ELRC644-20/21 EC
Text
ELRC443-21/22FS
Award Date:
01 February 2022
Case No: ELRC443-21/22FS
Province: Free State
Applicant: SADTU OBO MORAKILE KELEBOGILE LIZZY
Respondent: DEPARTMENT OF EDUCATION, FREE STATE
Issue: Unfair Labour Practice
Date of the hearing: 15 December 2021
Form of the hearing: On line.
Date of the award: 01 February 2022
Arbitrator : Thomas Murimisi Mahasha
Union/Applicant’s representative : Makompane Mathe
Respondent’s representative: Tsunke Thulo
Applicant’s address:
Telephone:
Telefax:
Respondent’s address:
Telephone:
Telefax:
DETAILS OF THE HEARING AND REPRESENTATION.
1) The employee referred a dispute in terms of section 186 (2) (c) of the Labour Relations Act, herein referred to as the “LRA”.
2) The matter was set down as an on line arbitration process on 15 December 2021.
3) The employee was in attendance and represented by Makompane Mathe of SADTU.
4) The employer was also in attendance and represented by Tsunke Mathe, Director Labour Relations.
ISSUES TO BE DECIDED.
5) The issues to be decided was whether the employer committed an unfair labour practice, and if so, to order the appropriate relief.
BACKGROUND TO THE DISPUTE.
6) The employer provides a housing allowance to qualifying employees. There is a collective agreement in place that provides for the requirements that employees must meet to qualify for housing allowance. The employee applied for a housing allowance in 2013.
7) She was paid a monthly housing allowance to the amount of R900.00. The amount of the allowance was increased from R900.00 to R1 200.00 on a monthly basis. She was not paid the additional R300.00.
8) She therefore declared a dispute in terms of section 186(2) of the Labour Relations Act, herein referred to as the “LRA”.
9) The employee exchanged one set of bundle of documents.
10) The employee sought payment of the housing allowance retrospectively.
SURVEY OF EVIDENCE AND ARGUMENT.
EMPLOYEE’S EVIDENCE.
11) Lizzy Kelebogile Morakile testified that she only realized in 2015 that she was not paid the additional R300.00 when she collected her deceased cousin’s salary advice and upon opening it, she saw the amount paid by the employer for the housing allowance.
12) She lodged a grievance with her employer in 2016. She received a letter from the employer informing her that if she was to receive housing allowance, she had to update her credentials. She was informed by the employer that she would not be paid housing allowance because she did not make an application.
13) She did not apply because she was under the impression that the adjustment would be done automatically since she had been receiving the R900.00 housing allowance.
14) When cross examined she testified that she received a letter from the employer informing her that she had to update the housing allowance from R 900 to R 1200 in order to be paid housing allowance.
15) She updated her housing allowance status in December 2020, and had since then, been paid the additional housing allowance of R 300.00.
16) She sought payment of the additional R300.00 backdated from 2015.
EMPLOYER’S EVIDENCE.
17) Mongadi Marcus Mokoena testified that he is the acting Assistant Director who deals with employees’ pensions and housing allowance.
18) In 2016, the employer issued a circular informing all employees about the changes brought about by the new housing allowance policy.
19) All employees were in terms of the new policy, expected to register with the Government Employee Scheme in order to be considered for the additional R300.00 housing allowance. In registering with the Scheme, employees were to submit confirmation of registration with the Government Employee Scheme. The employee did not register with the Government Employee Scheme. The employee could not be paid the additional R300.00 without having registered herself with the Scheme.
20) Because the employee was a home owner, she had to submit upon registration, a Permission to Occupy from the Local Municipality, a bond agreement and a Title deed in case the house was registered in her name.
21) The employee could not be paid if she was not registered. Payment would only be made from the date of registration and submission of the prescribed documents. Payment cannot be backdated.
22) The employee’s housing allowance was increased from R900.00 to R1 400.00 from January 2021 after she had complied with the requirements.
23) When cross examined, he agreed that housing allowance was increased by R300.00. However, employees would only be eligible for payment upon registration with the Government Employee scheme.
24) He denied that GPSSBC Resolution 7 provides automatic payment of the additional R300.00 on an annual basis.
ANALYSIS OF ARGUMENTS AND FINDINGS.
25) In my analysis, I only considered relevant evidence and arguments presented by both parties.
