ELRC1022-21/22 EC

ARBITRATION AWARD

Case Number: ELRC 802-20/21 KZN
Commissioner: Nonhlanhla Dubazane
Date of Award: 28 October 2022

In the matter between

LUNTU NOCHA
(Union/Applicant)

And

DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard on 3 June 2021, 7 July 2021, 2 August 2021, 1 October 2021, 19 April 2022, 11 August 2022, 3 October 2022 respectively under the auspices of the Education labour Relations Council. Proceedings at Dainfern, Ashville, Durban. The proceedings were also conducted via Zoom.

2. The Applicant, Mr Luntu Nocha was present and represented initially by Miss Sibahle Gwala, a NEHAWU official. He represented himself in the last 3 sittings The Respondent, Department of Higher Education and Training (KZN) was represented by its ER Manager, Mrs NP Gcumisa.

BACKGROUND TO THE ISSUE

3. Mr Nocha started working for the Respondent on 27 July 2006 as an educator.
4. He referred a dispute relating to failure to pay any amount owing in terms of section 73A of the BCEA to the ELRC.
5. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.
6. Arbitration proceedings took place on the dates aforementioned.
7. The Applicant averred in his opening statement that he was underpaid by the Respondent.
8. The Respondent submitted that the Applicant was paid correctly and he is the one who is owing the College monies due to overpayments.
9. The relief he is seeking is payment of monies due and owing to him due to the underpayment.
10. Parties submitted Annexures A – G.

4. SURVEY OF EVIDENCE AND ARGUMENT

Common cause facts

1. He did not produce his certificate of the national diploma when he was appointed and he was therefore paid as the underqualified lecturer.
2. He applied for an upgrade in November 2006 which was processed after he obtained his M + 3 qualification.
3. It reflects in the Supplementary Table which was prepared and presented by both parties that Mr Nocha was paid according to the correct scales from August 2006 to June 2010.These are:
August – December 2006 R79914
January – June 2007 R79914
July – December 2007 R85908
January – June 2008 R86 388
July – December 2008 R95460
January – June 2009 R95460
July – October 2009 R106917
November – December 2009 R106917
January – June 2010 R106917
July – September 2010 R114936
October 2010 R152016
November – December 2010 R152016

4. Both parties produced payslips belonging to Mr Nocha yet part of the information reflecting in both is different despite that they cover the same period 2006 to 2010.
5. Mr Nocha also received cheque payments from the Respondent during the period in question.


