ELRC 597- 21/22 EC
Text
ELRC 597- 21/22 EC
Award Date:
23 June 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC 597- 21/22 EC
In the matter between
SAOU obo GOLIATH, VERNON Applicant
and
DEPARTMENT OF EDUCATION-EASTERN CAPE Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 16 FEBRUARY 2022 & 9 JUNE 2022
DATE OF AWARD: 23 JUNE 2022
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether an Unfair Labour Practice has been perpetrated by the Employer due to non-payment of PMDS and or pay progression.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 16th of February 2022 and was not concluded on same date which then necessitated a further set down of the hearing on the 9th of June 2022.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down.
3. The Applicant was represented by Ms Van Wyk of the SAOU whilst the Respondent (Employer) was represented by Ms Stuckie
4. The parties advised that the matter pertained a claim for PDMS however the Applicant’s representative then clarified that the Applicant was actually claiming paid progression.
5. The parties had not filed a Pre-Arbitration minute however the parties confirmed that the matter is not complex and could be explained with sufficient particularity such that the matter can proceed.
THE ISSUES IN DISPUTE
6. I am to determine whether the Applicant was subjected to an unfair labour practice in relation to the non-payment of a paid progression to which the Applicant claims that he is entitled to same payment.
THE BACKGROUND TO THE DISPUTE
7. In these proceedings the Applicant referred a dispute pertaining to alleged unfair labour practice.
8. The Applicant is employed by the Respondent as an educational psychologist.
9. The Applicant claimed that since April 2019 he had submitted the necessary documentation to claim for pay progression and would be subject to a specific assessment process in terms of Collective Agreement No 3 of 2017.
10. The Applicant submitted that during April 2019 he and other colleagues submitted claims however his was not processed and paid or was rejected although it met the muster to satisfy the requirements.
11. None of the above was disputed by the Respondent rather the Employer explained that it relies on a report generated after the assessment as described by the Applicant.
12. The Applicant’s representative raised that considering there were no disputes of facts, can the matter proceed in the absence of viva voce evidence however rather that an explanation be tendered by both parties.
SURVEY OF EVIDENCE AND ARGUMENT
13. Before addressing the context of the referral in consideration of the cause of action, I shall first address the request by the parties to have the matter proceed in the absence of viva voce evidence.
14. After due consideration of the above in lieu of avoiding any delay of this matter, an ex-tempore ruling was made directing the parties to proceed with the matter in the absence of evidence however statements/ oral arguments would be presented addressing the legality of the matter.
15. Considering that no evidence was lead, I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
16. It is established in law that when a party refers an unfair labour practice dispute, same party bears the onus to prove on a balance of probabilities that such unfair labour practice exists and same is administered against them.
17. Considering this matter, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
18. Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to benefits, promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
19. The Applicant referred this dispute on account of section 186(2)(a) and furthermore relied on Collective Agreement No 3 of 2017.
20. In their submissions the Applicant explained that their dispute pertains to what is regarded as pay progression, a benefit envisaged within the abovementioned collective agreement.
21. The Applicant submitted that he was subject to the assessment and when considering the scores (results) thereof failed to understand why he was excluded from being granted the payment progression.
22. The Respondent commenced by explaining that they (the employer) rely solely on the results of the abovementioned assessment when considering payment progression as such unless the assessment results were being disputed or the capturing of the results was in question the employer cannot assist the Applicant.
23. Same Respondent placed on record that they are willing to reconsider the results and capturing in order to satisfy itself and the commission of the question whether or not the Applicant’s dispute has any merit.
24. The Respondent then conceded that there was an administrative error which effected the results as such conceded that the Applicant was entitled to the payment progression. Same Respondent requested that should an award be issued that it direct that the notch rectification (of 1.5 % of the Applicant’s Annual Salary) be done on the PERSAL system.
25. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
26. Considering the Respondent’s concession, It is not in dispute that the Applicant qualifies for the benefit in question which the Respondent has failed to furnish to Applicant. The Applicant has furthermore established that the Respondent is failing to comply with the applicable collective agreement.
27. I now turn to the relief sought and in this regard I refer to section 194 of the Labour Relations Act, 66 of 1995 which directs how a commissioner may address the question of compensation. In this regard section 194 (4). Is very important as it directs that compensation must be just and equitable in all circumstances.
28. The applicant made submissions pertaining to compensation and so did the respondent.
29. The parties accepted that considering how the respondent’s calculation is based on their PERSAL system, it would be the most accurate.
30. In the premises I make the following award.
AWARD
31. I find that the employee has proven that the Respondent has committed an unfair labour practice.
32. The Applicant is to be paid the necessary payment progression in terms of the notch of 1.5 % of his annual salary since date of default by the Respondent and the latter amount equates to Twenty-Eight Thousand, Nine Hundred and Thirty-Four Rands & Seventy-Five Cents (R 28 934,75).
33. The Respondent is further directed to place the applicant on the correct salary notch effective from the date of this award.
