ELRC644-20/21 EC
Text
ELRC704-21/22EC
Award Date:
07 March 2022
Case Number: ELRC704-21/22EC
Commissioner: Henk Jacobs
Date of Award : 07 March 2022
In the matter between
SAOU obo Mulder and 3 others
(Applicant)
And
Education Department – Eastern Cape
(Respondent)
Union/Applicant’s representative:
SAOU
Venita Van Wyk
Telephone: 060 971 4062
Telefax:
E-mail: venitavw@saou.co.za
Respondent’s representative: Sakhiwo Kralo
Respondent’s address:
Port Elizabeth
Telephone: 073 292 4229
Telefax:
E-mail: Sakhiwo.kralo@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing related to an alleged unfair labour practice dispute referred in terms section 186(2) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held virtually via Zoom on 15 February 2022.
2 The applicants, Ms Sandra Mulder and 3 others, were represented by Ms Venita van Wyk, an official from the Suid Afrikaanse Onderwys Unie (SAOU) The respondent, Education Department – Eastern Cape, was represented by Mr. S. Kralo, a Labour Relations Officer employed by the Respondent.
3 The hearing was held in English and was digitally recorded.
4 Parties agreed that there is no factual dispute in this matter.
Issue to be decided
5. The issue to be decided is whether the Respondent committed an alleged unfair labour practice dispute in terms of section 186(2) of the LRA when the Respondent fail to pay the Applicants their benefits in terms of capped leave and pro rata bonus on retirement.
Background to the matter
6. Ms Mulder was employed at Kabega Park Pre-Primary School and retired on 30 April 2021. At the time she retired, she was on a salary notch of R568 347.00 per annum.
7. Mr Wolmarans was employed at Bersig Special School, Kariega, and at the time of his retirement on 30 September 2020, he was employed at a salary notch of R751 388.00 per annum.
8. Mr Van Eeden was employed at Otto Du Plessis High School, and at the time he retired on 31 January 2021, he was employed at a salary notch of R660 186.00 per annum.
9. Ms Walsh was employed at Sanctor Primary School, and at the time of her retirement, she was employed at a salary notch of R454 146.00 per annum.
10. The Applicants sought to be paid their capped leave and pro rata bonus.
Submissions and arguments
11. The following amounts were provided by the Applicants as true and correct and was not disputed by the Respondent:
Ms S. Mulder
Capped leave = 51.71 leave days x R568347 ÷ 260.714 = R112 725.91 outstanding in terms of capped leave.
Pro rata bonus = basic salary R32004.68 per month ÷ 12 = R2667.05 x 9 months = R24003.45 outstanding in terms of pro rata bonus. Total due = R112 725.91 + R24003.45 = R136 729.36.
Mr D Wolmarans
Capped leave = 153.85 leave days x R751338 ÷ 260.714 = R443 372.24 outstanding in terms of capped leave.
Mr M. H. Van Eeden
Capped leave = 152 leave days x R660186 ÷ 260.714 = R384 897.90 outstanding in terms of capped leave.
Pro rata bonus = basic salary R32908.11 per month ÷ 12 = R2742.34 x 5 months = R13 711.70 outstanding in terms of prop rata bonus. Total due = R384 897.90 + R13 711.70 = R398 609.60.
Ms C. Walsh
Capped leave = 70.75 leave days x R454146 ÷ 260.714 = R122 928.12 in terms of capped leave.
Analysis
12. Section 186(2)(a) of the LRA states that an unfair labour practice means any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer and an employee relating to benefits.
13. It is common cause that the Applicants were not paid by the Respondent their capped leave and prorate bonus at the time they retired and that the Applicants were entitled to be paid their capped leave and prorate bonus as calculated hereinabove.
14. On that basis, the only conclusion that can be drawn is that the Respondent committed an unfair labour practice in terms of section 186(2) when it failed to pay the Applicants their capped leave and prorate bonusses.
15. In light of the above, I find it appropriate to make the following award.
Order
16. The Respondent, the Education Department -Easter Cape, committed an unfair labour practice when they fail to pay the Applicants, Ms S. Mulder, Mr D. Wolmarans, Mr M. H. van Eeden and Ms C. Walsh, their capped leave and prorate bonus at the time of their retirement.
17. The respondent, the Education Department – Eastern Cape, is ordered to pay the applicant, Ms S. Mulder, Persal number: 51452308, the amount of R136 729.36 (hundred and thirty-six thousand seven hundred and twenty-nine rand and thirty-six cents) in terms of her capped leave and pro rata bonus by no later than 07 March 2022.
18. The respondent, the Education Department – Eastern Cape, is further order to pay the second applicant, Mr D Wolmarans, Persal number: 51449412, the amount of R443 372.24 (four hundred and forty-three thousand three hundred and seventy-two rand and twenty-four cents) in terms of his capped leave by no later than 07 March 2022.
19. The respondent, the Education Department – Eastern Cape, is ordered to pay the third applicant, Mr M. H. Van Eeden, Persal number: 51457326, the amount of R398 609.60 (three hundred and ninety-eight thousand six hundred and nine rand and sixty cents) in terms of capped leave and pro rata bonus by no later than 07 March 2022.
20. The respondent, the Education Department – Eastern Cape, is ordered to pay the fourth applicant, Ms C. Walsh, Persal number: 50369041, the amount of R122 928.12 (hundred and twenty two thousand nine hundred and twenty eight rand and twelve cents) in terms of capped leave by no later than 31 March 2022.
