IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION HEARING HELD AT PROVINCIAL OFFICES OF THE RESPONDENT

 Case Number: ELRC485-24/25LP
 Commissioner: Moraka Abel Makgaa
 Date: 27 February 2025

In the matter between:

Malematja Thabang Rodney Applicant

And

Education Department of Limpopo Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 This matter was first heard on 18 November 2024 and concluded on 24 February 2025, at Cnr Hospital & Biccard Streets, Provincial Offices of the Respondent, in Polokwane, Limpopo Province.
2 The Applicant was present and represented himself whereas the Respondent was represented by Ms Portia Modipa, employed by the Respondent as its Assistant Director: Grievances and Disputes.
3 The proceedings were conducted in English, and were both digitally and manually recorded.
ISSUE TO BE DECIDED
4 Whether the Respondent’s decision to implement leave without pay against the Applicant constituted an unfair labour practice within the contemplation of section 186(2) of the Labour Relations Act 66 of 1995 (as amended) (“the LRA”). If yes, I am required to determine the appropriate remedy.
RELIEF SOUGHT
5 The Respondent be ordered to reverse all deductions made by the Respondent in terms of its letter dated Thursday, 20 June 2024, and to order the Respondent and the Applicant to conduct verification of the days to be subjected to the leave without pay.
BACKGROUND TO THE DISPUTE
6 On 01 January 2020 the Applicant was appointed on a permanent basis as a PL1 educator post at Kgoogo Primary School (“Kgoogo”) in Masemola Circuit in the Sekhukhune South District.
7 During January 2024 he was temporarily placed at Mabooe Primary School (“Mabooe”) in the same Circuit as a result of threats of allegations of possible eviction by the learner’s parents. During May 2024 he was placed at the Circuit Office on a temporary basis.
8 During July 2024 he was issued with a letter dated Thursday, 20 June 2024 (“the leave without pay letter”) in terms of which he was informed of the Respondent’s decision to implement leave without pay in respect of the days specified in that letter. The days identified for the leave without pay amounted to a total of 57 days.
9 The deductions were limited to a total of 4 days per month. Aggrieved by this decision, the Applicant referred a dispute of unfair labour practice in terms of section 186(2) of the LRA to the ELRC for conciliation.
10 The dispute could not be resolved at the conciliation stage. It was referred to arbitration, and served before me on 18 November 2024 and 24 February 2025. I facilitated the drafting of the pre-arbitration minutes, which were signed by the parties.
11 The Applicant submitted a bundle of documents which was marked as Annexure MTR1, made up of 8 pages whereas the respondent submitted two evidence bundles marked as Annexure “LDOE1” made up of 86 pages, and Annexure “LDOE2”, made up of 8 pages.
12 The parties opted to make their oral closing arguments immediately at the end of the proceedings, which have been taken into account in this matter.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
13 Malematja Thabang Rodney, who is the Applicant in this matter, was the only witness who testified in support of his case. He testified under oath, and his evidence can be summarized as follows. After receipt of the leave without pay letter, on 25 July 2024 he was surprised because he believed that leave without pay was implemented even in respect of the days on which he was at work. He went to the District Office to make enquiries.
14 He also got the PERSAL print-outs on pages 7 and 8. He found out that there were a number of days which appear on the letter he was served with despite the fact that they were already captured on PERSAL as sick leave with full pay. He was also of the view that the department did not follow the right procedure in the sense that the information on the leave without pay letter was written without, first, doing proper verification.
15 He further testified that he was not only disputing the days approved as sick leave with full pay. He was also disputing all the days written in the leave register without pay letter. His challenge is that he could not get hold of the attendance registers of both Kgoogo and Mabooe Primary Schools.
16 What he wants is that he should be allowed to do verification with the principals of the two schools, after which a report should be compiled and submitted to the Circuit Office for a decision as to whether or not “LEAVE WITHOUT PAY” should be implemented against him.
17 Under cross examination, upon arrival at the District Office he met with Ms Mageza, the HR: Manager, who informed him that if he wanted to do a verification of the correctness of the dates affected by the “LEAVE WITHOUT PAY” he should go to the two (2) schools and do such verification with the principals. He once met the principal of Mabooe at the Circuit Manager during which he requested to be furnished with attendance registers.
18 He was referred to the Circuit Manager, who in turn referred him to the District Office. He was as such discouraged to approach the principal of Kgoogo after being told that the matter was at the District Office. What he wanted was for him to have a meeting with the principals in order to do verification before leave without pay could be implemented.
19 He further testified that he could not dispute the proposition that PERSAL would not allow capturing of both sick leave with full pay and leave without pay in respect of the same date(s) because he was not working at the PERSAL section. He testified that he was not sure as to whether leave without pay had been implemented in respect of all the days he is complaining about.
20 He testified that there are dates in respect of which he submitted supporting documents and for those in which he submitted an explanatory letter, especially in cases of urgent private matters.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
21 Precious Mageza’s testimony which was given under oath can be summarized as follows. She was appointed by the Respondent as the Deputy Director: Corporate Services. She testified that there were at least three (3) meetings, during January 2024, April 2024 and May 2024, which were held with the Applicant. One of the issues which was discussed at these meetings was the Applicant’s absenteeism.
22 The procedure is that after receipt of a report from the Circuit in which it is stated that an educator who was absent from work did not submit supporting documents, the district would conduct a verification thereby requesting submission of the attendance registers. After verification, a letter is written to the affected educator giving him or her the opportunity to submit evidence if he or she disputes the correctness of the information which was submitted by the School and the Circuit. This is what was done in respect of the present case of the Applicant.
23 After receipt of the letter from the District, the Applicant phoned her enquiring about the letter. She advised him to submit proof that he was at work. She further testified that the District never received anything from the Applicant.
24 Regarding the Applicant’s complaint that even the days which have been approved and captured on PERSAL as sick leave with full pay have been included in the days to be affected by the Leave Without Pay, she testified that PERSAL would never allow the capturing of the same date(s) both as sick leave with full pay and at the same time as leave without pay.
25 She reiterated that the Respondent remain committed to its position that if the Applicant could bring evidence proving that he was on duty on specific dates which are listed in the leave without pay letter, the Respondent is prepared to revisit its decision on the implementation of the Leave Without Pay.
26 Under cross examination, she insisted that the Respondent’s Labour Relations section conducted verification before the leave without pay letter could be written to the Applicant, and that leave without pay was properly implemented. She also reiterated her evidence that it would not be possible for PERSAL to accept the capturing of sick leave with full pay and leave without pay for the same date(s).

