1 September 2022 – ELRC 309-21/22 NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No ELRC 309-21/22 NW

In the matter between

SAOU obo Terry Nicholenas and 54 Others Applicant
and

Department of Education NW Respondent

ARBITRATOR: Kenneth Dlamini

HEARD: 18 July 2022 Virtually.

CLOSING ARGUMENTS: Received on 12 August 2022

DATE OF AWARD: 30 August 2022

DETAILS OF HEARING AND REPRESENTATION

1 The arbitration hearing was held virtually on 18 July 2022. Prior to this date, the matter has been set down for a number of times since October 2021 wherein the trade union had been unable to bring all the Applicants in one venue due to logistical challenges involved in doing so. The parties had to agree to have the matter be dealt with as a stated case.

2 The Applicant, SAOU obo Terry Nicholenas and 54 others was represented by Mr Johan Kruger, a Union Official from SAOU. The Respondent, Provincial Department of Education –North West was represented by Mr Martin Keetile, the Respondent’s Employment Relations Practitioner.

3 The parties had further agreed to send their evidentiary documents and closing arguments. The trade union did send its evidentiary documents in support of its case and closing arguments. Only closing arguments were received from the Respondent.

ISSUE TO BE DECIDED

4 I am required to decide whether or not the Respondent committed an unfair labour practice as contemplated by section 186(2)(a) of the Labour Relations Act 66 of 1995 (the Act) as amended by failing to pay hostel duty allowance to the Applicants for January 2021 and February 2021.

5 The relief sought by the Applicants is the payment of the hostel duty allowance for January 2021 and February 2021. In turn the Respondent maintains that the Applicants were not entitled to receive the hostel duty allowance reason being that there were no learners at the schools’ hostels to be supervised during the two months in question and the Applicants’ application stands to be dismissed.

BACKGROUND TO THE DISPUTE

6. The Applicants are all educators employed by the Respondent in three different districts in the North West Department of Education namely; Dr Kenneth Kaunda, Bojanala and Dr Ruth Segomotsi Mompati. It is alleged that the Applicants did not receive their hostel duty allowances for January 2021 and February 2021 contrary to the Personnel Administrative Measures or PAM which makes a provision for the payment of an allowance to educators who perform supervisory duties at the school hostels. The payment is in the form of a non-pensionable payment based on a specific percentage of the basic payment of the educator.

SURVEY OF EVIDENCE AND ARGUMENT

THE APPLICANTS’ EVIDENCE

7. In support of its case, the trade union submitted a set of bundles containing relevant documents to the dispute including correspondence between the parties, wherein the Respondent indicated that the matter was being looked at by the relevant unit. Other supporting documents included the lists of the Applicants from the three districts who did not receive the hostel duty allowance, amount owed to each Applicant, proof of pay slips, the Personnel Administrative Measures or PAM, the Disaster Management Act and its regulations relating to the re-opening of schools and hostels in January 2021 in the face of covid-19 and previous judgments on the same issue. Bundles 1-4, 5-8, 9-12 and 12-16.

8. The trade union submitted that although the Dr Ruth Segomotsi Mampati district was part of the dispute. The district will no longer be part of this dispute as the individual educators were later paid their hostel duty allowance by the Respondent. Only Applicants from Dr Kenneth Kaunda and Bojanala districts are still owed by the Respondent.

9. Applicants from Dr Kenneth Kaunda who are still owed by the Respondent are Mr EN Nicholenas R 13, 113.64, Mr Abel Rudman R 9, 585.57, Ms Elna Swanepoel R 4, 863.66, Ms Elsabe Fraser R 4, 767.70, Mr Roelf Prinsloo R 4, 815 54, Ms Carina Coetsee R 4, 815.54, Ms Linda Bezuidenhout R 5, 321.87, Mr Erhard van Breda R 5, 060.84, SJ Wiese R 8, 705.75, Ms Masechaba Julia Rantekane R 4, 673.73, Mr Janie Richards R 5, 606.42, Mr John Brink R 4, 863.66, Ms Magriet Pyper R 7, 712.07, Monique Rush R 4, 491.48, Willie Combrink R 5, 762.61 Karien Janse
van Vuuren R 7, 283.92, Ms Maria Nagel R 3, 940.64, Mr Jacques Geldenhuys R 6, 759.92, Ms Catherine Prior R 6, 147.79, Mr Tiens van Heerden R 4, 912.30, E S Jacobs R 7, 070.27, Mr John-Ross Jackson R 4, 491.48, S E M van Staden R 7, 580.08, Mr Percy Smith R 4, 478.00 and Christiaan Johannes Koch R 5, 483.15 bundle 4, pages 113-540 and Annexure T, pages 5-10.

10. From Bojanala District, the trade union submitted a list of the following Applicants namely; Mr
Gerhard Theron R 4, 591.90, Mr Herman le Roux R 7, 446.81, Mr Casper van Wyk R 3, 422.03, Mr Daan Neethling R 9, 704.78, Ms Mercia De Hilster R 2, 960.81, Mr Jannie Olivier R 3, 490.90, DJ Van der Merwe R 10, 375.14, Mr Louis S Liebenberg R 10, 344.77, Ms Sonja van Wyk R 7, 439.82, Mr Hendrik Vivier R 2, 329.56 and Ms Wilna Erasmus R 5, 017.54 bundle 2, Annexure S pages 29-76.

