ELRC146-22/23WC

Commissioner: Gail McEwan
Case No.: ELRC146-22/23WC
Date of Award: 12 October 2022

In the ARBITRATION between:

SAOU obo SHANNA KRUGER
(Employees)

And

THE WESTERN CAPE DEPARTMENT OF EDUCATION
(Employer)

Union/Employee’s representative: Rudolph Baard (SAOU)

Employer’s representative: Alencia Vearey
 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

(1) Arbitration was held on 7 September 2022 and was heard virtually with the consent of the parties. Present was Rudolph Baard (SAOU) (Suid-Afrikaanse Onderwysers Unie) who represented Shanna Kruger (employee) who could not join due to power outages and connectivity issues. The Western Cape Department of Education (DOE) (employer) was represented by Alencia Vearey (labour relations officer) and later joined by Warren Siegers (assistant director Labour Relations). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 17 June 2022. These proceedings were digitally recorded.

THE ISSUE IN DISPUTE

(2) I am required to determine on a balance of probabilities whether the employer committed an unfair labour practice when Kruger was allegedly unilaterally told that she was erroneously paid her acting allowance during a period of approved sick leave plus when she had commenced her maternity leave and that therefore a net total of R14 568.87 would be recovered from her pay at the rate of R800.00 per month commencing in February 2022.

(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

THE BACKGROUND TO THE DISPUTE

(4) Kruger started working for the employer on 1 January 2017; was placed in an acting post as head of department (HOD) for the year of 2021; she earned R24 041.75 per month and claims she was subjected to an unfair labour practice when the DOE continued paying her the acting allowance during her period of sick leave from 26 July 2021 to 25 August 2021 plus during her period of maternity leave which commenced on 26 August 2021 until 25 December 2021. Kruger was then unilaterally advised in writing that an overpayment was made and that the DOE would be recovering this at the rate of R800.00 per month commencing 1 February 2022 until the total overpayment of R14 568.87 had been recovered. It is unknown how that total overpayment was calculated; how the amount of recovery was set at R800.00 per month and whether or not she should be paid the acting allowance for her period of approved sick leave.

SUMMARY OF EVIDENCE AND ARGUMENT

The parties combined version was as follows:-

(5) Baard explained that Kruger was appointed as acting HOD (level 2) from 1 January 2021 to the end of 2021. Kruger took a period of paid sick leave from 26 July 2021 to 25 August 2021 and then commenced her period of maternity leave with effect from 26 August 2021 to 25 December 2021. Kruger received a letter from the DOE which stated that there had been an overpayment of the acting allowance during the period July to October 2021. The overpayment had been stated as totaling R14 568.87 and this would be recovered at the rate of R800.00 per month from her salary. Kruger said that she had not been consulted in this regard and that it was the normal practice to first notify an employee of any overpayments; then consult with them in this regard and finally agree and implement how this money should be recovered. On 7 March 2022 Kruger had submitted a grievance in this regard which had not been handled within the three day period but was totally ignored. At conciliation held on 17 June 2022 the DOE was present but had no answers. Prior to arbitration SAOU made an attempt to hold a pre-arbitration meeting which was unsuccessful so Baard sent a pre-arb minute and got no reply from the DOE. Baard also sent emails to a number of people at the DOE trying to get some answers but to no avail.

(6) Vearey confirmed that the letter dated 18 January 2021 had been sent to Kruger but that she had no details to answer the questions being raised. Vearey was given time to find the answers and when this proved to be impossible she returned accompanied by Siegers. Siegers requested a postponement which request was denied. Instead we adjourned the arbitration for an hour to allow the DOE to find the answers required. On their return it was established that the acting allowance was R5357.75 per month. Siegers had been unable to establish how the total overpayment of R14 568.87 had been calculated; how they had arrived at a total of R800.00 per month to be recovered from the salary of Kruger and whether or not in terms of PAM that the acting allowance was paid during a period of approved sick leave.

