ELRC644-20/21 EC
Text
ELRC625-21/22EC
Award Date:
10 March 2022
Panelist: Selolong Mosoma
Case No.: ELRC625-21/22EC
Date of Award: 10 March 2022
In the ARBITRATION between:
NAPTOSA obo Chane Van Dyk
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Adv. Gavin Duncan Saayman
Applicant’s address: 716 Zwide Area,
Hofmeyer
5930 Telephone: 0726568196
Telefax:
Email saaymangavin@gmail.com
Respondent’s representative: Ms. A Slabbert
Respondent’s address: Department of Education: Eastern Cape
Cradock District Office, Cradock
5880
Telephone: 0406084541
Telefax:
Email ansie68lro@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration matter between NAPTOSA obo Ms. Chane Van Dyk and Department of Education: Eastern Cape. The matter relates to an alleged unfair labour practice dispute and it was heard on 24 February 2022, via Zoom Video Conferencing Platform. The Applicant, Ms. Chane Van Dyk was represented by Advocate GD Saayman, official from National Professional Teachers’ organization of South Africa (NAPTOSA). The Respondent was represented by its Labour Relations Officer, Ms. A Slabbert.
2. Parties submitted a common bundle of documents which was accepted to what it purported to be.
3. The proceedings were digitally recorded and hand written notes were taken.
ISSUE TO BE DECIDED
4. I have to decide whether the Respondent committed an unfair act or omission involving unfair conduct relating to benefits as contemplated in section 186(2) (a) of Labour Relations Act, Act 66 of 1995 as amended. In the event I find the affirmative, I have to determine the appropriate relief the Applicant would be entitled to
BACKGROUND
5. The Applicant was employed on the 18 April 2014, as level 1 Educator based at West View Special School. It was common cause that the Applicant was receiving housing allowance as part of her employment benefits.
6. The Applicant had a housing bond with South African Home Loans and it was serviced monthly with a monthly repayment of R 4 743.31. The bond monthly repayment was paid directly to South African Home by the Respondent via debit order.
7. The Applicant settled the bond in November 2020. Despite the loan being settled, the Respondent continued paying the bond monthly instalment over to South African Home Loan.
8. The Applicant referred a dispute concerning an alleged unfair labour practice relating to benefits to the Council (ELRC). She sought compensation of R 63 501,91 as relief.
9. On the other hand, the Respondent contended that the amount owing to the Applicant was R 32 923,17 not R 63 501,91 as alleged by the Applicant.
SURVEY OF EVIDENCE
10. As it is required that an award with brief reasons to be issued, the following is a summary of the relevant evidence tendered under oath.
Applicant’s Case
11. The only witness to testify in support of the Applicant’s case was the Applicant herself.
12. Ms. Chane Van Wyk testified under oath as follows;
13. She testified that she had a home loan with South African Home loan and it was serviced on monthly basis via stop order. She explained that the home loan was settled on the 16 November 2020, however, the Respondent continued to service the monthly home loan installment with SA home loans. She further stated that she was advised by SA home loans that all additional payments made after bond settlement were paid back to the Respondent.
14. She stated that the amount of R 63 501.91 was based on her own calculations and the Respondent might be owing her more or less than R 63 501.91.
15. Lastly, she confirmed that the amount due to her was for the period January 2021 to July 2021.
16. Under cross-examination, she conceded that the actual amount due to her was R 32 923.50 not R 63 501.91 as alleged.
Respondent’s Case
17. Ms. Alecia Slabbert, on. Behalf of the Respondent indicated that it was not in dispute that there was an amount of R 32 923.51 due to the Applicant as a refund from SA home loans.
SUBMISSION OF ARGUMANTS
18. Both Parties indicated that they were not going to submit oral or written closing arguments
ANALYSIS OF EVIDENCE AND ARGUMENT
19. I have carefully considered all evidence presented by the parties, however, section 138 (7) of Labour Relations Act requires brief reasons for my award, I have only considered evidence that I regard necessary to substantiate and arrive at my findings and determination of this dispute.
20. Section 186 (2) (a) of Labour Relations Act 66 of 1995 as amended (LRA) defines unfair labour practice as “ any unfair act or omission that arises between an employee and an employer involving any unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.
21. Section 23 of the Constitution provides that everyone has the right to fair labour practice.
22. The onus to proof the existence of the conduct complained about of unfair labour practice within the meaning of section 186 (2) (a) of the LRA rests with the employee. The employee must therefore be able to lay the evidentiary foundation to substantiate his or her claim of unfair labour practice.
