08 April 2025 -ELRC824-24/KZN

Panelist: Brendon Els
Case No.: ELRC824-24/KZN
Date of Award: 04 April 2025

In the ARBITRATION between:

National Teachers Union obo Liziwe Majikijela-Mbobo
(Union / Applicant)

and

Head of Department, of the Kwa-Zulu Natal Department of Education

(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 25 March 2025 and the proceedings were electronically recorded.
The Applicant, Ms L Majikijela-Mbobo was present and represented by Ms Z Khanyile (“Ms Kanyile”) of the National Teachers Union, a registered trade union. The Respondent was represented by its Ms N Nkosi. ISSUE TO BE DECIDED
Whether or not the Respondent must pay the Applicant R28 400,00 for the alleged non-payment of salary. BACKGROUND TO THE ISSUES
The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
4.1. The Applicant is currently employed by the Respondent as a post level 1 educator.
4.2. The Applicant earns a gross monthly salary of R24,291.16 per month.
4.3. The Applicant alleges that the Respondent has short paid her since December 2019 and that the short payments amount to R28,400.00
4.4. The Respondent agrees that it has short paid the Applicant by R28,400.00 but alleges that it was entitled to do so. SURVEY OF EVIDENCE AND ARGUMENT
This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138(7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter. Applicant’s evidence
The Applicant, Ms Majikijela-Mbobo, testified that:
6.1. She was first employed by the Respondent in 2002 and in 2015 she was admitted to 2 hospitals after falling in the bathroom.
6.2. She resigned in 2016 and was re-employed on November 2019 (some 6 years after her resignation).
6.3. In December 2019 her salary was short and when she enquired as to why her salary was short, she was informed that the Respondent was deducting monies from her salary for when she was previously employed in 2015, for leave.
6.4. She was re-employed by the Respondent in 2019 and not reinstated.
6.5. She signed a new contract of employment with the Respondent and the new contract of employment made no mention of short payments or deductions in any way.
6.6. To date, she has never been given any documents regarding the short payment of her salary or deductions and has only been told of them orally by the Respondent.
6.7. Under cross-examination, the Applicant reiterated that she was never told why she was being short paid or the reasons for deductions and that she was just told of the amount she allegedly owed the Respondent. Respondent’s evidence
The Respondent called Ms E Mtshare (“Ms Mtshare”) in support of its case. Ms Mtshare testified that:
7.1. The Applicant used all 36 sick leave days in her 3-year cycle and therefore was temporarily incapacitated.
7.2. Therefore, even if she claims 1-day sick leave, she is required to submit a medical certificate.
7.3. The Applicant submitted an application for sick leave by completing the necessary documents and the Respondent sent them to a third party, Alexander Forbes, for assessment.
7.4. Alexander Forbes found the Applicant’s application inappropriate and was declined and the Respondent wrote a letter to the Applicant informing her of the outcome and the Applicant failed to respond in time and was granted leave, but without pay.
7.5. The Respondent started to start deducting a portion of the Applicant’s salary to recover the monies that were paid to the Applicant whilst on leave.
7.6. The Respondent requested more information from the Applicant and the Applicant attended to the offices of the Respondent on 23 August 2023, where she was again asked for more information so that the Respondent could resubmit the claim to Alexander Forbes and the Applicant failed to do this again.
7.7. The Applicant submitted the required information, and the Respondent again submitted the claim to Alexander Forbes and the claim was again rejected.
7.8. She was not 100% sure if the Respondent had a policy which allowed it to recover outstanding debt if an Applicant is reemployed and “finance” would be able to answer that question.
7.9. Under cross-examination Ms Mtshare declined to comment when it was put to her that because the Applicant was reemployed, a new employment relationship existed between the Applicant and Respondent and that therefore the Respondent could not recover any debt under the old employment relationship. ANALYSIS OF EVIDENCE AND ARGUMENT
It is common cause that at the date of the arbitration, the Respondent had deducted R28,400.00 from the Applicant and therefore had short paid the Applicant by R28,400.00. The Respondent alleged that it had a policy which allowed it to do so. However, failed to produce this policy during the arbitration and even after being given an opportunity to submit this policy as part of the Respondent’s written closing arguments, failed to do so.
Clause 69.1, of Annexure “C” (Dispute Resolution Procedures) of ELRC Resolution 6 of 2016, provides that the General Secretary may promote, monitor and enforce compliance with any Collective Agreement of the Council, within the scope of the Council and in terms of this section 33 and section 33A of the Act.
Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
