ELRC264-23/24EC

Panelist: Clint Enslin
Case No.: ELRC264-23/24EC
Date of Award: 10 October 2023

In the ARBITRATION between:

SAOU obo Isabella Rossouw
(Union / Applicant)
and
Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Ms Venita Van Wyk
Applicant’s address:

Telephone:
Telefax:
Email: venitavw@saou.co.za

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


Telephone:
Telefax:
Email ansie68lro@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 10 October 2023 and the proceedings were electronically recorded.

2. The Applicant, Ms Isabella Rossouw, was represented by Ms Venita Van Wyk, Provincial Secretary of SAOU Eastern Cape, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Ms Annalie Slabbert, a Senior Employee Relations Officer of the Respondent.

ISSUE TO BE DECIDED
3. Whether the Respondent’s non-payment of the Applicant’s claimed Resettlement Costs and Government Employees Housing Scheme (“GEHS”) Monies, after her retirement, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
4. If so, determine 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, a former educator, retired on 31 January 2021.
5.2 At the time of her retirement, she was employed in a post level 1 post and earned R 335 127.00 per annum.
5.3 The Applicant is entitled to the payment of her resettlement costs, in the amount of R13 290, as claimed in terms of PSCBC Resolution 3 of 1999.
5.4 The Applicant is entitled to the payment of her GHES Monies, in the amount of R26 825, as claimed in terms of PSCBC Resolution 7 of 2015.
5.5 Neither of the above amounts have been paid to the Applicant by the Respondent as yet.
5.6 The monies are owed to the Applicant.
5.7 There is no valid reason why the amounts have not been paid.

SURVEY OF EVIDENCE AND ARGUMENT

6. All facts, as per paragraph 5.1 to 5.7 above, were common cause.

7. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both indicated that they had no further evidence to lead. Parties, however, agreed that the Applicant would again submit a BAS form to the Respondent within 14 days from the date of this arbitration sitting.

ANALYSIS OF EVIDENCE AND ARGUMENT

8. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(a) 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 a benefit to an employee. (Own underlining)

9. I am satisfied that both the Resettlement Costs as well as the GEHS Moneys amount to benefits.

10. The Respondent agrees that both the Resettlement Costs, in the amount of R13 290, and the GEHS Monies, in the amount of R26 825, are owing to the Applicant and that there is no valid reason why same have not been paid. As a result, I am of the view that the non-payment of the said monies amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicant, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.

11. The Respondent has therefore committed an Unfair Labour Practice against the Applicant, by not paying the said monies.

AWARD

12. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicant, Ms Isabella Rossouw, by not paying her Resettlement Costs, in the amount of R13 290 and her GHES Monies, in the amount of R 26 825, after her retirement.

13. The Respondent, the Department of Education: Eastern Cape, must pay the Applicant, Ms Isabella Rossouw, an amount of R13 290 in respect of her Resettlement Costs and amount of R26 825 in respect of her GEHS Monies. The total amount payable is therefore R40 115, less normal deductions.

14. The amount of R 40 115, less normal deductions, as reflected in paragraph 13 above, must be paid to the Applicant by no later than 1 December 2023.

Name: Clint Enslin
(ELRC) Arbitrator