ELRC 640-22/23 NC

Arbitrator: SHIRAZ MAHOMED OSMAN Case Reference No: ELRC 640-22/23 NC
Date of award: 19 JANUARY 2023

In the arbitration between:

SAOU obo Ms. Wentzel N Employee party

and

Department of Education – Northern Cape Employer party

DETAILS OF HEARING AND REPRESENTATION

1. The present dispute between SAOU obo Ms. Wentzel N (hereinafter referred to as the employee) and The Department of Education-Free State (hereinafter referred to as the employer) was referred to, Inquiry by Arbitrator in terms of Section 186 (2) of the Labour Relations Act no.66 of 1995, as amended (the Act). At the Arbitration hearing, which was held virtually, on 18 January 2023, the applicant was represented by Ms. L-M Mazzonici of SAOU, and the respondent was represented by Mr. R Britz.

ISSUES TO BE DECIDED
2. I was called by both the parties to issue an award, in respect of the unpaid Acting Allowance, owed to the Applicant.

BACKGROUND
3. The employee is a PL2, graded educator.
4. Indeed, the applicant had acted as a PL 2 graded educator for the period 1 January 2022 till 31 December 2022, whilst she was indeed on a PL1 graded salary level.
5. The applicant has subsequently been permanently employed in the position of a PL2 graded educator.
6. The applicant sought the Acting Allowance for the period of her acting in the PLS position for a period of an entire year.
7. The applicant was not paid and the matter was referred to Council by the applicant. Conciliation failed and the matter was referred to Arbitration, in terms of Section 191 of the Act.

SURVEY OF EVIDENCE AND ARGUMENT
8. Both parties sought that an agreed award be issued. There were no factual disputes and all aspects of the dispute were in common cause.
9. A pre-arbitration meeting was not required in the instance as all facts were agreed on record.
10. Herewith, brief reasons for my decision, in terms of Section 138 (7) of the Act. Should any of the evidence or argument not be reflected hereunder, then it does not mean that it was not considered.
ANALYSIS OF EVIDENCE AND ARGUMENT

11. Both parties made submissions and agreed that the applicant, Ms. N Wentzel, had acted in the Post Level position for a period of 12 months, dated from 1 January 2022 till 31 December 2022. She was indeed employed at the period on Post Level 2.
12. The vacancy was funded and the applicant was given the task of filling the position, which included the payment of Acting Allowance.
13. However, for reasons, apart from the load shedding and not being able to get he submission to Head Office in Kimberley on time and the fact that the persal system was continuously interrupted by the loadshedding, the respondent was unable to pay the applicant.
14. Hence, both parties agreed on a date that the monies be paid to the applicant.

REMEDY
15. The applicant sought to be paid her Acting Allowance in the amount of R 89 146.50, as agreed between parties.
16. In terms of Section 193, an arbitrator may determine any unfair labour practice dispute referred to the council, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
17. In the present instance, the applicant sought none other than what was due to her as per Clause 15, above.
18. The respondent conceded that the applicant’s claim for relief was correct.
19. In terms of Section 195 of the Act, an order or award of compensation made is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement or contract of employment.
20. In view of the above, I am convinced that the applicant’s claim is not only appropriate but in fact a statutory payment in respect of outstanding monies owed to her for her Acting Allowance.
21. The applicant sought only the monies owed to her as a result of her Acting Allowance claim.
22. I am satisfied that by agreement, she in entitled to same.
AWARD

23. The respondent had indeed committed an unfair labour practice by failing to pay the applicant Acting Allowance, owed to the applicant.
24. The respondent is ordered to pay the applicant the sum of R 89 146.50 (eighty- nine thousand one hundred and forty six rand and fifty cents) as per the amount claimed in paragraph 15, above, by no later than, 15 February 2023, directly into the bank account of the applicant, into which she is ordinarily paid her salary.
25. Should there be a failure to pay the above amount in time then, interest shall accrue at 10.5% per annum.

Signed at Kimberley on this 18 day of January 2023

ELRC PANELLIST
SHIRAZ MAHOMED OSMAN