23. It is common cause that the Applicant had a home loan with South African home loans. It is further common cause that the Applicant was receiving housing allowance as one of her benefits.
24. It is the Applicant’s contention that the Respondent continued to service the home loan installment on monthly basis even after the home loan has been settled.
25. This contention is not challenged by the Respondent that they continued to service the Applicant’s home loan instalment.
26. The Respondent contented the amount of R 63 501.91 as alleged by the Applicant is incorrect because the amount they received back from SA home loans was R 32 923.17. This evidence was corroborated by the evidence of the Applicant herself that the amount was for the period January 2021 to July 2021. I therefore accept and agree with the Respondent’s version. The documents on records further points that the money repaid to the Respondent by SA home loans was for the period January 2021 to July 2021.
27. Most surprisingly, although onus to proof of the existence of the conduct complained about of unfair labour practice within the meaning of section 186 (2) (a) of the LRA rests with the employee, there was no evidence placed before me to suggest how did the Applicant arrive at the amount of R 63 501.91.
28. In light of the above, it is my finding that the version of the Respondent with regards to the exact amount due to the Applicant is more probable than the version put before me by the Applicant. I therefore accept the exact amount due to the Applicant is R 32 923.17 not R 63 501.91 as alleged by the Applicant.
29. In the premises, I find that the Applicant has successfully demonstrated that the Respondent has committed an unfair labour practice in relations to benefits and that she is entitled to the relief sought.
30. The Respondent is ordered to compensate the Applicant her housing allowance of an amount of R 32 923.17 (thirty two thousand nine hundred and twenty three rands seventeenth cents) which is for the period January 2021 to July 2021.
AWARD
31. I find that the Respondent, Department of Education Eastern Cape, has committed an unfair labour practice relating to benefits against the Applicant, Ms. Chane Van Dyk.
32. The Respondent is ordered to compensate the Applicant R 32 932.17 (thirty two thousand nine hundred and twenty three rands seventeenth cents).
33. The amount mentioned in paragraph 32 above must be paid directly into the Applicant’s banking account already known to the Respondent by no later than the 30 April 2022.
__ __
Selolong Mosoma
ELRC Arbitrator
Case No.: ELRC625-21/22EC
Date of Award: 10 March 2022
In the ARBITRATION between:
NAPTOSA obo Chane Van Dyk
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Adv. Gavin Duncan Saayman
Applicant’s address: 716 Zwide Area,
Hofmeyer
5930 Telephone: 0726568196
Telefax:
Email saaymangavin@gmail.com
Respondent’s representative: Ms. A Slabbert
Respondent’s address: Department of Education: Eastern Cape
Cradock District Office, Cradock
5880
Telephone: 0406084541
Telefax:
Email ansie68lro@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration matter between NAPTOSA obo Ms. Chane Van Dyk and Department of Education: Eastern Cape. The matter relates to an alleged unfair labour practice dispute and it was heard on 24 February 2022, via Zoom Video Conferencing Platform. The Applicant, Ms. Chane Van Dyk was represented by Advocate GD Saayman, official from National Professional Teachers’ organization of South Africa (NAPTOSA). The Respondent was represented by its Labour Relations Officer, Ms. A Slabbert.
2. Parties submitted a common bundle of documents which was accepted to what it purported to be.
3. The proceedings were digitally recorded and hand written notes were taken.
ISSUE TO BE DECIDED
4. I have to decide whether the Respondent committed an unfair act or omission involving unfair conduct relating to benefits as contemplated in section 186(2) (a) of Labour Relations Act, Act 66 of 1995 as amended. In the event I find the affirmative, I have to determine the appropriate relief the Applicant would be entitled to
BACKGROUND
5. The Applicant was employed on the 18 April 2014, as level 1 Educator based at West View Special School. It was common cause that the Applicant was receiving housing allowance as part of her employment benefits.
6. The Applicant had a housing bond with South African Home Loans and it was serviced monthly with a monthly repayment of R 4 743.31. The bond monthly repayment was paid directly to South African Home by the Respondent via debit order.
7. The Applicant settled the bond in November 2020. Despite the loan being settled, the Respondent continued paying the bond monthly instalment over to South African Home Loan.
8. The Applicant referred a dispute concerning an alleged unfair labour practice relating to benefits to the Council (ELRC). She sought compensation of R 63 501,91 as relief.
