ELRC644-20/21 EC
Text
ELRC81-21/22LP
Award Date:
09 November 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
Case No. ELRC81-21/22LP
Date: 09 November 2021
In the matter between
MMOLA FRANCINAH RAESEBE AND 15 OTHERS Applicants
And
LIMPOPO DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
Details of hearing and representation
1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place virtually on 29 September 2021 at 9:00AM. The applicants, Mmola R.F, Modiba M.S, Mnisi M.P, Maponya M.C, Mathaba M.N, Mahlo M.A, Magoro M.S, Maila M.M, Modiba M.S, Malepe D.D, Mametja M.C, Motloutsi M.B.D, Mafokwane M.R, Mabela F, Hlatshwayo P.S, Maponya M.F, and Sechube B.L were represented by Bianca Perry from Thomas and Swanepoel Attorneys, while the respondent, Limpopo Department of Education was represented by Matlou M.M, its official. The matter was decided on papers of records submitted by the parties.
Nature of the dispute
2. The dispute was about the applicants’ alleged unfair labour practice related to benefits. The applicants are alleging that the respondent failed to pay them Teacher Incentive (Rural Allowance) as provided for in terms of the Government Gazette 30678 and Personnel Administrative Measures (PAM) of 2016 effective from the date they became aware of the Respondent’s conduct. They became aware of their entitlement to the benefit on 04 February 2021. The applicants also contended that the respondent should compensate them in the form of a solatium for the unfair labour practice it committed against them.
Issues to be decided.
3. I must decide whether or not the applicants qualified for Teacher Incentive and whether or not they are entitled to compensation, over and above these Teacher Incentive If so, I must determine an appropriate relief.
Background to the dispute and common cause issues
4. The matter was scheduled for virtual arbitration hearing on 29 September 2021. During the arbitration hearing, the respondent conceded that the applicants qualify for Teacher Incentive. However, the date of effect would be the 1st of September 2021, the date on which the respondent approved the payment. The applicants contended that the date of payment should be effective from the date they became aware of the dispute, which is 04 February 2021. The parties then agreed for the matter to be decided on the papers of records. It was the agreement of the parties that the evidence in relation to the payment of solatium would be led by one of the applicants, Mmola Francinah Raesebe.
5. It is common cause that the applicants qualify for Teacher Incentive (Rural Allowance of R2 333.65 per month. All the applicants are employed as Educators at Malebalong Primary School situated at Bismarck Village, Makhutswa Circuit, Mopani District. The dispute arose on 04 February 2021.
Survey of the Applicants’ submission and argument
The applicants submitted that;
6. If the respondent could be allowed to pay the teacher Incentive on the date on which the Head of Department (HOD) approves, it will result in a severe injustice to the applicants. In this instance the respondent took seven (7) months to verify something that it could have verified in 2017. If permitted to do this the respondent would drag out future dispute of this nature to avoid or prolong payment of the incentive.
One witness of the applicants, Mmola Francinah Raesebe testified for the applicants under oath and in English that;
7. She was mandated by the other applicants to testify on their behalf. They choose to claim their Teacher Incentive effective from February 2021 instead of 2016 because they did not want to fight with the respondent. They felt sad, angry, and frustrated by what the respondent did in terms of not rectifying its database since 2016, which resulted in them not receiving their Teacher Incentive.
During cross examination, Mmola testified that they want to claim compensation because they were not treated fairly like other schools. They followed this issue since 2016, but what they are saying is that let the teacher incentive be paid effective from February 2021. They suffered prejudice because they were not getting their incentive since 2016.
Survey of the Respondent’s submission and argument
The respondent submitted that;
8. The respondent started with the verification of whether all the applicants qualify or not. The verification process was completed on 25 August 2021 and the approval to pay the applicants Teacher Incentive was obtained from the Head of Department on 02 September 2021. The respondent referred to Equity Aviation Services (Pty) Ltd v CCMA and others (2008) 29 ILJ 2507 (cc) where the court confirmed that reinstatement order is not necessarily retrospective and does not create an automatic right to any increases unless that right is founded on a contract of employment and Republican Press (Pty) Ltd v CEPPWAWU and others (2007) 28 ILJ 2503 (SCA) where the court showed that there is no right to retrospective payment for benefits except on a salary. The respondent did not commit any alleged unfair labour practice in relation to the non-payment of the rural incentive retrospectively.