(7) It was agreed that the parties would send the answers to the following questions together with their closing arguments to reach me by no later than 17h00 on 30 September 2022:

1. How was the total debt of R14 568.87 calculated?
2. How did the DOE arrive at an amount of R800.00 to be repaid per month when Kruger alleges (through her Union) that she was never consulted in this regard?
3. Kruger also took a period of sick leave from 26 July 2021 to 25 August 2021 and SAOU contended that the acting allowance as per PAM should be paid during a period of approved sick leave.
4. The total deductions made to end September 2022

(8) I agreed that there would be no order of costs unless that DOE missed the deadline for the submission of the answers to the remaining questions and their closing argument.

(9) The submissions and closing argument of the employee were as follows:-

1. On 04 March 2022, Kruger (employee) contacted SAOU regarding a notice she received from the DOE, her employer. The notice, dated 18 January 2022, informed Kruger that an overpayment of R14568.87 occurred regarding an acting allowance she received during 2021 and that she needed to repay this debt to the employer.
2. Kruger was on sick leave from 26 July 2021 (the start of the third term) until the start of her maternity leave on 26 August 2021. Kruger received the acting allowance until the end of October 2021. The overpayment was said to have happened from July 2021 to October 2021. The notice also informed Kruger that a monthly deduction of R800.00 would occur until her debt was recovered in full.
3. On 07 March 2022, Kruger lodged a formal grievance with the employer. Many attempts to convene with the employer were made without success.
4. On 31 May 2022, Kruger registered a dispute with the ELRC for conciliation. The conciliation hearing took place on 17 June 2022, but was unsuccessful.
5. Kruger again tried to resolve the matter with the employer – without success – as they would have had ample time to gather more information so as to have a meaningful discussion regarding the alleged overpayment.
6. On 05 August 2022, Kruger escalated the matter by requesting the matter be dealt with via arbitration which took place on 07 September 2022. At arbitration it became evident that the employer was unprepared and unwilling to come to the table. It was decided that both parties would submit their closing arguments by 30 September 2022 so that the Commissioner could make a fair decision.

(10) It is common cause that Kruger received an acting allowance of R5 375.75 per month during the time she was acting in the position of post level 2 HOD. According to the employer, an overpayment occurred over a period of four (4) months: 01 July to 31 October 2021. That equals an amount of R21 503.00 payable to Kruger before tax deductions. From the latest information provided by the employer (email dated 23 September 2022) it seems that Kruger has already paid R5 600.00 (R800.00 each month from 01 Feb. 2022 to 31 Aug. 2022). The employer, in their email, also made it clear that they made a mistake in their original determination, and that the overpayment should rather have reflected an amount of R4 774.70. Again, we have no information as to how this amount was calculated, but it seems like Kruger had paid R825.30 more than she should have done. The employer also concluded that they now owe Kruger an amount of R9 794.17 since they erroneously deducted a further amount of R8 968.87 while trying to rectify the original mistake. SAOU had been unable to confirm whether Kruger had in fact been paid an amount of R 9 794.17 by 28 September 2022.

(11) In conclusion Baard stated that the employer did not discharge their onus to prove they didn’t commit an unfair labour practice relating to Kruger’s benefit based on the substantive and procedural reasons discussed. Indeed, they failed to provide any real evidence or the necessary information during all stages of dealing with this matter – from the grievance lodged to arbitration – to amicably resolve it at the lowest level and in the shortest time possible. Kruger had been prejudiced in that she was never properly consulted, which led to unfortunate financial implications. The arbitrator is kindly asked to reasonably consider the relief claimed by Kruger: The employer should halt all/any further deductions from Kruger until such time that a final and accurate determination can be made as to the actual overpayment, if any. The employer must discuss and share all relevant information with Kruger and/or her Union regarding the overpayment, to ensure that it is calculated correctly before any further action is taken. If any further action is required the employer must properly consult with Kruger before implementation. Alternatively, SAOU asked that the entire amount of R14 568.87 be paid back to Kruger in full and it be determined that no overpayment occurred. SAOU only asked this due to the strain this process has placed on Kruger and the procedural unfairness of the employer in dealing with this matter. Therefore, Kruger prays that the arbitrator finds in favour of Kruger and awards her justly in accordance with the relief sought.

