ARBITRATION AWARD
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

In the matter between

SAOU obo LONA LIEBENBERG Applicant

and

DEPARTMENT OF EDUCATION: NORTHWEST PROVINCE Respondent

ARBITRATOR: Monde Boyce

HEARD: 27 November 2023 and 27 March 2024

CLOSING ARGUMENTS: Not applicable

DATE OF AWARD: 08 April 2024

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This matter was set down for arbitration on 27 November 2023 and finalized on 27 March 2024. The matter proceeded virtually on both dates. Dr Johan Kruger, a trade union official from the trade union SAOU, appeared for the applicant while Mr Martin Keetile, the Labour Relations Officer in the department, appeared for the respondent.

[2] I must mention that, during the hearing of 27 November 2023, the position by the applicant, Miss Liebenberg, was that she should have been paid the hostel allowance as she was part of the educators who were paid a hostel allowance after an arbitration award was rendered in their favour by my colleague, Commissioner Kenneth Dlamini on 30 August 2022. The position was further that she (Miss Liebenberg) was mistakenly omitted from the list of educators to be paid as per that award. Mr Keetile, for the respondent, appeared not to take issue with the applicant also being paid the hostel allowance were the applicant to furnish the respondent with relevant information pointing to her (applicant) having been party to the arbitration process presided over by my colleague. I then suggested, to the extent that the claim by the applicant were to be shown to be true and also given that the respondent did not have an issue paying the allowance if that was to be the case, that withdrawal of the dispute be considered in order for the applicant to rather apply for variation of the award rendered by my colleague to included her to the extent her conclusion might possibly have been a mistake. I must however mention that while Dr Kruger agreed to same and while I prepared a notice of withdrawal and sent same to Dr Kruger for the applicant’s signature, neither he nor the applicant returned a signed withdrawal notice. To the extent this was the case, the Council re-scheduled the matter for arbitration.

[3] I should also mention that during the arbitration of 27 March 2024 and when it was confirmed that the relevant information the respondent requested including the exact amount to be paid, was sent through to Mr Keetile, the indication from Mr Keetile was that he needed to make a submission to the finance department for payment of the allowance. While Mr Keetile, on the basis of the information at his disposal, and which information was furnished by Dr Kruger, appeared to concede that it would be pointless not to pay the allowance to the applicant as well given that other educators have been paid, he opted not to have a settlement agreement concluded on account of his not having received the express mandate from the Head of Department (HOD), and he thus left it in my hands to decide how to deal with the issue. While the possibility existed for the matter to be stood down in order to allow Mr Keetile to get a mandate, I concluded that conclusion of the matter would unnecessarily be delayed especially because Mr Keetile could not give a firm indication on when such a mandate could be obtained. It then became necessary that the matter be arbitrated to bring it to its logical conclusion, and this was especially so given that the dispute dates back to the year 2022.

[4] In any event, it matters not that the applicant alleged that she was part of the arbitration proceedings and one of the applicants in those arbitration proceedings in respect of which an award was issued under case reference ELRC 309-21/22NW, a claim that was subject of the proceedings of 27 November 2023 and which claim caused for me to call the applicant to withdraw the dispute in order to file an application for variation. The fact of the matter is that the applicant has since referred a dispute which is subject of the current proceedings, and that dispute, so referred, must be brought to its logical conclusion. It was agreed that oral evidence would not be led to the extent that most issues were common cause with the only issue being that of Mr Keetile, for the respondent, being unable to or not agreeing to conclude a settlement agreement in the absence of an express mandate.

THE ISSUE TO BE DECIDED:

[5] I am required to decide whether the respondent committed unfair labour practice by failing to pay the applicant a hostel allowance, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[6] The dispute was referred as that of unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The applicant’s claim is founded on the respondent’s failure to pay her a hostel allowance that was paid to other educators at the school she is currently teaching at, Meerhofskool Special School. A dispute had been referred in terms of more than 50 educators including educators at the school the applicant is based at, and that dispute related to non-payment of the hostel allowance. An arbitration award was issued in favour of the more than 50 educators at the school. The applicant’s name was however omitted on the list of educators who were to be paid, and she ended up not being paid the allowance. To the extent that the applicant was not paid, she referred an unfair labour practice dispute to the ELRC. The dispute was not resolved at conciliation, and the applicant referred the dispute for arbitration. The applicant seeks payment of the hostel allowance as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicants’ Submissions

