ELRC641-22/23NC

Panelist: Clint Enslin
Case No.: ELRC641-22/23NC
Date of Award: 18 January 2023

In the ARBITRATION between:

SAOU obo J Hendricks
(Union / Applicant)


and


Department of Education: Northern Cape

(Respondent)

Applicant’s representative: Mr Henk Brand
Applicant’s address:

Telephone: 0818924280
Telefax:
Email henkb@saou .co.za

Respondent’s representative: Mr Ricardo Britz
Respondent’s address:


Telephone: 0814814726
Telefax:
Email ricardobritz@ncdoe.school.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 69 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 17 January 2023 and the proceedings were electronically recorded. The Applicant, Mr Johann Hendricks, through his Union SAOU, referred an enforcement dispute to the ELRC.

2. The Applicant was represented by Mr Henk Brand, the Provincial Secretary of SAOU Northern Cape. The Respondent, Department of Education – Northern Cape was represented by Mr Ricardo Britz, an Assistant Director: Labour Relations.

ISSUE TO BE DECIDED
3. A dispute concerns the alleged refusal and or failure of the Respondent to pay the Applicant his acting allowance.
4. I am accordingly required to decide if the Respondent is in breach of the Collective Agreement and if so, determine the appropriate relief.

BACKGROUND TO THE ISSUES

5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

5.1 The Applicant is an educator employed by the Respondent.

5.2 He is the Deputy Principle of Hantam High School in Calvinia, which is a post level 3.

5.3 From 1 June 2021 until 31 December 2021 he acted a principal of the aforementioned school, which is a post level 4.

5.4 This acting period was duly authorised by the Respondent.


5.5 The Respondent has not paid him his acting allowance for the said period and it is therefore owing to him.

5.6 The total amount owing is R23 052,50.

5.7 The amount is owing in terms of ELRC Resolution 8 of 2001 as well as ELRC Resolution 8 of 2002.


SURVEY OF EVIDENCE AND ARGUMENT

6. The parties confirmed that all facts were common cause, as captured above. Despite being given an opportunity to do so, both parties indicated that they had no further evidence or arguments to add and there was also nothing they wished to dispute.

ANALYSIS OF EVIDENCE AND ARGUMENT

7. It is common cause that the Applicant acted in a higher post, being that of Principal (post level 4) from 1 June 2021 until 31 December 2021 and that such acting period was duly authorised by the Respondent.

8. It is further common cause that the amount of R23 052,50 is owing to the Applicant for the period of acting and that such monies are owing in terms of ELRC Resolution 8 of 2001 and ELRC Resolution 8 of 2002.

9. Clause 69.1, of Annexure “C” (Dispute Resolution Procedures) of ELRC Resolution 6 of 2016, provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.

10. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.

11. Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act, the Employment of Educators Act, the Personal Administrative Measures (PAM), or any other regulations or subordinate legislation promulgated by the Minister of basic Education or MEC for Education in the respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment.

12. Clause 69.8 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33A of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.

13. Clause 69.9 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.

14. The payment of an acting allowance to the Applicant is payable in terms of a Collective Agreement, specifically ELRC Resolution 8 of 2001 and ELRC Resolution 8 of 2002. The entitlement to the amount claimed was agreed to between the parties.

15. In terms of section 138(9) of the LRA “[a] commissioner may make any appropriate arbitration award in terms of this Act, including, but not limited to, an award-
(a) that gives effect to any collective agreement,
(b) that gives effect to the provisions and primary objects of this Act,
(c) that includes, or is in the form of a declaratory order.”

AWARD

16. The Respondent, the Department of Education: Northern Cape, is in breach of the terms of ELRC Resolution 8 of 2001 and ELRC Resolution 8 of 2002 by not paying the Applicant his acting allowance for the period of 1 June 2021 until 31 December 2021.

17. The Respondent, the Department of Education: Northern Cape, is ordered to pay the Applicant, Mr Johann Hendricks an amount of R23 052,50, which is the acting allowance he was entitled to for the aforementioned period.

18. The amount as referred to in paragraph 17 must be paid to the Applicant by no later than 28 February 2023.

Clint Enslin
(ELRC) Arbitrator