(10) Attached to the closing argument submitted by SAOU obo Kruger was an email that reads as follows:-

From: Chantal Adendorff
Date: 23 September 2022 at 1:58:12 PM SAST
To: Shanna Kruger
Cc: Graeme Murray; Gladys Mland, Collinah Mbopane
Subject: Kruger Refund - 56613393

“Dear Mrs. Kruger

Thank you for making time to take my telephone call.

The flow of events regarding the recovery of the overpayment is as follows:

1. An overpayment relating to an acting allowance received by you amounting to R21 503.00 (R5 375.75 x 4) was detected. An amount totaling R 14 568.87 after tax was referred to the Debtors section to recover.
2. A deduction for period February 2022 – August 2022 = R 5 600.00 (R800.00) was successfully received.
3. A further instruction was received on 09 September 2022 to reduce the amounting owing to R 4 774.70.
4. The amount owing to you after balance reduction is R 825.30
5. While cancelling the deduction on your salary, a technical error occurred and an amount of R 8 968.87 was deducted from your salary for the period 30 September 2022.
6. The full amount payable to you is now R 9 794.17.

The team is currently preparing a payment for you. Please confirm your banking details

The payment of R 9 794.17 should reflect in your account on Wednesday 28 September 2022.

Thanking you in advance

Kind regards

Chantal Adendorff
Deputy Director: Accounts
Directorate: Financial Accounting
Western Cape Education Department”

