ELRC478-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC478-23/24 EC

In the matter between

SAOU obo JANNIE SAFERS & OTHERS Applicant

and

EASTERN CAPE DEPARTMENT OF EDUCATION Respondent

Panelist: YOLISA NDZUTA

HEARD: 14 DECEMBER 2023 & 1 MARCH 2024

DATE OF AWARD: 22 MARCH 2024

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to the provision of benefits

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to benefits by failing to pay the accumulated capped leave

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me over zoom on the 06 February 2023. During these proceedings, the Applicants, Ms Jannie Saffers and Ms Paullette Rossouw was represented by Ms Venita Van Wyk of SAOU while the Respondent, Eastern Cape Department of Education was represented by Mr Euan Hector.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.

3. The parties provided that the matter was not complicated and that there was an agreement relating to the issue in dispute, issue to decided and the relief sought. The parties confirmed that they had no concluded a Pre-Arbitration minute however they had exchanged documents.


THE ISSUE IN DISPUTE

4. I am required to determine whether an unfair labour practice was committed by the Respondent relating to benefits as it relates to the action of the Respondent of refusing to compensate the applicants for their leave credits accumulated during the course of their employment amounts to unfair labour practice.

THE BACKGROUND TO THE DISPUTE

5. In these proceedings the Applicants referred an unfair labour practice relating to failure of the Respondent to pay their respective capped leave.

6. The Applicants claimed that they were employed as educators at different schools.

7. The Applicants further claimed that during their respective employment they accumulated capped leave which they would have to be remunerated the cash value of upon their retirement.

8. The Applicant also claimed that upon their respective retirement dates they claimed their retirement benefits which include the accumulated capped leave.

9. The Respondent accepted the above and conceded that there were payments due to the applicants in this regard.


SURVEY OF EVIDENCE AND ARGUMENT

10. The applicants testified in support of their respective cases, a summary of their viva voce evidence is summarized herein below.

11. Ms Jannie Saffers testified that:

11.1. She was employed by the Respondent from the 1st of January 1983 until the 28th of February 2022 when she retired.

11.2. She commenced as an educator then worked as a department head thereafter was appointed as deputy principal. She had also been employed as a principal (after serving as the deputy principal) there after she worked as the deputy DCES then retired while working as the EDO.

11.3. When she retired she had accumulated capped leave of no less than 74.85 days.

11.4. She had applied for payment of her retirement benefits which included her accumulated capped leave.

11.5. Since applying for payment of her accumulated capped leave the Respondent has not paid same which then necessitated the proceedings before the honourable council.

11.6. Between the referral of the dispute and the date of the arbitration, several follow ups were made however the Respondent had not processed the overdue capped leave payment. This after completing and submitting all necessary documentation such as the BAS Entity form.


12. The latter testimony was not challenged as there wasn’t any cross-examination.

13. Ms Paullete Rossouw testified as follows:

13.1. She was employed by the Respondent between the 1st of January 1985 and the 31st of December 2021.

13.2. Upon retiring, there were certain benefits that were due which had not been paid to which she had enquired about however she was not getting any joy from the employer (Respondent). This after completing and submitting all necessary documentation such as the BAS Entity form.

13.3. According to her last payslip she had accumulated no less than 57.13 capped leave days.

13.4. Despite all attempts to resolve the dispute regarding the unpaid capped leave, the employer failed to process and settle same. At best she has been promised countless times that the processing and payment will be settled soon.

14. The latter testimony was not challenged as there wasn’t any cross-examination.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

15. The applicant has referred an unfair labour practice dispute which relates to promotion/appointment 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—
(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;

16. I considered the applicant’s case and evidence from the latter perspective.

18. Before I address the testimony given, it is important to consider the dispute as defined in case law. 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. The latter case has been referred to as the locus classicus for such disputes. The latter case has been referred to as the locus classicus for such disputes. Similarly, the Labour Appeal Court has through its interpretation of the section, restricted the jurisdiction to entertain residual unfair labour practice disputes relating to benefits, to those benefits to which an employee is entitled ex contractu (by virtue of the contract of employment or collective agreement) or ex lege (by virtue of for example the Public Service Act or any other applicable Act)(see HOSPERSA & another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC) para 9).


17. The applicants referred a case on the basis of an employment right (retirement benefit) which stems from the contract of employment. The latter was not disputed therefore the applicant’s case satisfies the above as it addresses the question of one’s entitlement to amounts that were due to them ex contractu and ex lege in this regard.

18. The Applicants’ case in this dispute only seek retribution in the form of compliance and compensation. The fact that the evidence presented was not challenged informs the notion that the employer (the Respondent) is award of their conduct and require intervention to comply.

19. Thorough consideration of the Personnel Administrative Measures document and Sithole v Nogwaza NO [1999] 12 BLLR 1348 (LC) it is evident that a party in the position of the Applicant’s is entitled to consider a benefit of material nature having some monetary value for the employee as a benefit.

20. Considering the principles laid out on WJ Ludick vs Rural Maintenance (Pty) Ltd case nr: JS 633/07 (unreported) it is evident that the applicant’s claim for unpaid accumulated leave is warranted.

21. The Applicants’ representative argued that the compensation sought by the Applicants is based on a consideration of the PAM document more specifically the calculation relating to payment for capped leave. The applicant presented compensation sought per the calculation and the amount was not disputed by the Respondent.

22. I therefore make the following award.

AWARD

23. The Applicants have proven that an unfair labour practice was perpetrated against them by the Respondent relating to benefits.

24. The Respondent is directed to compensate the applicants for their accumulated capped leave being 74.85 days and 57.13 days respectively.

25. The Respondent is to compensate the First Applicant (Mr Saffers) an amount of Two Hundred and Seventy-Five Thousand, Six Hundred and Thirty-Five Rands and Sixty-One cents (R 275 635.61). The Respondent is also to compensate the Second Applicant (Ms Paulette Rossouw) an amount of One Hundred and Three Thousand, Sixty-Five Rands and Fourty-Two Cents (R103 065.42) for the accumulated capped leave respectively.

Yolisa Ndzuta
Panelist: ELRC