, she or he shall receive an equivalent part of her or his monthly salary after deduction for GEPF.
9. According to Clause 10 of PSCBC Resolution 7 of 2000 under the heading payment of birthday bonus, employees whose birthday fall between January and March of each year shall receive their 13th cheque on their birthday month and not in April of each year.
10. It is clear from the evidence and not in dispute that in terms of PAM, the payment of service bonuses to educators such as the applicant are obligatory.
11. The applicant argued that provincial spheres of government are interdependent and interrelated. Furthermore, all spheres Government must secure the well-being of the people of South Africa. In terms of Clause 41 (1)(h) of our Constitution it was argued that all spheres of Government must cooperate with each other, coordinate their actions and assist and support each other. The two provincial spheres according to the applicant worked together regarding her transfer and they are constitutionally responsibility to work together regarding the payment of benefits due to the applicant. Even though they seem to be different employers, and in a sense they are, they are deemed by the Constitution to be interrelated and interdependent and as such, Free State Department of Education should pay the applicant her full service bonus and claim it back from the Eastern Cape Department of Education.
12. Mr Gubuza, conceded that the applicant was entitled to be paid her full service bonus and that normally the portion of the period the applicant worked in the Department of Education: Eastern Cape would be claimed back from the Eastern Cape. The short payment of the service bonus was as a consequence to an administrative error. I must thank the respondent’s representative for his honesty and integrity in achieving an expedient resolution of the dispute.
13. I accordingly make the following award.
AWARD
14. The respondent, Department of Education: Free State perpetrated an unfair labour practice relating to benefits by not paying the applicant, Lurita van Aswegen her full service bonus in October 2020 in that they only paid her half of the service bonus.
15. The respondent is ordered to pay the applicant an amount of R12544.39 that equates to the short payment of her October 2020 service bonus.
16. The amount as referred in paragraph 15 above must be paid by no later than 30 November 2021.
Name: Jonathan Gruss
ELRC Arbitrator
Case No.: ELRC155-21/22FS
Date of Award: 27 October 2021
In the ARBITRATION between:
SAOU obo Lurita van Aswegen
(Union / Applicant)
and
Department of Education: Free State
(Respondent)
Applicant’s representative: Ms Human (SAOU)
Respondent’s representative: Mr Gubuza
Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits.
Short payment of service bonus as prescribed in terms of Clause E2.3.5 of the Personnel Administration Measures (PAM) read with PSCBC Resolution 3 of 1999 and 7 of 2000.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held via the Zoom platform on 30 July 2021. The proceedings were electronically recorded. The applicant, Lurita van Aswegen was represented by Ms Human from SAOU. The respondent, Department of Education: Free State was represented by Mr Gubuza, from the respondent’s Labour Relation Section.
ISSUE TO BE DECIDED
2. I am required to determine whether the benefit described in E.2.3.5 in the PAM document applies to the applicant and whether the respondent unfairly denied her access to the full benefit.
BACKGROUND
3. In terms of the pre-arbitration minute, as confirmed at the arbitration , the parties agreed that the following were accepted as common cause facts, namely:
3.1 The applicant was appointed by the Department of Education: Free State as from 1 January 2010. She was transferred to the Department of Education: Eastern Cape as at 1 January 2018.
3.2 As at 1 January 2020, the applicant was transferred from the Department of Education: Eastern Cape to the Department of Education: Free State.
3.3 The applicant has been employed continuously without a break in service since 1 January 2021.
3.4 The applicant qualifies for a service bonus (13th cheque) in October of every year.
3.5 The applicant was only paid half of her service bonus equivalent to have only worked for 6 months. Her monthly basic salary when the bonus was paid out to her was R25088.78.
.
SURVEY OF EVIDENCE
4. The Applicant testified under oath to the following effect.
4.1 She was transferred to the Department of Education: Eastern Cape. Whilst in the Eastern Cape, her husband who is also an educator received a promotion post in the Free State. She therefore applied for transfer to the Department of Education; Free State.