26) The onus was on the employee to prove that the employer committed an unfair labour practice relating to benefits when it refused to backdate payment of her housing allowance from the date of the inception of GPSSBC Resolution.
27) In terms of section 186(2) (a) of the LRA, “‘Unfair Labour Practice’ means any unfair act or omission that arises between an employer and an employee involving- an unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for reasons relating to probation) or training of an employee or relating to provision of benefits to an employee.”
28) It was a common cause issue that the employee’s dispute related to provision of benefits in the form of a housing allowance.
29) It was also a common cause issue that the employee did not register with the Government Employee Scheme in 2016. She only registered with the Government Employee Scheme in December 2020 and was paid the additional R300.00 in January 2021.
30) The crux of the employee’s case was that the employer should have automatically increased payment of the allowance from R900.00 to R1 400.00, without her making an application.
31) On the other hand, the employer’s version was that the employee should have updated her credentials by registering with the Government Employee Scheme.
32) I was not convinced by the employee’s version that the employer should have automatically updated the housing allowance from R 900 to R1 200. The fact that the Resolution provided for the employer to update the allowance on an annual basis did not provide for an automatic payment of the increase. The employee did not present tangible evidence to substantiate her claim.
33) The employee did not dispute that she was required by the Policy to register with the Scheme. She also did not dispute that she was only paid the additional R 300.00 after she had registered with the Government Employee Scheme. Neither did she dispute that the employer issued a circular informing all the employees about the contents of Resolution 7.
34) In addition, the employer also informed her individually after she had lodged a grievance that she would not be paid the additional R300.00 if she was not registered with the Government Employee Scheme.
35) On the basis of the reasons provided above, I was convinced that the employee was made aware, that she had to meet certain requirements for her to be paid additional housing allowance.
36) The employee did not submit compelling evidence to convince me that payment had to be backdated. I was persuaded by the employer’s testimony that the Policy did not provide for backdated payment.
37) My finding is that the employee failed to discharge the onus of proving that the employer committed an unfair labour practice relating to benefits as envisaged by section 186(2)(a) of the Labour Relations Act. The employee, could therefore, not be granted the remedy, she required.
AWARD.
38) The employee’s dispute is dismissed.
MAHASHA TM
ELRC PANELIST
Province: Free State
Applicant: SADTU OBO MORAKILE KELEBOGILE LIZZY
Respondent: DEPARTMENT OF EDUCATION, FREE STATE
Issue: Unfair Labour Practice
Date of the hearing: 15 December 2021
Form of the hearing: On line.
Date of the award: 01 February 2022
Arbitrator : Thomas Murimisi Mahasha
Union/Applicant’s representative : Makompane Mathe
Respondent’s representative: Tsunke Thulo
Applicant’s address:
Telephone:
Telefax:
Respondent’s address:
Telephone:
Telefax:
DETAILS OF THE HEARING AND REPRESENTATION.
1) The employee referred a dispute in terms of section 186 (2) (c) of the Labour Relations Act, herein referred to as the “LRA”.
2) The matter was set down as an on line arbitration process on 15 December 2021.
3) The employee was in attendance and represented by Makompane Mathe of SADTU.
4) The employer was also in attendance and represented by Tsunke Mathe, Director Labour Relations.
ISSUES TO BE DECIDED.
5) The issues to be decided was whether the employer committed an unfair labour practice, and if so, to order the appropriate relief.
BACKGROUND TO THE DISPUTE.
6) The employer provides a housing allowance to qualifying employees. There is a collective agreement in place that provides for the requirements that employees must meet to qualify for housing allowance. The employee applied for a housing allowance in 2013.
7) She was paid a monthly housing allowance to the amount of R900.00. The amount of the allowance was increased from R900.00 to R1 200.00 on a monthly basis. She was not paid the additional R300.00.
8) She therefore declared a dispute in terms of section 186(2) of the Labour Relations Act, herein referred to as the “LRA”.
9) The employee exchanged one set of bundle of documents.
10) The employee sought payment of the housing allowance retrospectively.
SURVEY OF EVIDENCE AND ARGUMENT.
EMPLOYEE’S EVIDENCE.
11) Lizzy Kelebogile Morakile testified that she only realized in 2015 that she was not paid the additional R300.00 when she collected her deceased cousin’s salary advice and upon opening it, she saw the amount paid by the employer for the housing allowance.