(11) The submissions and closing argument of the employer were as follows:-

1. It is common cause that the matter was conciliated and deadlocked on 17 June 2022 at the ELRC. The matter was referred to the ELRC to arbitrate an alleged Unfair Labour Practice. The matter appeared on the 07 September 2022 and was adjourned until 30 September 2022 in order for the respective parties to submit their closing arguments. Kruger was appointed as an educator on 01 January 2018, stationed at De Rust Futura Academia. It is common cause that Kruger accepted a nomination as an Acting Department Head at the above-mentioned school effective from 01 January 2021 until 31 December 2021. As Acting HOD, Kruger was entitled to an acting allowance of R5357.75 per month whilst fulfilling those duties. It is common cause that Kruger performed the duties of an Acting Department Head until the end of June 2021. Kruger was absent from work due to medical illness, followed immediately thereafter with maternity leave. According to our records Kruger was on sick leave from 14 July 2021 until 25 August 2021, her maternity leave commenced on 26 August 2021 until 21 December 2021 and she was paid the acting allowance during the above period of absenteeism (addendum A). On 22 October 2021, Mr Theunis, the Principal at De Rust Futura Academia reported to the Directorate: Service Benefits that Kruger was no longer the Acting Department Head and therefore she was not entitled to the acting allowance paid to her from 01 July 2021 until 31 October 2021. The principal indicated that another educator Ms Schippers was nominated as the Acting Department Head as from 01 July 2021 until 31 December 2021 and Ms Schippers was entitled to an acting allowance for the above-mentioned period. The principal instructed the Directorate: Service Benefits to stop the payment of the acting allowance to Kruger and he instructed that the payment of the acting allowance from July 2021 to October 2021 be recovered from Kruger. Resultant from the above action by the principal, an overpayment of R14 568.87 occurred in respect of payment of the acting allowance and said overpayment was to be recovered by way of deductions from Kruger’s salary.
2. On 07 March 2022, SAOU on behalf of Kruger lodged a grievance directed at Ms Celeste Pierce (Director at Service Benefits). The grievance process was referred to the Directorate: Employee Relations. Warren Siegers and employee Relations engaged with the relevant role players to gather the facts and necessary information to resolve the grievance amicably. On 14 April 2022 Pierce informed Siegers that the grievance ought to have been filed with the Principal at De Rust Futura Academia since he is the direct supervisor of Kruger and that the instruction to deduct originated from him per sé. The grievance ought to have been referred to the closest point of origin (principal), the grievance may have been resolved if the above route was followed.
3. As part of the arbitration process certain questions were posed to the DOE to enable the Commissioner to make an informed decision.
• What was the amount of the acting allowance paid per month to Kruger? The amount of the acting allowance was R5 375.75 per month.
• The acting allowance was calculated in accordance with Chapter C.4 of PAM (2016). In accordance with this provision, the acting allowance was calculated by determining the difference between the current notch of R284 238.00 as of January 2021 as an Educator and the difference of the minimum of the notch of the Head of the Department of R348 747.00 as on 1 January 2021, which amounted to R5 375.75. The calculation of the overpayment of the acting allowance was based over the period from July 2021 until October 2021. The calculation was done in accordance with the instruction of Theunis (principal.) The above timeframes on which the calculations were based included the period Kruger was on approved sick leave from 14 July 2021 until 25 August 2021, as well as the period Kruger’s maternity leave commenced which was from 26 August 2021 until 31 December 2021. Thereafter payment of the acting allowance to Kruger was stopped as per the instruction of the principal. It is respectfully submitted that an error occurred in determining the period over which the actual overpayment of the acting allowance was calculated.
• The DOE erred in including the approved sick leave period as part of the calculation as Kruger was entitled to the acting allowance whilst on sick leave. Sick leave is an unforeseen event, and an employee cannot be penalised by losing a benefit the employee would otherwise be entitled to. The calculation of the overpayment of the acting allowance ought to have been based on the period Kruger was on maternity leave and the sick leave period should have been excluded from the calculations. Kruger was not entitled to the acting allowance paid to her whilst on maternity leave from 26 August 2021 until 31 December 2021.
• How was the amount of the overpayment calculated? The amount of R14 568.87 was calculated as follows:
R 5 375.75 x 4 months (from July 2021 to October 2021) = R 21 503.00 - (minus) R 6934.13 (Income Tax adjustment) = R14 568.87 [Addendum C1-3]
New calculation:
Your attention is drawn to the formula as per Addendum C4-C11. An amount of R9 794.17 was paid to Kruger on 28 September 2022 [Addendum F1-F2]. It is respectfully submitted that the above calculation occurred in error as far as the applicable timeframe is concerned. The calculation of the overpayment of the acting allowance should have been calculated for the period affected by maternity leave only, which was from 26 August 2021 until 31 December 2021 - the period applicable to sick leave ought to have been excluded from the calculation.

(12) The issue of procedural fairness was raised by Kruger and the assertion is whether the DOE failed to properly consult with Kruger regarding the overpayment and deduction of R800.00 per month from Kruger’s salary to recover the debt. SAOU obo Kruger indicated that no such consultation or agreement was reached between Kruger and the DOE acted arbitrarily in respect of the recovery of the debt and deducting money from Kruger’s salary in monthly increments of R800.00. The Directorate: Employee Relations engaged officials from the Directorate: Financial Accounting to ascertain about the consultation process implemented in respect of Kruger; the name of the official that consulted with Kruger is Ms Bredenkamp in respect of deducting an amount of R800.00 per month from her salary was requested and a copy of the written agreement in which the parties consented to the above deduction from the salary of Kruger was requested. The Directorate: Employee Relations was informed that the Directorate: Financial Accounting is guided by DOE Debt policy. No further information was provided. The Directorate: Employee Relations requested that DOE Debt policy be made available however no such policy document was forthcoming from the officials from that Directorate. The investigation yielded a letter dated 07 December 2021 which was sent to the residential address of Kruger informing her that an overpayment in her salary occurred [Addendum D]. A letter dated 18 January 2022 was addressed to Kruger with the heading “Repayment of Debt”. It was sent to the school address; according to this letter Kruger was notified that a debt occurred in respect of an overpayment of an acting allowance and that such debt would be deducted in monthly instalments of R800.00 until the debt had been recovered. [Addendum E1] During the arbitration proceedings on 07 September 2022 SAOU informed the parties that the above letter was received by Kruger on 03 March 2022, however this statement could not be verified. [Addendum E1-3].

