ELRC206-23/24LP

Case Number: ELRC 206-23/24LP
Commissioner: Matloga N
Date of Award: 08 July 2024

In the ARBITRATION between

Morema Justice and 269 others
(Union/Applicant)

And

Education Department of Limpopo
(Respondent)

DETAILS OF HEARING REPRESENTATION
1. This matter was heard under the auspices of the Education Labour Relations Council (ELRC or the Council) on 27 June 2024 in Tzaneen. The Applicants were represented by Ms. Bianca Perry a legal representative from Thomas and Swanepoel Attorneys whilst the Respondent (Education Department of Limpopo) was absent and not represented.

2. The proceedings were conducted in English and digitally recorded. Prior the commencement of the hearing, the employer submitted bundles of documents to be admitted as evidence. The employer’s bundle was named ‘Bundle R’.

BACKGROUND TO THE ISSUE
3. The Applicants are employed by the Respondent as educators. They referred a dispute of unfair labour practice in terms of section 186 of the Labour Relations Act 66 of 1995, as amended (the Act or LRA). This came after the withdrawal of the rural incentive benefit. It is the withdrawal of this incentive which is in contention. The Applicants seek compensation as a relief to such unfair labour practice by the employer.

4. It is important to note that this matter has a long history of postponements which caused inordinate delay in its finalization. This goes against the LRA which espouses speedy resolution of labour disputes. In National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others (2003) (3) SA 1 (CC), the Constitutional Court recognised this principle and held as follows at paragraph 31:
“By their nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily”.

5. There is sufficient evidence that the Respondent was served with a notice of set-down. The notice was forwarded to the employer via electronic mail. There is also confirmation that the employer received the notice.

6. Before commencement of the delayed proceedings which started at 12:40, the Respondent
Representative was called as a reminder of the scheduled processes. He indicated that he had an appointment with ophthalmologist. This came as a surprised because one of the employer’s officials indicated through electronic mail that the Council may schedule the matter for 27 June 2024 in Tzaneen.

7. Despite that a zoom meeting link was created and shared to accommodate the employer. After an adjournment of close to three hours, the employer representative was unreachable on his cellular phone.

8. In accordance with Section 138 (5) (b) of the LRA, I exercised my discretion and proceeded with the matter in the absence of the respondent after having satisfied myself that the respondent was afforded a fair opportunity to be heard but decided not to attend.

ISSUES TO BE DECIDED
9. I am required to determine whether the Respondent’s conduct amounted to unfair labour practice. If I find that the employer’s conduct was unfair, I must order an appropriate relief. The Applicants sought a remedy of compensation in case I find in their favour.


SURVEY OF SUBMISSIONS AND EVIDENCE
10. What follows is a summary of evidence presented at the arbitration hearing on those aspects I perceived to be penitent to the issue to be determined. The Applicants led their evidence through their affidavits and testimony by two witnesses.

Applicants’ case
Justice Nkoko Morema testified under oath as follows:
11. He is employed by the Respondent as educator at Ramasete High School which is situated in Ga-Sekororo. The school is regarded by the employer as a rural school. The same goes to the other Applicants’ schools where they are employed.

12. At first all of them qualified and they were receiving the incentive which was later withdrawn by the then Minister of Basic Education (Mrs. AM Motshekga) effectively from 1 April 2022 despite that the Personnel Administrative Measures (PAM) which forms the terms and conditions of their employment still provides for the payment of the incentive. The last amount of payment received by educators in March 2022 was R2 333. 65 per month.

13. The non-payment of the benefit has affected the Applicants negatively in their duties and performance because the funds used to incentivise and assist them with basic amenities of their difficult daily lives in rural areas. The money also played a crucial role in assisting leaners with their basic educational needs.
Dikeledi Godlive Matlou testified under oath as follows:

14. She is employed by Respondent at Maganwana Primary School as a Grade R educator. Like the other Applicants, she is working under difficult conditions which also affected her health. The benefit used to assist her and the leaners immensely and the withdrawal thereof negatively them.

ANALYSIS OF EVIDENCE AND ARGUMENT
15. I will not regurgitate the evidence as led by the Applicants but only give brief reasons for my findings as required by section 138 (7) of the LRA.

16. Section 186 (2) (a) of the LRA, defines unfair labour practices with regard to promotion as follows:
“‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”.

17. In terms of Section 186 (2) (a) disputes relating to unfair labour practice relating to provision of benefits, the employee bears the onus of proof on a balance of probabilities. In other words, an employee who alleges that he or she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the disputed labour practice, if it is disputed, but also that it is unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.

18. Fairness depends on the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. According to Du Toit, ‘unfair' implies failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

19. Paragraph E.1.2.1.1 of PAM provides with the purpose of the measures relevant to the payment of incentives to educators being to provide for the payment of incentives to academically and/or professionally qualified educators who qualify for incentives by meeting certain prescribed criteria. Whilst E.1.2.4 instruct the provincial department of education to pay the incentive in the form and to the extent of a non-pensionable allowance in cash or in kind.

20. In the matter before me, the employees led unchallenged evidence that they were subjected to unfair labour practice because the employer withdrew the rural incentive despite that PAM provided them with same. I have no reason not to believe the Applicants in their claim.

21. I find that the Applicants were subjected to unfair labour practice as alleged. Now that I have determined that the Applicants were subjected to unfair labour practice by the employer, I am required to determine appropriate relief.
22. The unfair labour practice experienced by the Applicants influences a wide range of remedies available to them. In the present case I am of the view that compensation will be an appropriate relief as sought.

AWARD
23. The Applicants were subjected to unfair labour practice.

24. I order the Respondent to pay the Applicants a total amount combined of R17 642 394.

25. From the total combined amount of R17 642 394 each Applicant is to be paid R65 342. 20 which was calculated as follows:
R2 333. 65 x 28 months (thus from 30 April 2022 to 31 July 2024) =R65 342. 20.

26. The above amount is due and payable by the Respondent to the Applicants on or before 31 July 2024. The stated amount will start generating interest in terms of the provisions of Section 143 of the Act immediately after the 31st of July 2024, should it remain unpaid afterwards.

27. No order is made regarding costs.

Matloga N
Arbitrator/Panellist: ELRC