ELRC612-22/23 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC612-22/23 EC

In the matter between

SAOU obo SALLY PETERSEN Applicant

and

Eastern Cape Department of Education Respondent


Panelist: YOLISA NDZUTA

HEARD: 8 February 2023

DATE OF AWARD: 23 March 2023

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to the provision of benefits

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to benefits by allegedly failing to pay for capped leave days and whether claim relating to non-payment of accumulated leave constitutes benefits for purposes of section 186(2)(a)

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me over zoom on the 08 February 2023. During these proceedings, the Applicant, Mrs Sally Petersen was represented by Ms Venita Van Wyk of SAOU while the Respondent, Eastern Cape Department of Education was represented by Mr Euan Hector.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.

3. The parties provided that the matter was not complicated and that there was no dispute of fact as such there was an application by the Applicant’s representative that the matter proceed in terms clause 18 of the ELRC Constitution.

4. The applicant was directed to file their statement of case by 10th of February 2023 and the respondent to file a response by the 17th of February 2023.

THE ISSUE IN DISPUTE

5. I am required to determine whether an unfair labour practice was committed by the Respondent relating to benefits as it relates to the alleged non-payment of the applicant’s accumulated capped leave days.

THE BACKGROUND TO THE DISPUTE

6. In these proceedings the Applicant referred an unfair labour practice relating to accumulated capped leave days which was allegedly due to the Applicant and remained unpaid upon the Applicant’s retirement.

7. The Applicant claimed that she was employed from the 1st of January 1985 until the 31st of December 2020.

8. The Applicant further claimed that upon her retirement she had accumulated several days capped leave in respect of which she was entitled to encashment, however same was not paid to her.

9. The Applicant also claimed that her entitlement to the above was based on established law and policy.

10. The Respondent was invited to respond and failed to file a Statement in Response.

11. The Respondent accepted that the matter did not require the hearing of evidence and may proceed under the auspices of clause 18 of the ELRC Constitution.

SURVEY OF EVIDENCE AND ARGUMENT

12. There was no viva voce evidence presented rather the parties proceeded to file a Statement of Case (with annexures) from the applicant and a Statement in Response that was due from the respondent was not filed.

13. The Respondent’s representative filed confirmation that the applicant was owed an amount.

14. The Applicant’s case was not disputed however same evidence must be assessed in terms of the rules of evidence applicable.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. As stated above, the parties agreed to file written statement of case and a statement in response as there wasn’t any dispute of fact. Similarly, the applicant filed a statement of case however the respondent did not file a statement in response or any other document in response to dispute the applicant’s averments.

19. I considered the submissions.

20. Before I address the submissions made, it is important to consider the dispute as defined in case law. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion. The latter case has been referred to as the locus classicus for such disputes. Similarly, the Labour Appeal Court has through its interpretation of the section, restricted the jurisdiction to entertain residual unfair labour practice disputes relating to benefits, to those benefits to which an employee is entitled ex contractu (by virtue of the contract of employment or collective agreement) or ex lege (by virtue of for example the Public Service Act or any other applicable Act)(see HOSPERSA & another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC) para 9).

21. The applicant’s case satisfies the above as it addresses the question of one’s entitlement to amounts that were due to them ex contractu and ex lege in this regard.

22. More important in this matter was the issue of nonpayment for accumulated leave which the Respondent was requested to settle in compliance of the Personnel Administrative Measures document.

23. The Applicant’s statement of case also averred that upon retirement there were 64.42 days accumulated leave.

24. The applicant also argued that the above accumulated leave days equated to an amount of One Hundred and Fourteen Thousand, Four Hundred and Seventy-Nine Rands, Nine Cents (R 114 47.09)

25. The above was not disputed by the Respondent, rather the representative for the Respondent failed to file a statement in response to dispute the above averments.

26. Thorough consideration of the Personnel Administrative Measures document and Sithole v Nogwaza NO [1999] 12 BLLR 1348 (LC) it is evident that a party in the position of the Applicant is entitled to consider a benefit of material nature having some monetary value for the employee as a benefit.

27. Considering the principles laid out in WJ Ludick vs Rural Maintenance (Pty) Ltd case nr: Js 633/07 (unreported) it is evident that the applicant’s claim is for unpaid accumulated leave is justified as was reiterated by the honourable Van Niekerk J an employee does not forfeit leave or its claim to its value.

28. In the premise of the above, the I make the following finding.

AWARD

29. The Applicant, Ms Sally Petersen, has proven that an unfair labour practice was perpetrated against her by the Respondent, the Eastern Cape Department of Education, relating to benefits.

30. The Applicant is entitled to compensation to the value of One Hundred and Fourteen Thousand, Four Hundred and Seventy-Nine Rands, Nine Cents (R 114 479.09) which equates to the monetary value for the accumulated capped leave.

31. The Respondent is ordered to pay the sum of R 114 479.09, to the Applicant by no later than 30 April 2023.

Yolisa Ndzuta
Panelist: ELRC