11. The trade union submitted that Chapter C of the PAM deals with allowances and that provision is made for three levels of supervisory duty. Part of the functions of Level 1 and 2 include the economic and administrative functions. These are all to ensure that the hostel functions at an optimal level. These functions need to take place even if there are no learners present and form part of the preparation for when learners will be present. For the Respondent to link payment of the hostel allowance solely on the presence of learners is against the provisions of the PAM and therefore incorrect
12. The trade union argued that it is only the districts of Dr Kenneth Kaunda and Bojanala that did not pay the hostel allowance to the Applicants. Dr Ruth Segomotsi Mompati, bundle 3 initially indicated that they are not going to pay the hostel allowance. But the district decided to pay the Applicants their hostel allowances. Ngaka Modiri Molema district also paid educators their hostel allowances. Some educators in Dr Kenneth Kaunda and Bojanala that did receive their hostel allowances, Annexure R.
THE RESPONDENT’S EVIDENCE
13. As already stated above, the Respondent did not submit any evidentiary documentation, except closing arguments.
14. In its closing argument, the Respondent submitted that the Applicants conceded that they did not supervise any learners during the period in question. The Applicants’ claim is that they had to prepare for the return of learners, but they do not indicate what preparations they undertook to warrant a period of one and a half month.
15. Preparing for Covid-19 regulations requires educators to ensure that there are masks, sanitizers, running water and ensuring that classrooms are well arranged and fumigated. These activities cannot be conducted in one and a half months. It is the responsibility of the School Management Team to ensure the state of readiness of the schools which only started on 25 January 2021.
16. Supervision implies one to one and prompt guidance provided to the learners, along with instructing, monitoring and controlling them when they carry out any task or job to check if they are working according to the schools’ plans and policies, in a timely manner. Besides this, supervision also involves resolving the issues and work-related problems of the employees.
17. None of the above duties were performed during the period in question as per the Applicants’ concession that no learners were present at that stage. Therefore, the Applicants’ evidence should be dismissed.
18. The Applicants were under the impression or perception that their presence at the schools was automatic although no instruction or contract by any authorized person was provided for assumption of duty. The Respondent deliberately withheld the instruction to assume duty due to the absence of learners who had to be supervised and due to covid-19 restrictions.
19. The claim by the Applicants that their contact of employment and their hostel supervision duties are similar is misleading.
20. The contents of Chapter C of PAM are not in dispute as they stipulate how the allowance for hostel supervision should be handled. No reasonable expectation was created for payment of hostel allowance.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
21. The origins of the dispute emanate from the non-payment of a hostel duty allowance to the Applicants by the Respondent in January 2021 and February 2021 on the basis that there were no learners at the schools’ hostels to be supervised during this period.

22. In this matter it is common cause that PAM contains provisions for the payment of an allowance to educators who perform supervisory duties at school hostels. The payment is in form of a non-pensionable allowance based on a specific percentage of the basic payment of the educator. It is further not disputed that these provisions were collectively and nationally concluded, they are part of the terms and conditions of employment of the Applicants in this case. Therefore, the Respondent in this matter cannot unilaterally change those terms and conditions.

23. It is further not disputed that Dr Ruth Segomotsi Mompati district initially refused to pay the hostel duty allowance, but later decided to pay the hostel duty allowance. That Ngaka Modiri Molema district also paid educators their hostel allowances and that some educators in Dr Kenneth Kaunda and Bojanala that did receive their hostel allowances.

24. At the very least, my view is that the decision not to pay the hostel allowance to the Applicants should have been preceded by proper consultation which was not the case in this matter. The Respondent took a unilateral decision not to pay hostel allowance to the Applicants. Based on the evidence presented before me, I am persuaded by the Applicants’ evidence that by refusing to pay the said hostel duty allowance to the Applicants, the Respondent committed unfair labour practice as contemplated by section 186(2)(a) of the Labour Relations Act 66 of 1995 (the Act) as amended.
25. In the circumstances, I make the following award.

Award
25. The Respondent is ordered to pay the hostel duty allowances to the Applicants of both Dr Kenneth Kaunda and Bojanala districts as listed hereunder not later than 16 September 2022.
26. Applicants from Dr Kenneth Kaunda are Mr EN Nicholenas R 13, 113.64, Mr Abel Rudman R 9, 585.57, Ms Elna Swanepoel R 4, 863.66, Ms Elsabe Fraser R 4, 767.70, Mr Roelf Prinsloo R 4, 815 54, Ms Carina Coetsee R 4, 815.54, Ms Linda Bezuidenhout R 5, 321.87, Mr Erhard van Breda R 5, 060.84, SJ Wiese R 8, 705.75, Ms Masechaba Julia Rantekane R 4, 673.73, Mr Janie Richards R 5, 606.42, Mr John Brink R 4, 863.66, Ms Magriet Pyper R 7, 712.07, Monique Rush R 4, 491.48, Willie Combrink R 5, 762.61 Karien Janse van Vuuren R 7, 283.92, Ms Maria Nagel R 3, 940.64, Mr Jacques Geldenhuys R 6, 759.92, Ms Catherine Prior R 6, 147.79, Mr Tiens van Heerden R 4, 912.30, E S Jacobs R 7, 070.27, Mr John-Ross Jackson R 4, 491.48, S E M van Staden R 7, 580.08, Mr Percy Smith R 4, 478.00 and Christiaan Johannes Koch R 5, 483.

27. Applicants from Bojanala District are Mr Gerhard Theron R 4, 591.90, Mr Herman le Roux R 7, 446.81, Mr Casper van Wyk R 3, 422.03, Mr Daan Neethling R 9, 704.78, Ms Mercia De Hilster R 2, 960.81, Mr Jannie Olivier R 3, 490.90, DJ Van der Merwe R 10, 375.14, Mr Louis S Liebenberg R 10, 344.77, Ms Sonja van Wyk R 7, 439.82, Mr Hendrik Vivier R 2, 329.56 and Ms Wilna Erasmus R 5, 017.54

Council Panellist: Kenneth Dlamini.