Applicant’s case

6. Mr Luntu Nocha took an oath and gave the following evidence:-In summary and of importance in this case he stated that he possesses National Diploma in Public Management M + 3 qualification and B Tech Honours degree which he obtained in September 2010.
7. He wrote emails raising the issue of underpayment with the Respondent on several occasions. It transpired that there were people who were saying that he owed the Respondent the amount +/- R700 which he disputed. He then escalated the matter.
8. The Respondent did not pay his salary according to the correct scales appearing on pages 1 – 11 of Annexure B for the period 2006 to 2010. He was not paid shortfall of his salary in the amount of R129 170.69.
9. Under cross examination he stated that his knowledge is that salary notch changes with the increments.
10. He conceded that there are four instances when the notch will change, namely, with pay progression normally on 1 July, with cost of living adjustment normally on 1 April, when the REQV level changes, and also as a once off Specific Occupation Dispensation (OSD) adjustment.
11. He disputed that the income back payment affects the notch of the previous month when one receives it.
12. He conceded that he received income back payment in the amount of R3801.20 appearing on the payslip on page 2 of Annexure E but went on to say that the period for which the payment was made is not reflected in the payslip.
13. He had no knowledge what the amount of R751.70 reflecting on the payslip on page 4 of bundle dated 2008 represents and he could not recall if he received that amount or not.
14. He could not confirm if he received the income back pay in the amount of R7159 reflecting on the payslip on page 3 of Annexure C. He could not confirm either if the said payslip belongs is his.
15. He could see the OSD income in the amount of R10624 reflecting on the document on page 4 of Annexure C.
16. There are a number of discrepancies regarding payments that were made to him by the Respondent. For example, the payslip the Respondent presented dated November 2006 and appearing on page 4 of Annexure C reflects a figure of R5747.94 yet the payslip which he presented dated November 2006 reflects a figure of R3801.12.
17. He conceded that it reflects in his bank statement: on page 2 of Annexure D that an amount of R1946.82 was paid into his bank account on 10 November 2006; an amount of R3801.12 was paid on 16 November 2006, and the total of the two amounts is R5747.94.
18. Another example of a discrepancy appears on the payslip on page 40 of Annexure C where it reflects an amount of R11366.06 was paid for the month of November 2009, however on page 2/2 of his bank statement it reflects payment in the amount of R7630.67 was made on 16 November 2009. A nett payment of R7630.67 reflects on payslips appearing on page 39 of Annexure C and page 6 of Annexure D respectively. His bank statement is complete and covers the period November to 16 December 2009.
19. He received the amount of R23800.54 reflecting in the payslips on page 7 of Annexure D and page 47 of Annexure C respectively for the month of June 2010. The amount did not represent his normal salary.
20. He disputed that the amount of R10624.00 described as OSD back payment on the payslip appearing on page 47 of Annexure C represented back payment to adjust the notch. He said that the description ‘’back pay’’ does not reflect on the same payslip yet it reflects on the other payslips. He was not certain which month the said amount covers but he was also receiving compensation for lecturing duties that he was conducting then. It reflects in the payslip appearing on page 57 of the same bundle ‘’income back pay’’ and therefore the amount of R10624.00 could just have been an adjustment amount and not his back pay. He only received OSD income in the month of June 2010.
21. His salary for the months of May and July 2010 was the same. Reference is made to the payslips appearing on pages 46 & 48 of bundle C reflecting the amount of R8861.00.
22. He received the nett payment of R8124.07 which appears on page 25 of Annexure C. The amount includes the increase of R751.70. It seems the amount does not affect the notch, because he was paid R8124.07 in August 2008 and was paid less in September 2008 when he received the amount of R7910. He received same salary in August and September 2008 i.e. the amount of R7910.70.
23. He received cheque payment in the amount of R11923.13 reflecting on the cheque stub on page 3 of Annexure E but it confuses him that it is two amounts of R7159.00 which reflect on the payslip on page 3 of Annexure C, and one amount is described as the income back pay. The payment of R11 923.15 does not give the total of the two amounts, and also it is different from the amount reflecting in his bank statement. There is a difference of two cents in the payslips appearing on pages 1 to 3 of Annexure C and that makes him wonder. It looks like the documents which the Respondent presented at arbitration were prepared for this case at hand.
24. He received the amount of R17 072.75 which appears on page 5 of Annexure C. His assumption is that the amount includes part time work income because it is not stated in the payslip what it represents, and also there is income bonus reflecting thereon.
25. He was not paid according to the FET Act and Personnel Administrative Measures (PAM) document for the period August 2006 to March 2007. The PAM document was not in existence to balance the adjustment at the time.
26. His salary was increased to R6659.50 in the months of January to June 2007 but he did not know the reason for the increase.
27. He conceded that: he received back payment covering the period August 2006 to December 2006; his salary was adjusted accordingly then; there was an overpayment of R419.70 that was made into his bank account in December 2009.
28. Mr Nocha also stated that the Respondent owes him R37429.00 and he gave the breakdown of how he arrived at that figure.
29. He conceded that, excluding the amount of R3 801.20, his claim for the period ending in November 2009 is R16 673.24.
30. He testified further: that in July 2010 the Respondent claimed it paid him R8442.41 but the amount he received in his bank account is R7742.41; in June 2008 the Respondent claims it paid him R11057.29 but the actual amount that was paid into his bank account is R10120.16; in August 2010 the Respondent claimed to have paid him R9756.59 but the actual amount that was paid to him is R9056.59. He did not include the difference in the amounts in his initial calculation because payslips reflect different amounts.
31. On re – examination, he stated that he got the payslips from the Respondent and he did not see the reason for the discrepancies. It is possible that he was supposed to be paid the amounts reflecting in the payslips that the Respondent presented. Those amounts are higher than what he was paid.