12) She lodged a grievance with her employer in 2016. She received a letter from the employer informing her that if she was to receive housing allowance, she had to update her credentials. She was informed by the employer that she would not be paid housing allowance because she did not make an application.
13) She did not apply because she was under the impression that the adjustment would be done automatically since she had been receiving the R900.00 housing allowance.
14) When cross examined she testified that she received a letter from the employer informing her that she had to update the housing allowance from R 900 to R 1200 in order to be paid housing allowance.
15) She updated her housing allowance status in December 2020, and had since then, been paid the additional housing allowance of R 300.00.
16) She sought payment of the additional R300.00 backdated from 2015.
EMPLOYER’S EVIDENCE.
17) Mongadi Marcus Mokoena testified that he is the acting Assistant Director who deals with employees’ pensions and housing allowance.
18) In 2016, the employer issued a circular informing all employees about the changes brought about by the new housing allowance policy.
19) All employees were in terms of the new policy, expected to register with the Government Employee Scheme in order to be considered for the additional R300.00 housing allowance. In registering with the Scheme, employees were to submit confirmation of registration with the Government Employee Scheme. The employee did not register with the Government Employee Scheme. The employee could not be paid the additional R300.00 without having registered herself with the Scheme.
20) Because the employee was a home owner, she had to submit upon registration, a Permission to Occupy from the Local Municipality, a bond agreement and a Title deed in case the house was registered in her name.
21) The employee could not be paid if she was not registered. Payment would only be made from the date of registration and submission of the prescribed documents. Payment cannot be backdated.
22) The employee’s housing allowance was increased from R900.00 to R1 400.00 from January 2021 after she had complied with the requirements.
23) When cross examined, he agreed that housing allowance was increased by R300.00. However, employees would only be eligible for payment upon registration with the Government Employee scheme.
24) He denied that GPSSBC Resolution 7 provides automatic payment of the additional R300.00 on an annual basis.
ANALYSIS OF ARGUMENTS AND FINDINGS.
25) In my analysis, I only considered relevant evidence and arguments presented by both parties.
26) The onus was on the employee to prove that the employer committed an unfair labour practice relating to benefits when it refused to backdate payment of her housing allowance from the date of the inception of GPSSBC Resolution.
27) In terms of section 186(2) (a) of the LRA, “‘Unfair Labour Practice’ means any unfair act or omission that arises between an employer and an employee involving- an unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for reasons relating to probation) or training of an employee or relating to provision of benefits to an employee.”
28) It was a common cause issue that the employee’s dispute related to provision of benefits in the form of a housing allowance.
29) It was also a common cause issue that the employee did not register with the Government Employee Scheme in 2016. She only registered with the Government Employee Scheme in December 2020 and was paid the additional R300.00 in January 2021.
30) The crux of the employee’s case was that the employer should have automatically increased payment of the allowance from R900.00 to R1 400.00, without her making an application.
31) On the other hand, the employer’s version was that the employee should have updated her credentials by registering with the Government Employee Scheme.
32) I was not convinced by the employee’s version that the employer should have automatically updated the housing allowance from R 900 to R1 200. The fact that the Resolution provided for the employer to update the allowance on an annual basis did not provide for an automatic payment of the increase. The employee did not present tangible evidence to substantiate her claim.
33) The employee did not dispute that she was required by the Policy to register with the Scheme. She also did not dispute that she was only paid the additional R 300.00 after she had registered with the Government Employee Scheme. Neither did she dispute that the employer issued a circular informing all the employees about the contents of Resolution 7.
34) In addition, the employer also informed her individually after she had lodged a grievance that she would not be paid the additional R300.00 if she was not registered with the Government Employee Scheme.
35) On the basis of the reasons provided above, I was convinced that the employee was made aware, that she had to meet certain requirements for her to be paid additional housing allowance.
36) The employee did not submit compelling evidence to convince me that payment had to be backdated. I was persuaded by the employer’s testimony that the Policy did not provide for backdated payment.
37) My finding is that the employee failed to discharge the onus of proving that the employer committed an unfair labour practice relating to benefits as envisaged by section 186(2)(a) of the Labour Relations Act. The employee, could therefore, not be granted the remedy, she required.
AWARD.
38) The employee’s dispute is dismissed.
MAHASHA TM
ELRC PANELIST