ELRC428-22/23NW

IN THE ELRC ARBITRATION
BETWEEN:

SAOU obo Ouberholzer, Gerrie “the Applicant”
and
DEPARTMENT OF EDUCATION – Northwest “the Respondent”

DEFAULT AWARD

Case Number: ELRC428-22/23NW

Arbitration date: 15 November 2022

Date of ruling: 27 November 2022

Pitsi Maitsha
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. On 15 November 2022 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations Act, 66 of 1995 as Amended “The Act”.

2. The applicant is Mr. Gerrie Frederik Ouberholzer, and he was represented by Mr. Andre Pretorius, the Assistant Provincial Secretary from SAOU. The respondent is the Department of Education: North West and they did not attend the proceedings.

3. I perused the file and established that the respondent was notified by email sent on 14 October 2022. I am therefore satisfied that the Respondent was duly notified of the hearing and, in terms of section 138 (5) (b) (i) of the “LRA”, I continued in default.

ISSUE TO BE DECIDED

4. I am required to determine whether the conduct of the respondent not to pay the applicant acting allowance constituted unfair labour practice. If so, make an appropriate order.

BACKGROUN DETAILS

5. The applicant was appointed by the respondent in 1991 as Post Level 1 Educator and he is currently the Principal at Laerskool in Rustenburg.

6. He was appointed as the Acting Principal from 1 January 2022 until 30 September 2022.

7. Subsequently, he was not paid the acting allowance for the period July and August 2022. The respondent owes him R18 249,50 for a period of two months which is unpaid. He is seeking the acting allowance to be paid.

THE EVIDENCE OF THE APPLICANT

8. The applicant testified that he studied BSC degree with the University of Free State and the subjects included were Mathematics I and II, but he did not complete the degree. He is currently studying B. Ed degree with University of Northwest, and he is on third year of his studies.

9. He testified that he did work as Acting Principal for July and August 2022, but he was not paid acting allowance.

ANALYSIS

10. This matter concerns an alleged unfair labour practice relating to benefits in terms of section 186(2)(a) of the “LRA”. For the purpose of this award, the existence of an alleged unfair conduct by the respondent rests on the applicant. The applicant had no witnesses and submitted bundle of documents.

DEFINITION OF BENEFITS

11. The Labour Appeal Court in Apollo Tyres SA (PTY) LTD v CCMA and Others (2013) in paragraph 21 defines the term “benefits” as follows: “Advantage or an allowance to which a person is entitled to under insurance or social security.” The LAC added that a benefit is something extra, apart from remuneration; often it is terms and condition of an employment contract and often not. The LAC went on to say that the benefit must have some monetary value for the recipient and be a cost to the employer. In other words, it is something which arises out of contract of employment. Also, the LAC held that the better approach would be to interpret the term “benefit” to include a right or entitlement to which the employee is entitled to (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. “Benefit” in section 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.

12. In this matter, it is the applicant’s version that he was appointed to act as the Principal from January 2022 until 31 August 2022. However, he did not receive any payment for acting as the Principal at Laerskool Rustenburg for July and August 2022.
13. Having regard to the above, I am satisfied that the applicant has discharged the onus to establish that the conduct by the respondent not to pay him acting allowance constituted unfair labour practice.

14. Turning to the appropriate remedy, having concluded that the respondent’s failure to pay the applicant his acting allowance constituted unfair conduct and such decision was irrational and unjustified, I am of the view that the applicant’s wish that acting allowance be paid should be granted. In calculating the correct or appropriate amount, the applicant has stated that the amount due to him is R18 249,50 which is equivalent to two months of acting allowance in the capacity of Principal.

15. In the premises I find the following award competent.

AWARD

16. I find that the applicant, Mr. Gerrie Frederik Ouberholzer, has established the existence of unfair labour practice.

17. As a result of the above, I order the respondent, Department of Education: Northwest Province, to pay the applicant, Mr. Gerrie Frederik Ouberholzer, a sum of R18 249, 50 (eighteen thousand two hundred and forty- nine fifty Rands cents) in lieu of the acting allowance.

18. The aforesaid amount is payable to the applicant by not later than 15 December 2022.

P. Maitsha
ELRC Panelist