Respondent’s case

32. Thabani Xaba testified as the Respondent’s first witness. He informed us that he is the senior administration clerk at the College and the College owes Mr Nocha.
33. Penelope Sindisiwe Msomi gave the evidence as the Respondent’s second witness. She stated that: she occupies a position of Assistant Director: Human Resource and Development at the College. The document appearing on page 12 of Annexure B is the schedule the Respondent prepared to analyse payments which were made to Mr Nocha. The notches employees are paid are from the Respondent’s PAM document and also the ELRC Collective Agreement.
34. The calculations in this case were made using the information in Mr Nocha’s payslips. The information was extracted from the College system.
35. They looked at what was paid and what should have been paid to Mr Nocha beginning 2007. They did not look at year 2006. The schedule on page 12 shows notches that were paid including the salary adjustments that had to be done and were done.
36. The schedule does not reflect back payments that were made to Mr Nocha in 2006. Records show that Mr Nocha did not a produce qualification in order to be paid a salary for an educator with M + 3 qualification when he joined the Respondent. He was appointed at REQV 10 and paid at salary notch R47424.
37. Mr Nocha’s salary notch was adjusted to R79914 which is M+3 (REQV 13) in December 2006. He was paid back payment dating back to his date of appointment. The adjustment is not shown in the schedule.
38. Msomi then explained the contents of the schedule, the adjustments and payments which were made to Mr Nocha, and the implementation of the OSD in 2010 going backwards. She said that the notch amounts reflecting on the schedule are inclusive of all statutory adjustments that were implemented, namely, pay progression, cost of living adjustment, OSD adjustment and the REQV qualification adjustment.
39. She further stated that: the OSD gives the correct information. In April 2008 Mr Nocha was paid by the College R94928.04 as the notch changed because of the cost of living adjustment. The OSD translation shows that the notch should have been R89892 which left Mr Nocha owing the College as he was overpaid. There was an overpayment of R419.70 that was made to Mr Nocha for the period up to December 2008.
40. In terms of the SOD the notch should not have changed but remained at R89892 in April 2009. There was cost of living adjustment which resulted in the overpayment in the sum of R1370 made into Nocha’s bank account in the months of April, May, June 2009.
41. There were periods when Mr Nocha was underpaid and overpaid, and also periods when he was paid accurately as per the OSD. If one looks at the overall period, the Respondent does not owe him.
42. Msomi explained the implication of using notches without considering back payment or adjusting payments. She said that, when that happens, the correct notches or salary payments will not be reflected.
43. She explained further that: salary adjustments are not done on the month of the effective date, however, payslips are issued to employees during the negotiations and these payslips reflect the notch before the adjustment is made; the system will the backdate, payment calculated and made to the employee’s bank account once the adjustment is implemented and backdated; the employee will certainly think he was underpaid if he or she looks at the information in his old payslips and does not consider the adjustment; There must be a salary adjustment with back payment.
44. She also stated that back payments reflected on the payslips on pages 1 – 15 of Annexure C and on pages 1 – 3 of Annexure E were made to Mr Nocha and these were adjusting his salary and notches accordingly.
45. She said that all salary adjustments, namely, cost of living, OSD, qualification and pay progression must be considered in this case.
46. Under cross examination, she stated that she is responsible for human resource management and development functions at the College, which also includes payroll management.
47. Other factors were considered to determine on which notch to place Mr Nocha when the OSD was implemented and the Collective Agreement No.1/ 2010 was a guiding document. The implementation measures and different lecturer categories appear on pages 21 to 23 of Annexure B. Mr Nocha’s OSD was implemented in terms of clause 4.3.1(a) of the same Collective Agreement appearing on page 21 of Annexure B, and the notch was adjusted to R85908 in July 2007. Mr Nocha was paid on notch 60 at R85908.00 for the period July 2007 as per the contents of the Table on page 3 of Annexure B. That was the correct notch.
48. There was loan maintenance hence there is a difference of R700 in the payslips appearing on pages 3 & 4 of Annexure F for the month of August 2010. The correct amount of R9056.59 was therefore deposited into Mr Nocha’s bank account after deducting the amount of R700 for maintenance.
49. There was a tax deduction of R937.13 in the month of June 2008 and it appears on the payslip on page 11 of Annexure F. The same amount does not appear on the payslip on page 10 of the same bundle which reflects payment in the sum of R11057.29. The difference justifies payment in the sum of R10120.16 that was deposited into Mr Nocha’s bank account. There was therefore no underpayment in the month of June 2008.
50. It was in error that back payment that was made in December 2006 covering a period 5 months in the sum of R13626.51 was recorded as ‘’income part time’’. She disputed that the said amount represented Mr Nocha’s part time salary.
51. Mr Nocha received back pay in the amount of R2658.32 as reflected in the document on page 3 of Annexure G. The increase was for the period September to November 2010. Employees get salary adjustments when they upgrade from REQV13 to REQV14, they get a once off payment when upgrading from REQV14 to REQV15 and also from REQV15 to REQV16. They do not get both the salary adjustment and once off bonus. The adjustment was made in December 2010 and therefore changes would only reflect in the payslip for the month of January 2011.
52. The ELRC Collective Agreement no.1 of 2010 came into existence in 2010. There was no Collective Agreement in 2008. The College paid Mr Nocha on the notch of R95460 in 2010.