9. In relation to the payment of compensation over and above the payment of Teacher Incentive, the respondent did not lead any evidence, but submitted that the witness never testified about the compensation, nor any prejudice suffered because of non- payment of the incentive. There were never any reputational damage and or any attack on the applicants’ human dignity. The respondent referred to a case of the Minister for Justice and Constitutional Development v Tshishonga 2009 9 BLLR 862 (LAC) where the court added that in case of solatium ‘’the award is, subject to one exception of non-patrimonial nature, and is in satisfaction of the person who has suffered an attack on their dignity and reputation or an onslaught on their humanity’’
Analysis of the submissions and arguments
10. It is common cause that the applicants qualify for Teacher Incentive (Rural Allowance of R2 333.65 per month. It is again common cause that the dispute arose on 04 February 2021. The applicants are challenging the date of effect of the payment of the Teacher Incentive. The respondent claimed to effect the payment effective from 01 September 2021. The applicants also claimed to be compensated for the alleged unfair conduct of the respondent in terms of not paying the Teacher Incentive since 2016.
11. In terms of the submission of the respondent, it should be allowed to effect the payment of Teacher Incentive after the conduction of the verification and approval of the Head of Department. I believe that if this is allowed, it will prejudice the Educators who qualify for the Teacher Incentive, because the respondent may hide behind the verification process in circumventing the payment as from the date the Educators qualify. In this matter the applicants referred the dispute on 28 April 2021 and the respondent took four months to verify whether the applicants qualify or not. I am not convinced by the submission of the respondent that it must pay the Teachers Incentive on the month the Head of Department gives approval, September 2021. The respondent was supposed to have compiled a list of all Teachers Incentive qualifying schools and Educators long time ago during the implementing stage of the Government Gazette on Teachers Incentive. Since it is common cause that the dispute arose on 04 February 2021 and the applicants are also claiming their Teachers Incentive from the month of February 2021, I find it to be fair for the respondent to pay the applicants Teachers Incentive with effect from the month February 2021.
12 In relation to the payment of compensation, the applicants went further to lead evidence of one witness, Mmola Francinah. The witness never testified about the prejudice they suffered because of the failure by the respondent to pay them Teachers Incentive during her evidence in chief. It was only during cross examination that Mmola testified that the applicants suffered prejudice, because they were not getting the Teachers Incentive. The respondent on the other hand disputed this evidence and submitted that the applicants never suffered any prejudice, because they were getting their salaries every month. There was no attack to the dignity and humanity of the applicants, by not paying them Teachers Incentive. The applicants failed to convince me that the failure by the respondent to pay them Teachers Incentive prejudiced them. I therefore believe that the applicants do not qualify to be compensated over and above the payment of Teachers Incentive.
Award
13. I find that the respondent, Limpopo Department of Education must pay the applicants, Mmola R.F, Modiba M.S, Mnisi M.P, Maponya M.C, Mathaba M.N, Mahlo M.A, Magoro M.S, Maila M.M, Modiba M.S, Malepe D.D, Mametja M.C, Motloutsi M.B.D, Mafokwane M.R, Mabela F, Hlatshwayo P.S, Maponya M.F, and Sechube B.L Teachers Incentive with effect from the month February 2021.
14. The respondent, Limpopo Department of Education is hereby ordered to pay each applicant in the amount of R18 669.20 (Eighteen Thousand Six Hundred and Sixty-Nine Rand Twenty Cents), being the Teachers Incentive for the period February to September 2021 calculated at R2 333.65 per month.
15. The whole amount in terms of paragraph 14 must be paid to the applicants on or before 01 December 2021, failing which it shall earn interest in terms of section 143 of the Act.
16. The respondent, Limpopo Department of Education is further hereby ordered to continue to pay the applicants the Teachers Incentive of R2 333.65 per month for as long as they continue to qualify for such.
