Panelist: Brendon Els
Date of Award: 28 August 2023
In the ARBITRATION between:
SAOU obo De Wit
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Ms V Van Wyk
Applicant’s address:
Telephone:
Telefax:
Email venitavw@saou.co.za
Respondent’s representative: Ms A Slabbert
Respondent’s address:
Telephone:
Telefax:
Email ansie68lro68@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This matter was scheduled for arbitration on 25 August 2023. The arbitration was held via Zoom (virtual) and the proceedings were electronically recorded.
2. The Applicant, Ms M De Wit (“Ms De Wit”) was present and represented by Ms V Van Wyk (“Ms Van Wyk”), of SAOU. The Respondent, Department of Education – Eastern Cape was represented by Ms A Slabbert (“Ms Slabbert”)
ISSUE TO BE DECIDED
3. I am required to determine if the Respondent must pay the Applicant 102 days of capped leave.
BACKGROUND TO THE ISSUES
4. The following facts were agreed to between the parties as common cause as per their stated case and there existed no dispute of fact.
4.1 The Applicant was an educator and formally employed by the Respondent.
4.2 The Applicant retired on 30 June 2023.
4.3 Upon her retirement, the Applicant had a total of 102 days capped leave due to her.
4.4 The 102 days capped leave amounted to R153 561.61 which is subject to an audit by the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
5. The parties confirmed that all facts were common cause, as captured above. Despite being given an opportunity to do so, both parties indicated that they had no further evidence or arguments to add and there was also nothing they wished to dispute.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. It is common cause that the at the date of her retirement, the Applicant had a capped leave balance of 102 days, totalling R153 561.61 (which is subjected to an audit by the Respondent).
7. It is further common cause that the amount of R153 561.61 is owing to the Applicant.
8. 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.
9. 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.
10. 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.
11. The parties were in agreement that at the date of her retirement, the Applicant was owed 102 days capped leave amounting to a total of R153 561.61 and further that at date of these proceedings the Applicant had not yet been paid.
12. In these circumstances, I make the following award:
AWARD
13. The Respondent, the Department of Education: Eastern Cape, is ordered to pay the Applicant, Ms Janieta Faber, an amount of R153 561.61, which is the 102 days capped leave that she was entitled.
14. The amount as referred to in paragraph 13 must be paid to the Applicant by no later than 29 September 2023.
Brendon Els
(ELRC) Arbitrator