Arguments

Applicant’s argument


53. The Applicant argued, amongst other things the following: The Respondent failed to explain why or how the amounts appearing on the payslips differ with the amounts that were paid to him, and also to explain the criteria that was used to pay his salary.
54. The Respondent’s evidence in terms of scales was misleading. It deliberately referred to the wrong reference numbers for the scales i.e. REQV 13 and REQV 14.
55. There was no evidence that he was paid for his qualification (REQV14).
56. The monies that were paid to into his bank account in June, November & December 2010 represents compensation for part lecturing work and that is clearly stated on the pay slips.
57. The Respondent’s witnesses were not credible and consistent, theirs were bare denials without providing supporting documents.
58. The Respondent failed to prove its claims.
59. The Respondent deliberately misled the arbitration by producing pay slips that are not a true reflection of the amounts of monies that were paid into his bank account.
60. The Respondent failed to explain the discrepancies in the payslips.
61. It is clear that the approach of the Respondent was bias ab-initio because, from the onset, it concluded that the Applicant was paid, but failed dismally to produce the necessary supporting evidence.
62. He has suffered serious prejudice as his financial obligations, medical needs and family responsibilities have been impacted as a result of the unfair practice by his employer.
63. He seeks compensation as a remedy.

Respondent’s argument

64. The Respondent argued, amongst other things the following: The Applicant was paid his salary accordingly and there was not a single month when he was not paid according to the correct scales.
65. The Applicant was just taking chances, trying his luck by referring the dispute to the ELRC.
66. The Applicant would have been able to explain how he arrived at the amount of R129170.69 as the value of his claim if he was underpaid, and also he would not have misled the arbitration by testifying that he never received any back payments to adjust his notch and salaries, and later changing the statement to that some of back payments were made to him and he was not certain if he received some.
67. The Applicant was not honest and his evidence cannot be trusted. He was prepared to do and say anything in order to get some cash payment.
68. Its witness was a credible and reliable witness.
69. The Applicant did not prove the underpayment he is claiming.
70. The amount owing to the Applicant is R3081.58.