ANALYSIS OF EVIDENCE AND ARGUMENT
27 Clauses 69.6 and 69.7 of PART C of the ELRC Constitution: Dispute Resolution Procedures applicable to the Basic Education and TVET, 25 July 2023 (“ELRC’s Rules and Procedures”) provide as follows:
“Enforcement of Collective Agreements and of BCEA provisions
69.6… an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act, the Employment of Educators Act, the Personnel Administration Measures, or any regulations or subordinate legislation promulgated by the Minister of Basic Education or the MEC for Education in a respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment.

69.7 The ELRC must appoint a commissioner/panelist in terms of section 135 of the Labour Relations Act to attempt to resolve by conciliation any dispute that is referred to the ELRC in terms of clause 69. The ELRC must commence the arbitration of a dispute referred in terms of this sub-clause immediately after certifying that the dispute remains unresolved in terms of section 135(5)”.
28 In the instant case, the relief sought by the Applicant seeks to suggest that he was the victim of erroneous salary deductions, and for that reason he has a claim for failure to pay any amount owing for the purposes of clause 69 of the ELRC Rules.
29 Before dealing with the question whether or not the Applicant has discharged the requisite onus in this matter, I wish to state what the law is in a situation where an employer decides or intends to recover what it believes to be an erroneous payment.
30 In Sibeko v CCMA , the Labour Court dealt with a case where the employer had erroneously paid an employee at a higher salary scale for a period of five months. The employee challenged the employer’s decision to either recover the overpayment or to adjust the salary so as to reflect what was agreed upon between the parties in the contract of employment, contending that such a decision was in conflict with section 34(1) of the Basic Conditions of Employment Act 75 of 1997.
31 The Court, per Revelas J, said the following:
“It is indeed so, that in terms of the Basic Conditions of Employment Act, an employer may not deduct amounts from the salary or remuneration of an employee without the employee’s consent. Where an employee was however overpaid in error, the employer is entitled to adjust the income so as to reflect what was agreed upon between the parties in the contract of employment, without the employee’s consent.”
32 The above legal position was explained in SAMA obo Boffard v Charllotte Maxele Johannesburg Hospital , where the Labour Court, per Ngcukaitobi AJ, said the following:
“…an overpayment as a result of an administrative error does not constitute remuneration as defined in terms of the BCEA. Since it is outside the parameters of the BCEA, an employer is not required to obtain the consent of an employee before effecting the deductions as required by section 34(1) of the BCEA”.
33 In a situation like the one we are dealing with, the Labour Court, in Mopedi Clifford Stein v Minister of Higher Education and Training (Dr Blade Mzimande) , the legal position was explained in the following terms:
“…deductions for days the employee was not at work constitute recoupment for payment done in circumstances where it is not supposed to have been made. The employer is recovering an amount in respect of an overpayment previously made”.
34 On a proper construction, the Applicant’s case is founded on the following two (2) bases. The first ground relates to a belief that the Respondent’s decision is defective in the sense that the dates which are already captured on PERSAL as sick leave with full pay are also listed as part of the dates for which leave without pay was to be implemented. The Applicant has, for all intends and purposes, not been able to either provide any evidence at all or to at least proffer an adequate explanation that the dates which have already been captured on PERSAL as approved sick leave with full pay would also be captured on PERSAL for purposes of implementing leave without pay.
