ELRC215-23/24EC

Panelist: Clint Enslin
Case No.: ELRC215-23/24EC
Date of Award: 10 November 2023

In the ARBITRATION between:

SAOU obo Louise Geyer and 1 Other
(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: Mr Monde Stemele
Respondent’s address:

Telephone:
Telefax:
Email mondestemele@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 18 August and 3 November 2023 and the proceedings were electronically recorded.

2. The Applicants, Ms Louise Geyer and Ms Petra Odendaal, were represented by Ms Venita Van Wyk, Assistant Provincial Secretary of SAOU Eastern Cape, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Mr Monde Stemele, a Deputy Chief Education Specialist – Labour, of the Respondent.

ISSUE TO BE DECIDED
3. Whether the Respondent’s non-payment of Ms Odendaal’s claimed resettlement costs, 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. This matter was referred by SAOU on behalf of the two Applicants. In terms of the dispute referred, both Applicants were claiming unpaid capped leave. Ms Odendaal was also claiming unpaid resettlement costs. Prior to the end of the arbitration, Ms Van Wyk confirmed that both Applicants had received their payments for their capped leave and as such the claim for same no longer needed to be determined by me. The only remaining issue to be determined in the arbitration was Ms Odendaal’s claim for resettlement costs.

6. The following facts, in relation to Ms Odendaal’s claim for resettlement costs, were agreed to between the parties as common cause and there existed no dispute of fact.

6.1 The Applicant, a former educator, retired on 1 September 2022.
6.2 She submitted a claim for her resettlement costs.
6.3 The Applicant is entitled to the payment of her resettlement costs, in the amount of R44 684,75, as claimed in terms of PSCBC Resolution 3 of 1999.

6.4 The above amount has not been paid to the Applicant, by the Respondent, as yet.
6.5 The monies are owed to the Applicant.

SURVEY OF EVIDENCE AND ARGUMENT

7. All facts, as per paragraph 6.1 to 6.5 above, were common cause.

8. 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.

ANALYSIS OF EVIDENCE AND ARGUMENT

9. 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)

10. I am satisfied that the resettlement costs amount to a benefit.

11. The Respondent agrees that the resettlement costs, in the amount of R44 648,75 are owing to the Applicant ( Ms Odendaal). 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.

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

AWARD

13. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicant, Ms Petra Odendaal, by not paying her resettlement costs, in the amount of R44 648,75, after her retirement.

14. The Respondent, the Department of Education: Eastern Cape, must pay the Applicant, Ms Petra Odendaal, an amount of R44 648,75, less normal deductions, in respect of her resettlement costs.

15. The amount of R44 648,75, less normal deductions, as reflected in paragraph 14 above, must be paid to the Applicant by no later than 29 December 2023.

Name: Clint Enslin
(ELRC) Arbitrator