4.2 On 3 January 2020 she started teaching at a new school in the Free State. There was initially a problem with her salary but this was rectified on 1 April 2020 in that prior thereto, the Department of Education: Eastern Cape was paying her salary.
4.3 Her service bonuses are paid every year in October that is her birthday month. She was only paid R12544.39 as service bonus that equates to half (as if she had worked only for six months). She was therefore short paid in the amount of R12544.39. She made enquiries with her District Office.
4.4 Under cross-examination, she confirmed that she did complete an assumption of duty form when she reported for duty at her new school. The assumption of duty form was forwarded to the district office.
ANALYSIS OF EVIDENCE AND ARGUMENT
5. The dispute was referred in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
“Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”
6. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term 'benefit' to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer's discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.
7. Chapter E2.3.5 (Measures prescribed by legislation not administered by the Minister of Basic Education and Service Benefits which apply to all employees of the State) of the Personnel Administration Measures (PAM) refers to and thereby incorporates the provisions of PSCBC Resolution 3 of 1999 and 7 of 2000 that deals with service bonuses into the terms and conditions of employment of educators.
8. According to PSCBC Resolution 3 of 1999, as relates to eligibility, an employee shall receive a service bonus if she or he has a permanent contract or a fixed term contract lasting at least three months, unless the contract specifies otherwise, and in the year ending on her or his bonus date, does not resign or undergo discharge due to misconduct. The bonus date for an eligible employee born between April and December shall fall in the month of her or his birthday. The bonus date for an eligible employee born between January and March shall fall in April. The employer shall pay an employee his or her service bonus on the day the employer normally pays salaries in the relevant month. For the calculating of service bonus, the employer shall take into account continued employment in a state department, state or state aided school, or a statue body established by Parliament. If an eligible employee has worked for one year as at her bonus date, she or he shall receive a month’s salary subject to deduction for the GEPF. If an eligible employee has worked for part of a year as at the bonus date, she or he shall receive an equivalent part of her or his monthly salary after deduction for GEPF.
9. According to Clause 10 of PSCBC Resolution 7 of 2000 under the heading payment of birthday bonus, employees whose birthday fall between January and March of each year shall receive their 13th cheque on their birthday month and not in April of each year.
10. It is clear from the evidence and not in dispute that in terms of PAM, the payment of service bonuses to educators such as the applicant are obligatory.
11. The applicant argued that provincial spheres of government are interdependent and interrelated. Furthermore, all spheres Government must secure the well-being of the people of South Africa. In terms of Clause 41 (1)(h) of our Constitution it was argued that all spheres of Government must cooperate with each other, coordinate their actions and assist and support each other. The two provincial spheres according to the applicant worked together regarding her transfer and they are constitutionally responsibility to work together regarding the payment of benefits due to the applicant. Even though they seem to be different employers, and in a sense they are, they are deemed by the Constitution to be interrelated and interdependent and as such, Free State Department of Education should pay the applicant her full service bonus and claim it back from the Eastern Cape Department of Education.
12. Mr Gubuza, conceded that the applicant was entitled to be paid her full service bonus and that normally the portion of the period the applicant worked in the Department of Education: Eastern Cape would be claimed back from the Eastern Cape. The short payment of the service bonus was as a consequence to an administrative error. I must thank the respondent’s representative for his honesty and integrity in achieving an expedient resolution of the dispute.
13. I accordingly make the following award.
AWARD
14. The respondent, Department of Education: Free State perpetrated an unfair labour practice relating to benefits by not paying the applicant, Lurita van Aswegen her full service bonus in October 2020 in that they only paid her half of the service bonus.
15. The respondent is ordered to pay the applicant an amount of R12544.39 that equates to the short payment of her October 2020 service bonus.
16. The amount as referred in paragraph 15 above must be paid by no later than 30 November 2021.
Name: Jonathan Gruss
ELRC Arbitrator