V. Madula
Case No. ELRC81-21/22LP
Date: 09 November 2021
In the matter between
MMOLA FRANCINAH RAESEBE AND 15 OTHERS Applicants
And
LIMPOPO DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
Details of hearing and representation
1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place virtually on 29 September 2021 at 9:00AM. The applicants, Mmola R.F, Modiba M.S, Mnisi M.P, Maponya M.C, Mathaba M.N, Mahlo M.A, Magoro M.S, Maila M.M, Modiba M.S, Malepe D.D, Mametja M.C, Motloutsi M.B.D, Mafokwane M.R, Mabela F, Hlatshwayo P.S, Maponya M.F, and Sechube B.L were represented by Bianca Perry from Thomas and Swanepoel Attorneys, while the respondent, Limpopo Department of Education was represented by Matlou M.M, its official. The matter was decided on papers of records submitted by the parties.
Nature of the dispute
2. The dispute was about the applicants’ alleged unfair labour practice related to benefits. The applicants are alleging that the respondent failed to pay them Teacher Incentive (Rural Allowance) as provided for in terms of the Government Gazette 30678 and Personnel Administrative Measures (PAM) of 2016 effective from the date they became aware of the Respondent’s conduct. They became aware of their entitlement to the benefit on 04 February 2021. The applicants also contended that the respondent should compensate them in the form of a solatium for the unfair labour practice it committed against them.
Issues to be decided.
3. I must decide whether or not the applicants qualified for Teacher Incentive and whether or not they are entitled to compensation, over and above these Teacher Incentive If so, I must determine an appropriate relief.
Background to the dispute and common cause issues
4. The matter was scheduled for virtual arbitration hearing on 29 September 2021. During the arbitration hearing, the respondent conceded that the applicants qualify for Teacher Incentive. However, the date of effect would be the 1st of September 2021, the date on which the respondent approved the payment. The applicants contended that the date of payment should be effective from the date they became aware of the dispute, which is 04 February 2021. The parties then agreed for the matter to be decided on the papers of records. It was the agreement of the parties that the evidence in relation to the payment of solatium would be led by one of the applicants, Mmola Francinah Raesebe.
5. It is common cause that the applicants qualify for Teacher Incentive (Rural Allowance of R2 333.65 per month. All the applicants are employed as Educators at Malebalong Primary School situated at Bismarck Village, Makhutswa Circuit, Mopani District. The dispute arose on 04 February 2021.
Survey of the Applicants’ submission and argument
The applicants submitted that;
6. If the respondent could be allowed to pay the teacher Incentive on the date on which the Head of Department (HOD) approves, it will result in a severe injustice to the applicants. In this instance the respondent took seven (7) months to verify something that it could have verified in 2017. If permitted to do this the respondent would drag out future dispute of this nature to avoid or prolong payment of the incentive.
One witness of the applicants, Mmola Francinah Raesebe testified for the applicants under oath and in English that;
7. She was mandated by the other applicants to testify on their behalf. They choose to claim their Teacher Incentive effective from February 2021 instead of 2016 because they did not want to fight with the respondent. They felt sad, angry, and frustrated by what the respondent did in terms of not rectifying its database since 2016, which resulted in them not receiving their Teacher Incentive.
During cross examination, Mmola testified that they want to claim compensation because they were not treated fairly like other schools. They followed this issue since 2016, but what they are saying is that let the teacher incentive be paid effective from February 2021. They suffered prejudice because they were not getting their incentive since 2016.
Survey of the Respondent’s submission and argument
The respondent submitted that;
8. The respondent started with the verification of whether all the applicants qualify or not. The verification process was completed on 25 August 2021 and the approval to pay the applicants Teacher Incentive was obtained from the Head of Department on 02 September 2021. The respondent referred to Equity Aviation Services (Pty) Ltd v CCMA and others (2008) 29 ILJ 2507 (cc) where the court confirmed that reinstatement order is not necessarily retrospective and does not create an automatic right to any increases unless that right is founded on a contract of employment and Republican Press (Pty) Ltd v CEPPWAWU and others (2007) 28 ILJ 2503 (SCA) where the court showed that there is no right to retrospective payment for benefits except on a salary. The respondent did not commit any alleged unfair labour practice in relation to the non-payment of the rural incentive retrospectively.