(13) Although it is unclear whether Kruger was consulted by a DOE official before deductions were made, the above letters are indicative that the DOE effectively communicated with Kruger before deductions were implemented. Furthermore, the Directorate: Financial Accounting indicated that the deductions were made in terms of section 38 of the Public Service Act 4, read in conjunction with the Provincial Treasury Instruction 11.3.1.5.

(14) In conclusion DOE is thus of the opinion that the employer did not commit an unfair labour practice and that the claim of unfair labour practice must be dismissed. The DOE agrees with Kruger that deductions in respect of the acting allowance whilst on sick leave occurred in error. Furthermore, it is respectfully submitted that Kruger was entitled to her acting allowance while on sick leave. The DOE agrees with Kruger that she was not entitled to an acting allowance while on maternity leave. The deductions should be made in respect of her maternity leave period from 26 August 2021 until 21 December 2021. Kruger was reimbursed fully with payment of an amount of R9 794.17 on 28 September 2022. It is the writer’s humble submission that the dispute has been resolved. [Addendum F1 -2]

(15) I sent the response of the employer to SAOU and allowed them seven days in which to respond. Their response received is summarised hereunder:-

a. The principal had an obligation to report any changes to the acting position.
b. We accept that the principal gave an instruction to the DOE to (i) stop further payments of the acting allowance to Kruger; (ii) recover the allowance already paid to Kruger (overpayment); and (iii) to pay the allowance to someone else instead.
c. However, the school principal, as the head of the institution and the manager of Kruger, does not hold the necessary authority to give such instructions to the Directorate: Service Benefits.
d. Service Benefits, on behalf of the DOE may consider the recommendation of the principal and the SGB in such circumstances, but ultimately needs to take all factors, policies, terms and conditions into consideration before taking a final decision. As the employer, they have this discretion.
e. The fact is that the DOE allowed the principal to call the shots and did not properly weigh all relevant factors before following the orders of the principal.
f. Service Benefits is responsible for determining whether an overpayment occurred or not and they do so on behalf of the DOE.
g. As previously stated, the principal could not make such a determination and could also not give any instruction to recover such an overpayment.
h. The school could only recommend another candidate to act in the post.
i. Therefore, it is our submission that the closest point of origin to the issue was Service Benefits – to whom the grievance was referred to and where it should’ve been dealt with. Kruger did not err in submitting the grievance with them instead of at school level.
j. By conceding that an error occurred in determining the period over which the actual overpayment occurred – a function for which Service Benefits is responsible – the DOE is conceding to the fact that this is where the grievance should’ve been dealt with.
k. While the letter may list the residential address of Kruger, no evidence was lead and no witnesses called to testify during the arbitration process in support of the DOE’s claim that Kruger received the letter, nor that she took note of its contents. Kruger was not afforded an opportunity to take the letter under cross-examination, to confirm the address given as her own or to provide comments on it.
l. Since lodging the grievance and dispute, Kruger consistently stated that she was not consulted on the amount of R800.00 payable per month and did not give her consent to the DOE to deduct it in February 2022 before she finally received a letter on 03 March 2022.
m. It is SAOU’s humble submission that, while the overpayment regarding Kruger’s acting allowance during her sick leave has been resolved, the DOE still treated her unfairly by: (1) Not properly consulting with Kruger prior to deducting money from her salary; (2) Not following their own internal grievance procedures within the prescribed timeframes; and (3) Not being prepared at conciliation nor arbitration to resolve the matter.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

(16) Section 186(2) (a) of the Labour Relations Act 66, 1995 (“the LRA”) provides, inter alia that the unfair conduct of an employer relating to the provision of a “benefit” to an employee constitutes an unfair labour practice. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (“Appollo Tyres”) the LAC adopted a far wider interpretation. It rejected the view that a benefit was limited to contractual or statutory entitlement in the following terms –“In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment 'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion.” In this matter the term benefit applies to the acting allowance granted to Kruger for 2021.

