ELRC1003-22/23EC

Case Number: ELRC1003-22/23EC
Commissioner: Henk Jacobs
Date of Ruling: 23 August 2023

In the matter between

SAOU obo Shandre Viljoen
(Applicant)

And

Department of Education – Eastern Cape
(Respondent)


Union/Applicant’s representative:

Ms Van Wyk




Telephone:
Telefax:
E-mail: venitavw@saou.co.za

Respondent’s representative: Ms Slabbert
Respondent’s address:



Telephone: Ansie68lro@gmail.com
Telefax:
E-mail:


Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held Virtually on 17 August 2023.

2 The applicant, Ms Shandre Viljoen, was represented by Ms Van Wyk, the Assistant Provincial Secretary of the South African Teachers Union. The respondent, the Education Department - Eastern Cape, was represented by Ms Slabbert, an Employment Relations Officer employed by the Respondent.

3 The proceedings were held in English and was digitally recorded.


Issue to be decided

4. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2)(a) of the LRA, by not paying the Applicant’s bursary.

Background to the matter

5. The Applicant referred an alleged unfair labour practice dispute pertaining to benefits that arose during 2019.

6. The Applicant filed a condonation application on the day of the arbitration, an ex-tempore, viva voce ruling was issued, granting condonation. I will briefly deal with the application and ruling before I proceed considering the merits of the alleged unfair labour practice dispute.

7. It must be noted that the condonation application was not opposed, neither was the main dispute opposed by the Respondent, instead, the Respondent confirmed that the Applicant should be paid the outstanding approved bursary.

Survey of submissions

8. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.


Applicant’s submissions

9. The Applicant submits that she applied for a bursary which was approved to further her studies. The bursary was approved for two years, 2018 was paid by the Respondent, however, the Respondent failed to pay 2019.

10. The Applicant submits that the reason for the late referral of the dispute was due to a combination of factors, firstly, Covid 19 appears at our doorsteps during that time whereafter there was communication between the Applicant and the Respondent from 2019 to 2023, she was of the opinion that the Respondent would have paid the bursary.

11. After all internal measures were exhausted, she referred a dispute the ELRC.

Analysis

12. Section 191(1)(b)(i) states that if there is a dispute about an unfair labour practice, a referral must be made within 90 days of the date of the act or omission that constitutes the unfair labour practice or, if it is a later date, within 90 days of which the employee became aware of the act or omission.

13. Section 191(2) states that if the employee shows good cause at any time, the Commission may permit an employee to refer the dispute after the relevant time limit.

14. The most often quoted passage dealing with the test for the granting of condonation is per Holmes JA in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) held:

“In deciding whether sufficient cause has been shown, the basic principle is that the court has discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interests in finality must not be overlooked.”


Degree of Lateness

15. The Applicant submits that the dispute arose during 2019, but could not provide a specific date, if one takes into consideration the time period, the delay is extensive, and a good explanation is required.

Reasons for Lateness

16. It is trite law that an applicant should file an application for condonation without delay. In this case, the Applicant seeks indulgence from the commission for its failure to submit a referral within the prescribed time frame. In order to exercise discretion whether or not to grant condonation, this forum must be appraised of all facts and circumstances relating to the delay.

17. In this instance, the Applicant stated that Covid 19 arrived during 2019 and thereafter there was constant commination between the parties with an intention that the matter should be resolved.

18. With regards to prospects of success, the Respondent confirms that there is no dispute of fact, and the Applicant should be paid the bursary. In South African Post Office Ltd v CCMA & Others [2012] 1 BLLR 30 (LAC) the court condoned the late filing of the records of the LC proceedings on the basis of strong prospects of success.

Conclusion
19. In light of the above, the Applicant shows good prospects of success, consequently, condonation is granted.
20. I will now turn to the main dispute.

Applicants evidence

21. Ms Viljoen testified that she applied for a bursary to further her studies at the Nelson Mandela University from the Department of Education, which was approved, the Department of Education paid the 2018 portion of the bursary but failed to pay the 2019 portion thereof after she had submitted all her results.
22. The University handed her over for Debt Collection purposes and she made an arrangement with the Debt Collector to repay the money.

Respondent evidence

23. Mr Swanepoel testified that he is employed by the Department of Education as a Senior Administration Officer and deal with bursaries. The Applicant was handed over for Debt Collection due to the Department of Education’s failure to pay the Applicants bursary.

24. Mr Swanepoel further confirmed that the Department of Education must pay the Applicant R12 704.00, which was the amount the Applicant had to pay the Debt Collector in terms of the 2019 approved bursary.

Analysis

25. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

26. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.

27. It is common cause that the Applicant was entitled to the benefit of the bursary and that an amount of R12 704.00 is payable to the Applicant in terms of the bursary.

28. It is not disputed that the amount claimed by the Applicant is due to her. The Applicants claim falls within the ambit of an unfair labour practice as envisage through section 186(2) of the LRA.

29. In light of the above, I find it appropriate to make the following award.

Award

30. The Respondent, the Department of Education : Eastern Cape, committed an unfair labour practice relating to benefits when they failed to pay the Applicant, Ms Shandre Viljoen, her approved bursary for the year 2019.
31. The Respondent, The Department of Education : Eastern Cape, is ordered to pay the Applicant, Ms Shandre Viljoen, the amount of R12 704.00 (twelve thousand seven hundred and four rand only) in terms of the 2019 approved bursary, by no later than 25 September 2023.


Signature:

Commissioner: Henk Jacobs