Panelist: Jonathan Gruss
Case No.: ELRC178-26/27EC
Date of Award: 7 October 2026

In the ARBITRATION between:

Mncedisi Eric Ndletyana
(Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: In person

Respondent’s representative: Mr Jacobs

Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, unauthorised deduction from salary.
Section 34(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held on 23 September 2026. The proceedings were electronically recorded. The applicant, Mncedisi Eric Ndletyana appeared in person and conducted his own case. The respondent, Department of Education: Eastern Cape was represented by Mr Jacobs a Chief Education Specialist; Labour Relations. The parties agreed to submit written closing by 30 September 2026. When issuing this award only the applicant filed written closing arguments. The arbitration was postponed on 30 July 2026 on the instance and request of the respondent due to the unavailability of Mr Jacobs due to him having prior commitments.

ISSUE TO BE DECIDED
2. This dispute concerns the alleged breach of Section 34(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended when the respondent deducted R4000.00 from the applicant’s salary during the month of October 2025; month of November 2025; month of December 2025 and the month of January 2026.
BACKGROUND TO THE ISSUES

3. The applicant was advised during February 2027 by the District Director that he was deemed to have been discharged from the service on account of misconduct in terms of section 14(1)(a) of the Employment of Educators Act, Act 76 of 1998 (EEA) as amended. In terms of correspondence dated 23 February 2017 the applicant’s discharge from the service was with effect from 17 October 2016.
4. The respondent’s stance as confirmed by a letter addressed to the applicant dated 24 August 2017 wherein the applicant was informed that there was a salary overpayment for the period 18 October to 31 December 2016 and therefore, he owes the respondent R37 218.72. The applicant was provided with an account number wherein he could pay the alleged debt.
5. A letter of demand address to the applicant by the state attorney dated 25 April 2018 referred to the fact the applicant’s services were terminated on 17 October 2016 and therefore there was an overpayment net salary in the amount of R37 219.12 from November to December 2016.

SURVEY OF EVIDENCE

6. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
7. The applicant testified under oath. As relates to the amounts deducted from his salary, R4000.00 when he was paid his salary in October 2025; R4000.00 when he was paid his salary in November 2025; R4000.00 when he was paid his salary in December 2025 and R4000.00 when he was paid his salary in January 2026.He seeks that he be reimbursed in the amount of R16 000.00 including interest. He never gave respondent permission and therefore there was no agreement entered into between him and the respondent that the respondent may deduct the amounts that it deducted. The applicant further argued that as at October 2025 the debt as alleged by the respondent, of R37 219.12 that he is claimed to have owed the respondent had prescribed in that 3 years has elapsed. The letter of demand issued by the State Attorney on 25 April 2018 and when the deductions commenced in October 2025 had prescribed. Therefore, the deductions were unlawful and not permitted.
8. Under cross-examination the applicant indicated that his last salary was paid to him prior to the Section 14 notice was issued on 20 December 2016. The applicant was referred to the letter addressed to the Head of Department dated 10 April 2026 by the District Director under the heading “response to complaint lodged by Mr ME Ndletyana” wherein the purpose of the memorandum was to provide a formal response to the complaints submitted by Mr ME Ndletyana to the office regarding deduction effected against salary. The correspondence confirms that the meeting was held on 26 January 2026 and during the meeting the applicant expressed dissatisfaction with the deductions following discussions, the following resolutions were agreed upon that the salary deduction would be temporary placed on hold; that the submission would be prepared and forwarded to head office requesting consideration of a refund for deduction already effected (October 2025 to January 2026) based on his claim that he was not informed and he experienced financial hardship. According to the correspondence the meeting was held on 9 February 2026, it was a follow-up meeting held to provide the applicant feedback during which the following was communicated to the applicant: that the deductions had been placed on hold as agreed; the submissions had been forwarded to head office consideration in that the Provincial Office through the Director: Accounting Services indicated that the debt must be formally acknowledged by Mr Ndletyana and repayment plan must be identified, to enable consideration of any request for a refund.
9. The respondent did not tender any evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT

