ELRC644-20/21 EC
Text
ELRC540-21/22 EC
Award Date:
25 January 2022
Case Number: ELRC540-21/22 EC
Panelists: Malusi Mbuli
Date of Award: 25 -January-22
In the ARBITRATION between
NAPTOSA obo GRACE MAGDELANA PETERSEN
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing virtually at 09:00 on the 15th of December 2021.
2. The applicant, Mrs. Grace Magdelena Peterson failed to attend the hearing because she is attending grade 12 examination marking and could not be released to attend the hearing. Her representative Advocate Saayman from the applicants trade union NAPTOSA, however attended the hearing virtually.
3. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. Euan Hector an official of the respondent.
4. The matter proceeded on the 15th of December 2021, and was finalized on the same day with the parties dealing with evidence and arguments at the same time on record on the 15th of December 2021.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicant’s Home Owners Allowance and if so, I must determine the appropriate remedy.
EVIDENCE
6. The facts in this dispute were common and were confirmed by the parties on record. It then follows that the arbitration hearing was recorded and the zoom record will form the record of this hearing.
COMMON CAUSE FACTS
7. The applicant is employed by the respondent as a permanent post level 1 Educator at Hummansdorp Senior Secondary School at the Eastern Cape Department of Education.
8. She was terminated on the persal system before her salary and benefits were taken away from him and reinstated in an award on a dismissal dispute. The award as indicated reinstated the applicant retrospectively without loss of pay and without loss of benefits.
9. The applicant was reinstated on the persal system, her position etc. but her Home Owners Allowance was not reinstated when she returned subsequent to her reinstatement. This benefit, the home owners allowance not paid to the applicant for the period between the 01st January 2020 until the 31st of December 2021 and therefore the home owners allowance is owing to the applicant..
10. The amount owed to the applicant in respect of Home Owners Allowance can be details as follows:
- 01st January 2021 – 30 June 2020 = R8 390, 10.
- 01st July 2020 – 30th of June 2021 = R17 483,28
- 01st July 2021 – 31st December 2021 = R9 000,42
11. The total is R34 873,80
ANALYSIS OF EVIDENCE AND ARGUMENT
12. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 185 (2) provides that:
- no employee must be subjected to an unfair labour practice. The applicant feel that the employer has committed an unfair labour practice by failing to pay her the Home Owners Allowance due to the applicant in terms of the PSCBC Resolution 7 of 2015.
13. As indicated above the dispute concerns common cause facts, the parties are not in dispute on whether the respondent owe the applicant her Home Owners Allowance. The parties are also not in dispute on the date of engagement of the applicant based on the award reinstating her and her benefits.
14. The only issue that remains to be decided is when such allowance should be paid to the applicant and the correction of the date of engagement as a result of the retrospective reinstatement order awarded in favor of the applicant in this matter.
15. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the evidence that has been adduced in the arbitration hearing that the Home Owners Allowance claimed by the applicant is due and payable to her.
16. The respondent has committed an unfair labour practice by failing to pay the applicant her Home Owners Allowance and as such, this constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
17. In the circumstances I make the following award.
AWARD
18. The respondent is ordered to pay Home Owners Allowance to the applicant in the amount of R34 873,80 for the period from the 01st January 2020 to the 31st of December 2021 as detailed above.
19. The applicant’s date of resumption of duty is confirmed to be the 01st of October 2018 and not the 01st of January 2020.
20. The amount referred to in the paragraph18 above must be paid to the applicant by no later than the 28th of February 2022.
Signature:
Commissioner: Malusi Mbuli
Panelists: Malusi Mbuli
Date of Award: 25 -January-22
In the ARBITRATION between
NAPTOSA obo GRACE MAGDELANA PETERSEN
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing virtually at 09:00 on the 15th of December 2021.
2. The applicant, Mrs. Grace Magdelena Peterson failed to attend the hearing because she is attending grade 12 examination marking and could not be released to attend the hearing. Her representative Advocate Saayman from the applicants trade union NAPTOSA, however attended the hearing virtually.
3. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. Euan Hector an official of the respondent.
4. The matter proceeded on the 15th of December 2021, and was finalized on the same day with the parties dealing with evidence and arguments at the same time on record on the 15th of December 2021.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicant’s Home Owners Allowance and if so, I must determine the appropriate remedy.
EVIDENCE
6. The facts in this dispute were common and were confirmed by the parties on record. It then follows that the arbitration hearing was recorded and the zoom record will form the record of this hearing.
COMMON CAUSE FACTS
7. The applicant is employed by the respondent as a permanent post level 1 Educator at Hummansdorp Senior Secondary School at the Eastern Cape Department of Education.
8. She was terminated on the persal system before her salary and benefits were taken away from him and reinstated in an award on a dismissal dispute. The award as indicated reinstated the applicant retrospectively without loss of pay and without loss of benefits.
9. The applicant was reinstated on the persal system, her position etc. but her Home Owners Allowance was not reinstated when she returned subsequent to her reinstatement. This benefit, the home owners allowance not paid to the applicant for the period between the 01st January 2020 until the 31st of December 2021 and therefore the home owners allowance is owing to the applicant..
10. The amount owed to the applicant in respect of Home Owners Allowance can be details as follows:
- 01st January 2021 – 30 June 2020 = R8 390, 10.
- 01st July 2020 – 30th of June 2021 = R17 483,28
- 01st July 2021 – 31st December 2021 = R9 000,42
11. The total is R34 873,80
ANALYSIS OF EVIDENCE AND ARGUMENT
12. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 185 (2) provides that:
- no employee must be subjected to an unfair labour practice. The applicant feel that the employer has committed an unfair labour practice by failing to pay her the Home Owners Allowance due to the applicant in terms of the PSCBC Resolution 7 of 2015.
13. As indicated above the dispute concerns common cause facts, the parties are not in dispute on whether the respondent owe the applicant her Home Owners Allowance. The parties are also not in dispute on the date of engagement of the applicant based on the award reinstating her and her benefits.
14. The only issue that remains to be decided is when such allowance should be paid to the applicant and the correction of the date of engagement as a result of the retrospective reinstatement order awarded in favor of the applicant in this matter.
15. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the evidence that has been adduced in the arbitration hearing that the Home Owners Allowance claimed by the applicant is due and payable to her.
16. The respondent has committed an unfair labour practice by failing to pay the applicant her Home Owners Allowance and as such, this constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
17. In the circumstances I make the following award.
AWARD
18. The respondent is ordered to pay Home Owners Allowance to the applicant in the amount of R34 873,80 for the period from the 01st January 2020 to the 31st of December 2021 as detailed above.
19. The applicant’s date of resumption of duty is confirmed to be the 01st of October 2018 and not the 01st of January 2020.
20. The amount referred to in the paragraph18 above must be paid to the applicant by no later than the 28th of February 2022.
Signature:
Commissioner: Malusi Mbuli