35 On the other hand, the evidence of Ms Mageza, which I am inclined to accept, not only because it had not been disputed or contradicted by the Applicant, but because Ms Mageza’s explanation appears to be logical, should allay the Applicant’s fears that there would not be any deductions in respect of the dates on which the Applicant was absent from work on account of ill-health and had been captured on PERSAL as sick leave with full pay. In any event, both Ms Modipa and Ms Mageza made an undertaking that any deductions which could have been effected erroneously would be reversed upon the Applicant submitting proof, confirming that the deduction(s) was/were erroneously made.
36 The second ground relates to the days which the Applicant testified that they were not yet captured on PERSAL. The Applicant’s explanation was that he had not been able to verify them in order to determine as to whether he was indeed absent from work. This ground is completely unmeritorious. The objective facts in this matter, including on the Applicant’s own version, suggest that the Applicant was once advised by Ms Mageza that he was welcome to provide evidence proof that he was on duty on all or some of the dates listed in the letter of Thursday, 20 June 2024.
37 At the conclusion of the cross examination on 18 November 2024, the Applicant was given another opportunity to go to the two (2) Primary Schools for purposes of obtaining any credible evidence which could be adduced to prove that he was indeed on duty on all or some of the dates listed in the letter of Thursday, 20 June 2024. The Applicant had been unable to provide a good and unacceptable reasons as to why he could not go to the two (2) schools for purposes of obtaining evidence which could be used in support of his case.
38 It should also be borne in mind that copies of the Attendance Register of Mabooe Primary School, which are found on pages 12 to 79 of Annexure “LDOE1”, specifies the respective days on which the Applicant was absent from work without permission and/or valid reason. This evidence had not been disputed by the Applicant.
39 The inevitable conclusion is that the Applicant had not been able to adduce any evidence to support the claim that even days on which the Applicant was at work had been included in the leave without pay letter. It was therefore not possible for the Applicant to challenge the contention that the Respondent was, and still is, justified to deduct the amount paid to the Applicant for the days he was not at work, because the payment was made in error.
40 In as far as procedural fairness is concerned, in SAMA obo Boffard v Charllotte Maxele Johannesburg Hospital, supra, it was held that the structure of the BCEA as a whole suggests that in all instances involving demands for repayment of money already paid to an employee, the deduction should at least be preceded by a fair hearing.
41 In casu, the Applicant was duly notified of the deductions to be made in connection with what was described as “continuous absenteeism from Kgoogo Primary School and Mabooe Primary School”. According to the undisputed evidence of Ms Mageza the Applicant was advised to submit evidence if he was of the view that the leave without pay was unwarranted. Secondly, the undisputed evidence suggests that the deductions were made as from October 2024. The Applicant was, as correctly argued by Ms Modipa, afforded sufficient time to state his side of the story before the actual implementation of the leave without pay.
42 In the premises, it is my finding that the Applicant had not been able to discharge the onus of showing that the Respondent was guilty of a failure to pay any amount owing within the contemplation of the provisions of clause 69.
43 The Applicant has also not been able to adduce evidence to prove that the Respondent’s decision to implement leave without pay for the days on which the Applicant was absent from work without authorisation, constituted an unfair labour practice for the purposes of section 186(2) of the LRA.
AWARD
44 The Applicant’s claim of unfair labour practice in terms of section 186(2) of the LRA is hereby dismissed.

DATED AND SIGNED AT POLOKWANE ON THIS 27TH DAY OF FEBRUARY 2025.

                       
 MORAKA ABEL MAKGAA