ELRC528-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN PORT ELIZABETH

Case No ELRC528-22/23EC

In the matter between

SADTU obo NL Jacobs Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: AW Howden

HEARD: 24 August 2023

DATE OF AWARD: 29 August 2023

SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 186(2)(a) - unfair labour practice relating to benefits – whether the Respondent acted fairly by failing to pay the Applicant for services rendered as an Acting Principal. (ELRC Resolution 1 of 2008 and the Personnel Administrative Measure – PAM)

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended on 26 May 2021). The arbitration was held on 24 August 2023 at the District offices of the Department of Education - Eastern Cape in Port Elizabeth.

2. The Applicant, Mr NL Jacobs – Persal No 53181859, was present and was represented by Mr L Cunningham from SADTU.

3. The Respondent, the Department of Education - Eastern Cape, was represented by Ms A Slabbert from the Labour Relations Department.

4. The Respondent’s Representative submitted a bundle of documents. The bundle consisted of the calculations for the periods that the Applicant had rendered his services in the capacity as Acting Principal however had not been paid. These calculations were not in dispute.

5. The proceedings were digitally recorded.

ISSUES IN DISPUTE

6. I am required to determine whether or not the Respondent committed an unfair labour practice by failing to pay the Applicant for some of the periods that the Applicant had rendered his services as an Acting Principal, and if so to order payment.



BACKGROUND TO THE DISPUTE

7. The Applicant is employed by the Respondent as a Post Level 2 Educator at Ben Senuka Primary School.

8. On instructions from the Circuit Manager (EDO) the Applicant acted in the position of Principal at Ben Senuka Primary School, for the periods of 1 October 2019 to 6 December 2019 and 6 September 2021 to 31 May 2022.

9. The Applicant however was only paid for the period 17 January 2022 to 31 May 2022.

10. The Applicant has requested that he be paid for the periods 1 October 2019 to 6 December 2019 and 6 September 2021 to 15 December 2021.

SURVEY OF EVIDENCE AND ARGUMENT

11. It is common cause between the parties:
- That the Applicant is employed by the Respondent as a Post Level 2 Educator at the Ben Senuka Primary School.
- That the Applicant was instructed by the Circuit Manager (EDO) to act in the position of Principal at the Ben Senuka Primary School in the absence of the appointed Principal.
- That the Applicant acted for the period 1 October 2019 to 6 December 2019.
- That the Applicant acted for the period 6 September 2021 to 31 May 2022.
- That the Applicant has only been paid for the period 17 January 2022 to 31 May 2022.

12. The issue in dispute is whether the Respondent committed an unfair labour practice by not paying the Applicant for the periods 1 October 2019 to 6 December 2019 and 6 September 2021 to 15 December 2021.

13. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

14. The Applicant, after being sworn in stated the following:
- That he was instructed by the Circuit Manager (EDO), Ms Selana, to act in the position of Principal in the absence of the current Principal.
- That he had rendered services and expected to be paid.
- That he had acted for the period 1 October 2019 to 6 December 2019, however had not been paid.
- That he had acted again for the period 6 September 2021 to 31 May 2022 on instruction from Ms Selana.
- That he had been paid for the period 17 January 2022 to 31 May 2022, however was not paid for the period 6 September 2021 to 15 December 2021.

The Respondent’s Submissions

15. After being sworn, in the Respondent’s witness, Ms Selena – Circuit Manager (EDO), stated the following:
- That she had requested the Applicant to act as Principal, as the current Principal was absent.
- That the Applicant had worked in the acting capacity for the 1 October 2019 to 6 December 2019 period.
- That the Applicant had again worked in the acting capacity for the 6 September 2021 to 15 December 2021 and 17 January 2022 to 31 May 2022 periods on her request.
- That the Applicant had been paid for the 17 January 2022 to 31 May 2022 period.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

16. In the Constitution of the Republic of South Africa 1996 paragraph 23 (1) it clearly states:
Everyone has the right to fair labour practices.



17. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving - 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 provision of benefits to an employee.”

18. It is trite that in Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013) 34 ILJ 1120 (LAC) the court broadened the scope of benefits considerably when it held that the definition of a benefit, as contemplated in section 186 (2) (a) of the LRA was not confined to rights arising ex contractu (by virtue of the contract of employment or a collective agreement) or ex lege (the Public Service Act or any other applicable act), but included rights judicially created as well as advantages or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.

19. The Applicant’s Representative has contended that the Respondent had acted unfairly by failing to pay the Applicant for the full periods he had acted as a Principal, thus committing an unfair labour practice.

20. The Respondent has not contested the fact that the Applicant must be paid for the full period(s) that he acted as a Principal and confirmed that COVID-19 has had a huge effect on the department’s administration.

21. The parties have agreed, on record, that the Applicant must be paid the amount of R29 856.45 (As per the calculations on pages 1 and 2 of the Respondent’s Bundle).

22. The above amount is made up as follows:

October 2019 R5 917.75
November 2019 R5 917.75
December 2019 (6 days) R1 173.30

September 2021 (18 days) R3 231.90
October 2021 R5 461.25
November 2021 R5 461.25
December 2021 (15 days) R2 693.25

Total amount due to the Applicant: R29 856.45

23. Based on the above submissions and on the balance of probability, it is my finding that the Respondent has committed an unfair labour practice by failing to pay the Applicant for services rendered in the capacity as Acting Principal for the periods 1 October 2019 to 6 December 2019 and 6 September 2021 to 15 December 2021.

24. I therefore make the following award.

AWARD

25. The Respondent, the Department of Education - Eastern Cape has committed and unfair labour practice by failing to pay the Applicant, NL Jacobs – Persal No 53181859, for services rendered in the capacity as Acting Principal for the periods 1 October 2019 to 6 December 2019 and 6 September 2021 to 15 December 2021.

26. The Respondent, the Department of Education - Eastern Cape, is ordered to pay the Applicant, NL Jacobs – Persal No 53181859, the amount of R29 856.45 (Twenty Nine Thousand Eight Hundred and Fifty Six Rand and Forty Five Cents) as calculated in paragraph (22) above.

27. The Respondent, the Department of Education – Eastern Cape, is ordered to pay the amount of R29 856.45 (Twenty Nine Thousand Eight Hundred and Fifty Six Rand and Forty Five Cents) less PAYE, pension deductions, and other Persal related deductions by no later than 30 September 2023.


Panellist: AW Howden
ELRC