Yolisa Ndzuta
Panelist: ELRC
HELD VIRTUALLY
Case No. ELRC 597- 21/22 EC
In the matter between
SAOU obo GOLIATH, VERNON Applicant
and
DEPARTMENT OF EDUCATION-EASTERN CAPE Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 16 FEBRUARY 2022 & 9 JUNE 2022
DATE OF AWARD: 23 JUNE 2022
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether an Unfair Labour Practice has been perpetrated by the Employer due to non-payment of PMDS and or pay progression.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 16th of February 2022 and was not concluded on same date which then necessitated a further set down of the hearing on the 9th of June 2022.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down.
3. The Applicant was represented by Ms Van Wyk of the SAOU whilst the Respondent (Employer) was represented by Ms Stuckie
4. The parties advised that the matter pertained a claim for PDMS however the Applicant’s representative then clarified that the Applicant was actually claiming paid progression.
5. The parties had not filed a Pre-Arbitration minute however the parties confirmed that the matter is not complex and could be explained with sufficient particularity such that the matter can proceed.
THE ISSUES IN DISPUTE
6. I am to determine whether the Applicant was subjected to an unfair labour practice in relation to the non-payment of a paid progression to which the Applicant claims that he is entitled to same payment.
THE BACKGROUND TO THE DISPUTE
7. In these proceedings the Applicant referred a dispute pertaining to alleged unfair labour practice.
8. The Applicant is employed by the Respondent as an educational psychologist.
9. The Applicant claimed that since April 2019 he had submitted the necessary documentation to claim for pay progression and would be subject to a specific assessment process in terms of Collective Agreement No 3 of 2017.
10. The Applicant submitted that during April 2019 he and other colleagues submitted claims however his was not processed and paid or was rejected although it met the muster to satisfy the requirements.
11. None of the above was disputed by the Respondent rather the Employer explained that it relies on a report generated after the assessment as described by the Applicant.
12. The Applicant’s representative raised that considering there were no disputes of facts, can the matter proceed in the absence of viva voce evidence however rather that an explanation be tendered by both parties.
SURVEY OF EVIDENCE AND ARGUMENT
13. Before addressing the context of the referral in consideration of the cause of action, I shall first address the request by the parties to have the matter proceed in the absence of viva voce evidence.
14. After due consideration of the above in lieu of avoiding any delay of this matter, an ex-tempore ruling was made directing the parties to proceed with the matter in the absence of evidence however statements/ oral arguments would be presented addressing the legality of the matter.
15. Considering that no evidence was lead, I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
16. It is established in law that when a party refers an unfair labour practice dispute, same party bears the onus to prove on a balance of probabilities that such unfair labour practice exists and same is administered against them.
17. Considering this matter, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
18. Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to benefits, promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
19. The Applicant referred this dispute on account of section 186(2)(a) and furthermore relied on Collective Agreement No 3 of 2017.
20. In their submissions the Applicant explained that their dispute pertains to what is regarded as pay progression, a benefit envisaged within the abovementioned collective agreement.
21. The Applicant submitted that he was subject to the assessment and when considering the scores (results) thereof failed to understand why he was excluded from being granted the payment progression.
22. The Respondent commenced by explaining that they (the employer) rely solely on the results of the abovementioned assessment when considering payment progression as such unless the assessment results were being disputed or the capturing of the results was in question the employer cannot assist the Applicant.
23. Same Respondent placed on record that they are willing to reconsider the results and capturing in order to satisfy itself and the commission of the question whether or not the Applicant’s dispute has any merit.
24. The Respondent then conceded that there was an administrative error which effected the results as such conceded that the Applicant was entitled to the payment progression. Same Respondent requested that should an award be issued that it direct that the notch rectification (of 1.5 % of the Applicant’s Annual Salary) be done on the PERSAL system.
25. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
26. Considering the Respondent’s concession, It is not in dispute that the Applicant qualifies for the benefit in question which the Respondent has failed to furnish to Applicant. The Applicant has furthermore established that the Respondent is failing to comply with the applicable collective agreement.
27. I now turn to the relief sought and in this regard I refer to section 194 of the Labour Relations Act, 66 of 1995 which directs how a commissioner may address the question of compensation. In this regard section 194 (4). Is very important as it directs that compensation must be just and equitable in all circumstances.
28. The applicant made submissions pertaining to compensation and so did the respondent.
29. The parties accepted that considering how the respondent’s calculation is based on their PERSAL system, it would be the most accurate.
30. In the premises I make the following award.
AWARD
31. I find that the employee has proven that the Respondent has committed an unfair labour practice.
32. The Applicant is to be paid the necessary payment progression in terms of the notch of 1.5 % of his annual salary since date of default by the Respondent and the latter amount equates to Twenty-Eight Thousand, Nine Hundred and Thirty-Four Rands & Seventy-Five Cents (R 28 934,75).
33. The Respondent is further directed to place the applicant on the correct salary notch effective from the date of this award.
Yolisa Ndzuta
Panelist: ELRC