(17) I find in the circumstances, on a balance of probabilities, that the DOE committed an unfair labour practice when they mishandled what they initially calculated as overpayments which in the end was completely recalculated and rectified as at 28 September 2022. The important thing in this case is that it brought certainty to Kruger and gave her financial relief for the over deductions made. I gave my word that no order of costs would be ordered in this matter with the proviso that the DOE made their deadline of 30 September 2022 to explain in detail the answers to the questions raised together with their closing argument. There is therefore no order of costs. The acts and omissions of the DOE constitute and unfair labour practice towards Kruger.

(18) It is unacceptable that the DOE had not dealt with the grievance submitted by Kruger at all – never mind within the time frames. Further that the DOE were contemptuous of the ELRC proceedings in that a representative attended conciliation on 17 June 2022 without seemingly having done any preparations. This again was evident when the DOE representative at arbitration on 7 September 2022 had also seemingly come unprepared. During the period given to the representative to find the answers it was reported back that they had been unable to find any of the answers required. This resulted in another DOE representative joining arbitration and requesting a postponement. Postponements are not there for the asking and will / should only be granted in exceptional circumstances which in this instance had not been present and hence the postponement had been denied. In order not to further waste the resources of the ELRC both parties agreed to conclude this arbitration by means of written submissions. In this matter it was possible to do so given that the bones of the matter were common cause and only specific questions needed to be answered by the DOE. I thank both parties for their cooperation in this regard.

(19) During the time frames agreed by the parties, primarily the DOE, it was uncovered that Kruger should have been paid the acting allowance during her period of approved sick leave and that the overpayment should only have been calculated for the period of her maternity leave. This realization resulted in a re-calculation of the overpayments of the acting allowance which it is trite that the DOE were allowed to have recovered by consulting with Kruger regarding the recovery of the overpayments. How this was actually done has not exactly been proved in the absence of Kruger and any witnesses the DOE may have wanted to call.

(20) All these investigations confirmed the over recovery of money by the DOE from Kruger. The DOE then when making the adjustments and arranging the re-payment of the excess recovered by the DOE a further error was made which gratefully seems to have been able to be corrected in the payment made to Kruger on 28 September 2022.

(21) All these errors and lack of communication between various departments within the DOE and Kruger herself were dreadful for Kruger to have had to have endured for so long. What should have been corrected within the seven months from the first deduction to the date of arbitration was not and yet when pressure was applied it seems miraculously all the answers and more were able to have been sorted out within twenty three days (from 7 September 2022 to 30 September 2022). This is a dispute which, had the proper attention been paid to the grievance, conciliation and arbitration should have been settled.

(22) Having found that an unfair labour practice occurred I believe it is fair to award Kruger a solatium (which is compensation for pain and suffering caused by a wrongdoing) of an amount of R5 000.00 (five thousand rand) which the DOE are ordered to pay to Kruger by no later than 31 October 2022.

AWARD

(23) I find on a balance of probabilities that the Western Cape Department of Education committed an unfair labour practice in the acts and omissions when dealing with the overpayment of the benefit of an acting allowance to which Kruger was entitled to be paid during 2021 other than during her period of Maternity leave. Gratefully the calculations have been done and the over deductions rectified.


(25) In this matter I believe it would be fair to award a solatium of R5000.00 (five thousand rand) to Kruger for the acts and omissions of the DOE over the extended period of time. This amount is to be paid to Kruger by no later than 31 October 2022.

Gail McEwan
COMMISSIONER