Signature:
Commissioner: Henk Jacobs
Commissioner: Henk Jacobs
Date of Award : 07 March 2022
In the matter between
SAOU obo Mulder and 3 others
(Applicant)
And
Education Department – Eastern Cape
(Respondent)
Union/Applicant’s representative:
SAOU
Venita Van Wyk
Telephone: 060 971 4062
Telefax:
E-mail: venitavw@saou.co.za
Respondent’s representative: Sakhiwo Kralo
Respondent’s address:
Port Elizabeth
Telephone: 073 292 4229
Telefax:
E-mail: Sakhiwo.kralo@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing related to an alleged unfair labour practice dispute referred in terms section 186(2) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held virtually via Zoom on 15 February 2022.
2 The applicants, Ms Sandra Mulder and 3 others, were represented by Ms Venita van Wyk, an official from the Suid Afrikaanse Onderwys Unie (SAOU) The respondent, Education Department – Eastern Cape, was represented by Mr. S. Kralo, a Labour Relations Officer employed by the Respondent.
3 The hearing was held in English and was digitally recorded.
4 Parties agreed that there is no factual dispute in this matter.
Issue to be decided
5. The issue to be decided is whether the Respondent committed an alleged unfair labour practice dispute in terms of section 186(2) of the LRA when the Respondent fail to pay the Applicants their benefits in terms of capped leave and pro rata bonus on retirement.
Background to the matter
6. Ms Mulder was employed at Kabega Park Pre-Primary School and retired on 30 April 2021. At the time she retired, she was on a salary notch of R568 347.00 per annum.
7. Mr Wolmarans was employed at Bersig Special School, Kariega, and at the time of his retirement on 30 September 2020, he was employed at a salary notch of R751 388.00 per annum.
8. Mr Van Eeden was employed at Otto Du Plessis High School, and at the time he retired on 31 January 2021, he was employed at a salary notch of R660 186.00 per annum.
9. Ms Walsh was employed at Sanctor Primary School, and at the time of her retirement, she was employed at a salary notch of R454 146.00 per annum.
10. The Applicants sought to be paid their capped leave and pro rata bonus.
Submissions and arguments
11. The following amounts were provided by the Applicants as true and correct and was not disputed by the Respondent:
Ms S. Mulder
Capped leave = 51.71 leave days x R568347 ÷ 260.714 = R112 725.91 outstanding in terms of capped leave.
Pro rata bonus = basic salary R32004.68 per month ÷ 12 = R2667.05 x 9 months = R24003.45 outstanding in terms of pro rata bonus. Total due = R112 725.91 + R24003.45 = R136 729.36.
Mr D Wolmarans
Capped leave = 153.85 leave days x R751338 ÷ 260.714 = R443 372.24 outstanding in terms of capped leave.
Mr M. H. Van Eeden
Capped leave = 152 leave days x R660186 ÷ 260.714 = R384 897.90 outstanding in terms of capped leave.
Pro rata bonus = basic salary R32908.11 per month ÷ 12 = R2742.34 x 5 months = R13 711.70 outstanding in terms of prop rata bonus. Total due = R384 897.90 + R13 711.70 = R398 609.60.
Ms C. Walsh
Capped leave = 70.75 leave days x R454146 ÷ 260.714 = R122 928.12 in terms of capped leave.
Analysis
12. Section 186(2)(a) of the LRA states that an unfair labour practice means any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer and an employee relating to benefits.
13. It is common cause that the Applicants were not paid by the Respondent their capped leave and prorate bonus at the time they retired and that the Applicants were entitled to be paid their capped leave and prorate bonus as calculated hereinabove.
14. On that basis, the only conclusion that can be drawn is that the Respondent committed an unfair labour practice in terms of section 186(2) when it failed to pay the Applicants their capped leave and prorate bonusses.
15. In light of the above, I find it appropriate to make the following award.
Order
16. The Respondent, the Education Department -Easter Cape, committed an unfair labour practice when they fail to pay the Applicants, Ms S. Mulder, Mr D. Wolmarans, Mr M. H. van Eeden and Ms C. Walsh, their capped leave and prorate bonus at the time of their retirement.
17. The respondent, the Education Department – Eastern Cape, is ordered to pay the applicant, Ms S. Mulder, Persal number: 51452308, the amount of R136 729.36 (hundred and thirty-six thousand seven hundred and twenty-nine rand and thirty-six cents) in terms of her capped leave and pro rata bonus by no later than 07 March 2022.
18. The respondent, the Education Department – Eastern Cape, is further order to pay the second applicant, Mr D Wolmarans, Persal number: 51449412, the amount of R443 372.24 (four hundred and forty-three thousand three hundred and seventy-two rand and twenty-four cents) in terms of his capped leave by no later than 07 March 2022.
19. The respondent, the Education Department – Eastern Cape, is ordered to pay the third applicant, Mr M. H. Van Eeden, Persal number: 51457326, the amount of R398 609.60 (three hundred and ninety-eight thousand six hundred and nine rand and sixty cents) in terms of capped leave and pro rata bonus by no later than 07 March 2022.
20. The respondent, the Education Department – Eastern Cape, is ordered to pay the fourth applicant, Ms C. Walsh, Persal number: 50369041, the amount of R122 928.12 (hundred and twenty two thousand nine hundred and twenty eight rand and twelve cents) in terms of capped leave by no later than 31 March 2022.
Signature:
Commissioner: Henk Jacobs