9. On the other hand, the Respondent contended that the amount owing to the Applicant was R 32 923,17 not R 63 501,91 as alleged by the Applicant.
SURVEY OF EVIDENCE
10. As it is required that an award with brief reasons to be issued, the following is a summary of the relevant evidence tendered under oath.
Applicant’s Case
11. The only witness to testify in support of the Applicant’s case was the Applicant herself.
12. Ms. Chane Van Wyk testified under oath as follows;
13. She testified that she had a home loan with South African Home loan and it was serviced on monthly basis via stop order. She explained that the home loan was settled on the 16 November 2020, however, the Respondent continued to service the monthly home loan installment with SA home loans. She further stated that she was advised by SA home loans that all additional payments made after bond settlement were paid back to the Respondent.
14. She stated that the amount of R 63 501.91 was based on her own calculations and the Respondent might be owing her more or less than R 63 501.91.
15. Lastly, she confirmed that the amount due to her was for the period January 2021 to July 2021.
16. Under cross-examination, she conceded that the actual amount due to her was R 32 923.50 not R 63 501.91 as alleged.
Respondent’s Case
17. Ms. Alecia Slabbert, on. Behalf of the Respondent indicated that it was not in dispute that there was an amount of R 32 923.51 due to the Applicant as a refund from SA home loans.
SUBMISSION OF ARGUMANTS
18. Both Parties indicated that they were not going to submit oral or written closing arguments
ANALYSIS OF EVIDENCE AND ARGUMENT
19. I have carefully considered all evidence presented by the parties, however, section 138 (7) of Labour Relations Act requires brief reasons for my award, I have only considered evidence that I regard necessary to substantiate and arrive at my findings and determination of this dispute.
20. Section 186 (2) (a) of Labour Relations Act 66 of 1995 as amended (LRA) defines unfair labour practice as “ any unfair act or omission that arises between an employee and an employer involving any unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.
21. Section 23 of the Constitution provides that everyone has the right to fair labour practice.
22. The onus to proof the existence of the conduct complained about of unfair labour practice within the meaning of section 186 (2) (a) of the LRA rests with the employee. The employee must therefore be able to lay the evidentiary foundation to substantiate his or her claim of unfair labour practice.
23. It is common cause that the Applicant had a home loan with South African home loans. It is further common cause that the Applicant was receiving housing allowance as one of her benefits.
24. It is the Applicant’s contention that the Respondent continued to service the home loan installment on monthly basis even after the home loan has been settled.
25. This contention is not challenged by the Respondent that they continued to service the Applicant’s home loan instalment.
26. The Respondent contented the amount of R 63 501.91 as alleged by the Applicant is incorrect because the amount they received back from SA home loans was R 32 923.17. This evidence was corroborated by the evidence of the Applicant herself that the amount was for the period January 2021 to July 2021. I therefore accept and agree with the Respondent’s version. The documents on records further points that the money repaid to the Respondent by SA home loans was for the period January 2021 to July 2021.
27. Most surprisingly, although onus to proof of the existence of the conduct complained about of unfair labour practice within the meaning of section 186 (2) (a) of the LRA rests with the employee, there was no evidence placed before me to suggest how did the Applicant arrive at the amount of R 63 501.91.
28. In light of the above, it is my finding that the version of the Respondent with regards to the exact amount due to the Applicant is more probable than the version put before me by the Applicant. I therefore accept the exact amount due to the Applicant is R 32 923.17 not R 63 501.91 as alleged by the Applicant.
29. In the premises, I find that the Applicant has successfully demonstrated that the Respondent has committed an unfair labour practice in relations to benefits and that she is entitled to the relief sought.
30. The Respondent is ordered to compensate the Applicant her housing allowance of an amount of R 32 923.17 (thirty two thousand nine hundred and twenty three rands seventeenth cents) which is for the period January 2021 to July 2021.
AWARD
31. I find that the Respondent, Department of Education Eastern Cape, has committed an unfair labour practice relating to benefits against the Applicant, Ms. Chane Van Dyk.
32. The Respondent is ordered to compensate the Applicant R 32 932.17 (thirty two thousand nine hundred and twenty three rands seventeenth cents).
33. The amount mentioned in paragraph 32 above must be paid directly into the Applicant’s banking account already known to the Respondent by no later than the 30 April 2022.
__ __
Selolong Mosoma
ELRC Arbitrator