9. In relation to the payment of compensation over and above the payment of Teacher Incentive, the respondent did not lead any evidence, but submitted that the witness never testified about the compensation, nor any prejudice suffered because of non- payment of the incentive. There were never any reputational damage and or any attack on the applicants’ human dignity. The respondent referred to a case of the Minister for Justice and Constitutional Development v Tshishonga 2009 9 BLLR 862 (LAC) where the court added that in case of solatium ‘’the award is, subject to one exception of non-patrimonial nature, and is in satisfaction of the person who has suffered an attack on their dignity and reputation or an onslaught on their humanity’’
Analysis of the submissions and arguments
10. It is common cause that the applicants qualify for Teacher Incentive (Rural Allowance of R2 333.65 per month. It is again common cause that the dispute arose on 04 February 2021. The applicants are challenging the date of effect of the payment of the Teacher Incentive. The respondent claimed to effect the payment effective from 01 September 2021. The applicants also claimed to be compensated for the alleged unfair conduct of the respondent in terms of not paying the Teacher Incentive since 2016.
11. In terms of the submission of the respondent, it should be allowed to effect the payment of Teacher Incentive after the conduction of the verification and approval of the Head of Department. I believe that if this is allowed, it will prejudice the Educators who qualify for the Teacher Incentive, because the respondent may hide behind the verification process in circumventing the payment as from the date the Educators qualify. In this matter the applicants referred the dispute on 28 April 2021 and the respondent took four months to verify whether the applicants qualify or not. I am not convinced by the submission of the respondent that it must pay the Teachers Incentive on the month the Head of Department gives approval, September 2021. The respondent was supposed to have compiled a list of all Teachers Incentive qualifying schools and Educators long time ago during the implementing stage of the Government Gazette on Teachers Incentive. Since it is common cause that the dispute arose on 04 February 2021 and the applicants are also claiming their Teachers Incentive from the month of February 2021, I find it to be fair for the respondent to pay the applicants Teachers Incentive with effect from the month February 2021.
12 In relation to the payment of compensation, the applicants went further to lead evidence of one witness, Mmola Francinah. The witness never testified about the prejudice they suffered because of the failure by the respondent to pay them Teachers Incentive during her evidence in chief. It was only during cross examination that Mmola testified that the applicants suffered prejudice, because they were not getting the Teachers Incentive. The respondent on the other hand disputed this evidence and submitted that the applicants never suffered any prejudice, because they were getting their salaries every month. There was no attack to the dignity and humanity of the applicants, by not paying them Teachers Incentive. The applicants failed to convince me that the failure by the respondent to pay them Teachers Incentive prejudiced them. I therefore believe that the applicants do not qualify to be compensated over and above the payment of Teachers Incentive.
Award
13. I find that the respondent, Limpopo Department of Education must pay the applicants, Mmola R.F, Modiba M.S, Mnisi M.P, Maponya M.C, Mathaba M.N, Mahlo M.A, Magoro M.S, Maila M.M, Modiba M.S, Malepe D.D, Mametja M.C, Motloutsi M.B.D, Mafokwane M.R, Mabela F, Hlatshwayo P.S, Maponya M.F, and Sechube B.L Teachers Incentive with effect from the month February 2021.
14. The respondent, Limpopo Department of Education is hereby ordered to pay each applicant in the amount of R18 669.20 (Eighteen Thousand Six Hundred and Sixty-Nine Rand Twenty Cents), being the Teachers Incentive for the period February to September 2021 calculated at R2 333.65 per month.
15. The whole amount in terms of paragraph 14 must be paid to the applicants on or before 01 December 2021, failing which it shall earn interest in terms of section 143 of the Act.
16. The respondent, Limpopo Department of Education is further hereby ordered to continue to pay the applicants the Teachers Incentive of R2 333.65 per month for as long as they continue to qualify for such.
V. Madula