Clause 69.6 provides that despite clause 69.5, 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 Personal Administrative Measures (PAM), or any other regulations or subordinate legislation promulgated by the Minister of basic Education or MEC for Education in the respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment.
Section 34(1) of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) provides that: an employer may not make any deduction from an employee’s remuneration unless, subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award (Own emphasis).
It is undisputed by the Respondent that the Applicant never agreed in writing to the deduction being made against her salary and therefore, the Respondent may not make said deduction against the Applicant’s salary.
I will now turn to whether the deduction was required or permitted in terms of law, collective agreement, court order or arbitration award. Regulation 13 of the Regulations regarding the terms and conditions of employment of educators (“the Regulations”) as well as paragraph B.12 of the PAM document is an example of law that permits the employer to correct an educator’s salary from the date on which the incorrect salary, or salary advancement commenced irrespective of whether the educator concerned was unaware that an error had been made in the case where the correction amounts to a reduction of his/her salary.
Furthermore, our Courts have consistently held that where an employee was overpaid in error, the employer is entitled to adjust the income in order to reflect what was agreed upon between the parties in the contract of employment, without the employee’s consent. Therefore, whether the Applicant consented to the correction or deduction being made, or not, does not in itself render the deduction unlawful.
Although Regulation 13 of the Regulations as well as paragraph B.12 of the PAM document are indeed examples of law that permits the Respondent to make the necessary corrections and deductions against the Applicant’s salary, they remain silent on whether the employer is empowered to make these corrections or deductions under a new employment relationship, when the incorrect payments were made to an educator under the old employment relationship.
It is common cause between the parties, that they entered into a new agreement, and the Applicant signed a new contract of employment. It was further undisputed by the Respondent that the new agreement made no reference to the old employment relationship and did not make any reference to the debt that the Applicant allegedly owed under the previous agreement between the parties.
Whilst the Applicant may have very well have been incorrectly paid by the Respondent under the previous agreement which governed the employment relationship, and the Respondent may indeed have held the right to make the necessary corrections to the Applicant’s salary under the old agreement, I remain unconvinced that that right is automatically transferred to the new employment relationship. As the new agreement between the parties should logically regulate the new employment relationship.
There is no dispute that the Respondent has short paid the Applicant in the amount of R28,400.00 and that the Respondent has done so to correct the incorrect payments it made to the Applicant under the old employment relationship, which terminated when the Applicant resigned in 2016.
The Applicant led undisputed evidence that she had never agreed to any deductions being made against her salary under the existing employment relationship, and further that the debt which the Respondent alleged she owed, was concluded under the old employment relationship.
The Applicant further confirmed that she was reemployed by the Respondent and signed a new contract of employment in November 2019 and was not reinstated, and although the Respondent sought to rely on its “Debt Recovery Policy”, which it referred to and alleged that this document empowered it to make these deductions, it failed to produce a copy of this policy during the arbitration itself and even after an indulgence was afforded to it to annex it to its written closing arguments.
It is common cause that the parties entered into a new employment relationship and that the Applicant entered into a new contract of employment with the Respondent, which in my view is a new agreement between the parties and should govern the current employment relationship between them. It is further undisputed by the Respondent that the new contract of employment made no reference to the previous employment relationship between the parties, nor did it refer to any debt the Applicant allegedly owed the Respondent under the old agreement.
I therefore remain unconvinced that there have been incorrect payments made to the Applicant by the Respondent under the current employment relationship and that therefore, the Respondent has incorrectly made deductions against the Applicant’s salary, in the amount of R28,400.00.
In the circumstances, I make the following award: AWARD
The Respondent, the Education Department of Kwa-Zulu Natal, is ordered to pay the Applicant, Ms Liziwe Majikijela-Mbobo, the amount of R28,400.00 in respect of the short payments made against her salary.
The amount as referred to in paragraph 25 must be paid to the Applicant by no later than 30 May 2025.