ELRC493-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALY OVER ZOOM

Case No. ELRC 493-23/24EC

In the matter between

SADTU obo NOMNIKELO SAYINETHE Applicant

and

BUFFALO CITY TVET COLLEGE First Respondent

DEPARTMENT OF HIGHER EDUCATION AND TRAINING Second Respondent

PANELIST: YOLISA NDZUTA

LAST HEARD: 1 DECEMBER 2023

DATE OF AWARD: 11 JANUARY 2024


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(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 benefits to an employee.

SUMMARY: Whether the Employer committed an act of unfair labour practice relating to benefits when the employee was not paid her housing allowance



ARBITRATION AWARD



PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me initially on the 1st of December 2023. During the proceedings, the Applicant, Ms Nomnikelo Sayinethe was represented by Mr Meshack Mpongoshe of SADTU while the First Respondent, Buffulo City Tvet College was represented by Zolani Chola and Xolisa Dyantyi. The Second Respondent (The Department of Hight Education and Training) was absent during the proceedings.

2. The parties present confirmed receipt of the notice of set down and it was confirmed that all parties were sent the notice of set down. The parties also confirmed that there were no pre-liminary issues raised.


THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed by the Respondents relating to the provision of a benefit wherein the Applicant was not paid a housing allowance which was due to her as an employee.

THE BACKGROUND TO THE DISPUTE

4. The Applicant referred an unfair labour practice relating to benefits in that as an employee of the Respondents a benefit that was due to her was not honoured or paid.

5. The Applicant claimed that having since commenced employment the above benefit ought to have formed part of her remuneration however her pleas and requests for same benefit were not getting attention which then necessitated these proceedings.

6. The First Respondent argued that although the benefit was due to the Applicant, there was an administrative delay at the Second Respondent and there were many employees who were experiencing the same peril as the Applicant.



SURVEY OF EVIDENCE AND ARGUMENT

7. The parties agreed that given that there wasn’t a factual dispute to the matter, it ought to proceed in terms of Rule 18 of the ELRC Constitution.

8. The applicant’s statement of case provided the following:

8.1 Ms Sayinethe was employed by Buffulo City TVet College from the 1st of January 2023 as a post level 1 lecturer.
8.2 Upon employment, the applicant accrued certain benefits which included the housing allowance.
8.3 The parties are subject to various collective agreements which include a collective agreement that codifies an employee’s entitlement to the housing allowance. The collective agreement in question is the Public Service Co-ordinating Bargaining Council: Resolution 7 of 2015.
8.4 The employer’s failure to pay the above is a transgression of the collective agreement and the employee’s right to the benefit.
8.5 Prior to lodging a dispute with the council, the applicant made attempts to resolve the issue internally however did not get any assistance rather was advise at arbitration that there are backlodgs which were delayed
8.6 The employer has failed to pay the employee’s housing allowance for seven (7) months which accounts to an amount of Twelve Thousand, Eight Hundred and Fifty-Two and Ninety-Two Cents (R 12 852.92) which is the compensation sought.

9. The respondents did not file a statement in response to the above nor did they dispute the above. The respondent’s representative did concede to the applicant’s case during the arbitration hearing prior to being directed to file a statement in response considering the absence of a dispute of fact.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

10. As stated above, the parties agreed to file submissions in terms of Rule 18. I shall hereinunder evaluate same submissions.

11. The applicant has referred an unfair labour practice dispute which relates to provision of a benefit which is established in law under section 186(2)(a) as:

“Unfair labour practice” means any 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;

12. At the epicentre of this dispute lies a question of whether the benefit claimed is due and whether same (if owed to the employee) has been honoured. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.

13. The applicant stated that the benefit it claims arises from established law (the collective agreement) to which it claimed (and argued) that the transgression thereof constitutes an unfair labour practice.

14. The applicant also argued and claimed that the non-compliance by the respondent with the collective agreement caused a material harm which same alludes to substantive unfairness.

15. The first respondent not only conceded that the benefit is due, it went on to explain that the transgression is not by its own doing rather a backlog which can be attributed to systems of the second respondent too.

16. In the premise of the above, it therefore is evident that the failure to pay the housing allowance, a statutory benefit constitutes an unfair labour practice.


17. In the regard of the above, I make the following award.

AWARD

18. The Applicant has proven that an unfair labour practice was perpetrated against her

19. The respondents are directed to pay the applicant an amount of R 12 852.92 less any applicable tax by the 31 January 2024.




Yolisa Ndzuta
Panelist: ELRC