ELRC513-22/23 EC

Case Number: ELRC513-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 08-02-2023

In the ARBITRATION between

SAOU obo M. BOTHA & 2 OTHERS
(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”) (Benefits). It was set down for an arbitration hearing virtually at 09:00 on the 06th of February 2023.

2. The applicants, Mrs. M. Botha & 2 others attended the hearing remotely and were represented by Mrs. Venita Van Wyk and official of the applicant’s trade union SAOU. The respondent, Department of Health – Eastern Cape, also attended the hearing and was represented by Mr. Euan Hector an official of the respondent.

3. The matter proceeded on the 06th of February 2023, and was finalized on the same day with the parties dealing with evidence on stated case at the same time on a signed document on the 07th of February 2023.

ISSUE TO BE DECIDED

4. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicants hostel allowance and if so, I must determine the appropriate remedy.

EVIDENCE

5. The facts in this dispute were common and were confirmed by the parties on record on a stated case. It then follows that the arbitration hearing was recorded on the signed document attached hereto.

COMMON CAUSE FACTS

6. That the Department of Education owe the 3 applicants listed below respective amounts for outstanding capped leave.

7. All three applicants are from the Sarah Baartman District and they retired in December 2020 and were employed by the Eastern Cape Department of Education.

8. Mrs. Botha persal no 51462478 was paid her outstanding capped leave amount in the value of R73 256, 35 and she confirmed that this amount was paid to her on the 04th of November 2022.

9. Mrs. J. S. Meyer persal no 51407809 was appointed on the 14th of April 1986 (34 years) no of capped leave days 75 days to the value of R148 693.10.

10. Mrs. J.S. Nell persal no 50589482 was appointed on the 01st of January 1998 (22 years) no of capped leave days 70.57 days to the value of R123 541, 00.

ANALYSIS OF EVIDENCE AND ARGUMENT

11. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (Benefits) as amended. Section 185 (2) provides that:

- no employee must be subjected to an unfair labour practice. The applicants feel that the employer has committed an unfair labour practice by failing to pay them outstanding capped leave days.

12. As indicated above in the topic dealing with common cause facts the parties are not in dispute whether the respondent owe the applicants the amounts / money in question. The only issue that remains to be decided is when such outstanding capped leave amount must be paid to the applicants.

13. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the evidence that has been adduced in the arbitration hearing stated case that the outstanding capped leave amount is due and payable to them.

14. The respondent has committed an unfair labour practice by failing to pay the applicants outstanding capped leave money and as such this constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.

15. As indicated above the applicant Mrs. Botha persal no 51462478 was paid her outstanding capped leave amount in the value of R73 256, 35 and she confirmed that this amount was paid to her on the 04th of November 2022. This means that she will not be covered by this award.

16. In the circumstances I make the following award.

AWARD

17. The respondent is ordered to pay the other 2 applicants their outstanding capped leave days money in terms of the ELRC Collective Agreement 7 of 2001a and the PAM document Chapter H. as follows:

- Mrs. J. S. Meyer persal no 51407809 was appointed on the 14th of April 1986 (34 years) no of capped leave days 75 days to the value of R148 693.10.

- Mrs. J.S. Nell persal no 50589482 was appointed on the 01st of January 1998 (22 years) no of capped leave days 70.57 days to the value of R123 541, 00.

18. The amounts referred to in the paragraph above will be paid to the respective applicants not later than the 31st of March 2023.

Signature:

Commissioner: Malusi Mbuli