10. Clause 69.1 provides that the Gen 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 LRA.
11. Clause 69.2 provides that for purposes of clause 69, a collective agreement of the Council is deemed to include: any Basic Condition of Employment which constitutes a term of the contract of employment of any employee covered by the collective agreement in terms of Section 49(1) of the BCEA; and subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee’s employer is party to the Council.
12. Clause 69.3 provides that the General Secretary acts in terms of this clause 69 and this also involves the interpretation or application of a Collective Agreement, this clause 24 applies to the exclusion of clause 8.
13. Clause 69.5 provides that the General Secretary may on own discretion or on the request of a party refer an unresolved dispute concerning compliance with any provision of the Collective Agreement to arbitration by commission/panellist appointed by the Council or the CCMA as the case may be.
14. 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 Personnel Administration Measures (PAM), or any regulation or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in respective Province where an educator is employed as it relates to conditions of service, a collective agreement and the contract of employment.
15. It should be noted that the applicant referred his dispute late to the ELRC and applied for condonation. The conciliating Commissioner P Ndabambi correctly so issued a certificate of non-resolution identifying the applicant’s real dispute to be a compliance dispute in terms of clause 69 relating to salary deductions. The commissioner who also dealt with the condonation application confirmed that the applicant referred an unfair labour practice dispute due to unlawful deductions made from his salary. The Commissioner further in her ruling stated that in terms of clause 69 of the ELRC Constitution the ELRC has jurisdiction to entertain the applicant’s dispute.
16. Had I proceeded with an unfair labour practice dispute due to unlawful deductions made from the applicant salary, even based on benefits dispute, I would have found the act of unlawful deduction from an employee salary is not an unfair labour practice.
17. It is clear based on the respondent’s conduct in not calling any witnesses or providing closing arguments justifying the conduct, that they knew that section 34 (1) of the BCEA provides “an employer may not make deduction from an employee’s remuneration unless subject to subsection (2), the employee in writing agrees to the deduction in respect of the date specified in the agreement or the deduction is required or permitted in terms of law, collective agreement, court order or arbitration award.” Due to the fact that Section 34(1) stipulates that deduction may only be made subject to the employee in writing agreeing to the deduction in respect of the date specified in the agreement. There was no agreement entered into between the applicant and the respondent. Therefore, in that regard, the deductions were in contravention of section 34 (2), and the applicant, in terms of clause 69.6, was entitled to claim the amount owing to him in terms of the Basic Conditions of Employment Act in that when the deductions were made, he was short paid. Therefore, he must succeed with his claim.
18. However, in the applicant’s closing argument the relief the applicant seeks is that the respondent be compelled to issue him with his employment contract immediately; for the ELRC to investigate why more than 10 schools in the old township in Gqeberha are defaced and compel the respondent to place the applicant at a suitable position that fits his qualification in operational research and LLB studies and that he be removed from teaching grade 8 mathematics at Khumbulani High School. When the applicant testified, he further wanted an award of compensation for the way he was treated. Unfortunately, the ELRC lacks the powers to grant such relief other than to direct the respondent to reimburse the applicant with interest.

During the arbitration the atmosphere became intense with the applicant and the respondent’s representative having serious words. During the cross-examination of the applicant, the applicant insisted on cross-examining respondent’s representative although he did not tender evidence and was only presenting the respondent’s case. Although the applicant is studying law, it became clear as relates to labour law and conducting such proceedings in terms of the Labour Relations Act, that the applicant unfortunately did not understand the proceedings. The applicant referred to extract from the Companies Act, in his closing arguments the applicant alleged that the conduct of the respondent when he was issued with the section 14 letter intent was to steal, cheat, lie and act fraudulently with the Government Employee Pension Fund when the respondent sent instructions to the GEPF that the applicant had resigned. This according to the applicant was not the truth. The applicant referred to section 3 of the Prevention and Combating of Corruption Activities Act in claiming corruption caused by him being purged from Khumbulani High School by the acting District Director, Mr Hlekani. The applicant made reference to “general offences” under section 3 of the Prevention of Combating of Corruption Activities Act and insinuated that individuals were accepting gratification by using public or private power illegally are guilty of corruption. The applicant further referred to false statements that were delivered by the respondent to the Labour Court that should be taken as punishable wrongdoing which is a serious misconduct by lying to the court.

19. I therefore make the following ruling.

AWARD

15. The respondent acted irregularly or in contravention of section 34 (2) when they deducted R4000.00 on four occasions from the applicant’s salary without the applicant agreeing thereto.
16. The respondent, Department of Education Eastern Cape, is ordered to reimburse the applicant in the amount of R16 000.00 to be paid by no later than 30 October 2025.
17. In terms of Section 143(2) of the LRA the amount of R16 000.00 earns interest at 10.50 & as from 31 January 2026 in terms of section 2 of the Prescribed Rate of Interest Act, 1975.

Name: Jonathan Gruss
(ELRC) Arbitrator