ELRC266-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN EAST LONDON
IN THE ARBITRATION
BETWEEN
SAOU obo SCHOEMAN L APPLICANT
AND
DEPARTMENT OF EDUCATION – EC RESPONDENT

ARBITRATION AWARD

CASE NO ELRC266-23/24EC
DATE/S OF HEARING 17/10/2023
DATE AWARD SUBMITTED 08/11/2023
NAME OF PANELIST SIZIWE GCAYI



DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) as amended- virtually on 17 October 2023 at 09h00. Ms V Van Wyk an official from SAOU represented the Applicant. Mr P Nkomana an official, represented the Respondent, (Department of Education Eastern-Cape).
2. The proceedings were electronically recorded and manually recorded. The parties were given up until 23rd October 2023 to submit their closing arguments to the Council.

ISSUES TO BE DECIDED

3. I am required to determine whether an unfair labour practice relating to benefits was committed. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
4. The Applicant was employed by the Respondent as an educator. She was appointed on 01 April 1998. She retired on 03 June 2022 as a deputy principal [P2]at Barkley East High school. At the time of her retirement, she had 57-85 capped leave.

SUBMISSIONS
5. Both parties filled written submissions with the Council. I don’t deem it necessary to repeat them as they are a matter of record.

ANALYSIS OF SUBMISSIONS
6. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.

7. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

8. I have to decide whether the Respondent acted fairly or not, in not paying the Applicant her benefits [ CAPPED LEAVE].

9. It is common cause that the Applicant had 57-85 capped leave at the time of her retirement on 03 June 2023. Mr Nkomana submitted that the HR Office in the Joe Gqabi district verified that the Applicant had 57-85 capped leave and her final notch at retirement was R474 945-00. Mr Nkomana further submitted that the Respondent was not refuting that the Applicant was entitled to her benefits. The payment will be made to the Applicant using BAS (Basic accounting system) as the Applicant is no longer on the persal system.

10. With this background I am painting a picture that the Respondent did not dispute the claim of the Applicant.

11. Ms Van Wyk for the Applicant submitted that calculations are as follows: 57-85 X R49495/260-714= R105 385-80. The calculations were forwarded to Mr Nkomana on 24 October 2023 at 8h15 AM. The Respondent did not dispute the calculations.

12. I find that the Applicant managed to discharge the onus placed on it on the balance of probabilities, that the conduct of the Respondent in not paying the Applicant her benefits, that amounted to unfair labour practice.

13. In terms of section 193 [4] of the LRA an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering re-instatement, re-employment or compensation. In the matter before me Compensation will be appropriate in the circumstances.

14. It was submitted that the bank details of the Applicant have not changed, therefore Respondent is in possession of the bank details of the Applicant.


AWARD
15. The Applicant managed to discharge the onus placed on her and therefore the Respondent is ordered to pay the Applicant R105 385-85 [ One hundred and five thousand, three hundred and eighty-five rand and eighty-five cents] within 21 days upon receiving this award. The above mentioned amount is subject to income tax. It will be paid into the Applicants bank account, as per the Respondent’s records.
Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education