ANALYSIS OF EVIDENCE AND ARGUMENT

71. I have examined the evidence submitted by both parties and have duly perused submitted annexures. The enforcement of statutory payments is governed by Section 73A of the BCEA.
72. The Applicant argued that the Respondent has failed to pay him monies due and owing to him.
73. I am required to determine whether the Respondent failed to pay the Applicant monies due and owing to him during the period 2006 to end December 2010.
74. Both parties submitted that the Applicant was paid according to the correct salary scales during the period inn question, and also that the Respondent admits owing him an amount of R3081.58. Reference is made to the Supplementary Table which both parties prepared and submitted on 5 October 2022 to the council in this regard.
75. The Applicant conceded having received some back payments from the Respondent during the period in question.
76. It confirmed and it also became apparent during the Applicant’s cross examination that the amounts he is claiming are due and owing to him are R16673.24 representing the underpayment during the period 2006 to December 2009 + R3801.20 the amount which the Respondent admitted is owing + R1400 representing the underpayment in July and August 2010. He arrived at these figures based on the calculations he did, comparing figures in his payslips with the monies he received in his bank account.
77. Based on the evidence I accept the Respondent’s version as plausible that: a tax deduction of R937.13 was made from the Applicant’s salary in the month of June 2008; there were overpayments of R1370 that were made into the Applicant’s bank account in the months of April, May, June 2009, and another in the amount of R419.70 that was made in December 2009; and also a deduction in the amount of R700 representing loan maintenance was also made from his salary for the month of August 2010.
78. The total amount of overpayments is R4529.70.
79. Section 34(5)(a) of the BCEA stipulates that an employer may not require or allow an employee to repay any remuneration, except in the case of overpayments previously made by the employer due to an error made in the calculation of the employee’s remuneration. The Respondent stated that in terms of the SOD, the notch should not have changed but remained at R89892 in April 2009, there was cost of living adjustment which resulted in the overpayment in the sum of R1370 made into the Applicant’s bank account in the months of April, May, June 2009.
80. In the absence of the evidence to the contrary, I accept the Respondent’s evidence as satisfactory that the overpayments to the Applicant were as a result of the error in calculation of his remuneration.
81. There was no evidence led / submissions made by the Applicant that the two deductions were not justified.
82. The Applicant said that the amount of R11 363.06 reflects in the November 2009 payslip yet he received only the amount of R7 630.67. Based on the figures reflecting in his payslip and the amount he received in his bank statement, I conclude that an amount of R3732.39 is due and owing to the Applicant, in the absence of proof that the said amount (R3732.39) was paid into his bank account or that the deduction of that amount from his salary was justified.
83. It is common cause that there are discrepancies in the set of payslips which were presented by both parties covering the period in question.
84. The Applicant produced bank statements to support his claim. On the other hand, the Respondent did not produce proof of payment of the monies, which reflect in the payslips it presented, into the Applicant’s account. There is a challenge with the payslips it presented, in so far as the information appearing thereon differs from that in the payslips which he presented.
85. The Applicant’s evidence that he received the payslips from the Respondent was not challenged. The authenticity of the payslips which he presented was also not challenged. The question I ask myself is ‘’why are there discrepancies in the payslips generated by the same Respondent’s system?’’ The Respondent gave no explanation / satisfactory explanation for the said discrepancies. My view is that the Respondent, being the source of all payslips and supporting documentation, was in a position to produce proof of payment that corresponds with the figures on the payslips it presented but it did not.
86. The evidence of the Respondent’s witness, Miss Msomi concerning payments that were made to the Applicant, except for the overpayments, was not supported by any documentation. The payslips produced by the Respondent did not assist either. The Respondent could have produced other documents to prove that the Applicant received all monies due and owing to him during the period in question but it did not. The Respondent’s evidence was also inconsistent in so far as, on one hand, it submitted that the Applicant was paid all monies due to him, and on the other hand it was its evidence / submissions that the amount owing to the Applicant is R3081.58.
87. Based on the evidence, I am led to conclude that the Applicant’s claim is R21 874.44 which is the total of the amounts highlighted in bold above i.e. R16673.24 + R3801.20 + R1400.00 minus the overpayments (R4529.70), minus tax deduction made in June 2008 (R937.13), and minus loan maintenance deduction made in August 2010 (R700): R21874.44 – R6166.83 =R15707.61
88. In the absence of proof that the monies constituting the correct claim were actually paid into the Applicant’s bank account, I therefore conclude that these monies are due and owing to the Applicant by the Respondent.
89. In terms of section 32(2) of the BCEA the employer is required to pay remuneration to an employee no later than 7 days after the completion of the period for which the remuneration is payable; or the termination of the contract of employment.
90. In the circumstances I find that the Respondent contravened the BCEA by failing to pay the Applicant the arrear salary. The appropriate remedy will be to order the Respondent to pay the Applicant the amount of R15707.61 which represents the underpayment of his salary during the period 2006 to December 2010.

AWARD

I make the following award:

4.1 The Respondent, namely, Department of Higher Education and Training KZN contravened BCEA by failing to pay the Applicant, L Nocha his outstanding salary for the period 2006 – December 2010.
4.2 The Respondent is ordered to pay the Applicant his arrear salary in the amount of R15707.61.
4.3 The amount stated in 6.2 above shall be paid to the Applicant’s bank account on or before 25 November 2022.

Nonhlanhla Dubazane
ELRC Senior Commissioner