[7] For the applicant, Dr Kruger submitted that the trade union referred a dispute in respect of more than 50 educators who had not been paid a hostel allowance, and that the applicant, Miss Liebenberg, was one of those educators. He further averred that an administrator at the union’s office omitted to include Miss Liebenberg’s name on the list of educators at her school who formed part of the dispute referred to the Council in respect of which an award has since been rendered ordering payment of the allowance. This omission, he averred, could possibly be because there are two educators sharing the same surname at the school, the applicant and her husband, Mr Liebenberg. He averred further that the applicant participated in the arbitration proceedings and had also been called as a witness. He also submitted the information to Mr Keetile confirming that Miss Liebenberg was part of the educators who should have been paid. He then argued that the applicant’s omission was an honest error on the trade union’s part and that the applicant is entitled to payment of the allowance and went on to refer the dispute because the respondent failed to act on the information the applicant submitted, and which information was requested by the respondent. The applicant was one of the applicants in the dispute that has since been decided by way of an arbitration award favouring the educators the trade union represented, and the applicant was also a witness in those proceedings.

The Respondent’s Submissions

[8] Mr Keetile, for the respondent, submitted that the applicant did not show that she was party to the proceedings where an award favouring the other educators was rendered and that if the respondent received the necessary information confirming same, it did not have a problem processing payment in respect of the applicant as well. He nonetheless argued that the applicant does not appear on the list in the award made and that where he makes submissions for payment, it would be on the basis that the applicant was possibly mistakenly omitted from the list of educators who were to be paid as per the award rendered of the other educators who had lodged a similar dispute.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[9] In disputes where unfair labour practice is alleged, it is the employee that bears the onus. The success of an employee in his or her unfair labour practice claim thus lies on whether an employee succeeds in discharging the onus. The employer merely bears the evidentiary burden where it must show that it did not commit unfair labour practice as alleged.

[10] At issue before me is the question of whether the applicant should be paid the hostel allowance. The submission by the applicant was that she ought to be paid the allowance because she was part of the group of educators at her school who were already paid the allowance following an arbitration award issued in their favour. Having heard submissions and having gleaned the bundle of documents submitted by the applicant, it is my finding that the applicant has made a case for payment of the hostel allowance. In support of her case, the applicant, in her bundle of documents admitted into evidence, included two awards in two different provinces that related to the very issue of the hostel allowance. In the two cases the applicant referred me to, the issues were basically the same, and the educators in the two cases, respectively, were successful.

[11] Fellow educators at the school the applicant is based at have already been paid the hostel allowances in circumstances that are no different from the applicant’s. I am persuaded by the submissions to the effect that the applicant was possibly mistakenly omitted from the list of educators who had to be paid the allowance at Meerhofskool Special School. I am further persuaded by the applicant’s argument to the effect that her omission from the list of educators could be attributed to her not being the only Liebenberg at the school. The applicant’s husband, Mr Louis Liebenberg, appears on the list of educators who were paid. It does appear, as argued by Dr Kruger, that the administrator at the trade union’s office mistakenly omitted to include the applicant on the list because there already was a Liebenberg from the same school. Objective facts do point to the applicant being part of the educators who should have received the hostel allowance. This is particularly so if one has regard to the fact that it is the same trade union that referred a dispute in respect of educators from different schools in the province, including Meerhofskool where the applicant is based. All the other educators at the same school have since been paid the hostel allowance. That the applicant was mistakenly omitted from the list of educators paid as per a previous award issued under case reference ELRC21/22NW was not gainsaid. That the applicant was entitled to payment of the said hostel allowance was also not gainsaid. There could thus, in my view, be no justifiable reason for non-payment of the hostel allowance to the applicant.

[12] The respondent, on the other hand, did not discharge the evidentiary burden. The focus of its argument was not on whether the applicant should be paid the allowance but rather on whether the applicant could show that she was part of the list of educators who had an award issued in their favour. By its own admission, the respondent did not have an issue paying the hostel allowance if it were to receive information showing that the applicant was indeed part of the educators at her school who have already been paid the allowance. But even if the respondent had submitted and argued that the applicant was not entitled to payment of the allowance, it would still have been required to discharge the evidentiary burden by placing evidence that would point to the contrary. The respondent has not done so. In the circumstances, I am only left to conclude that the respondent committed unfair labour practice by not paying to the applicant the hostel allowance.

[13] Accordingly, I, in the circumstances, make the following award:

AWARD

[14] The respondent’s failure to pay the applicant the hostel allowance constitutes unfair labour practice as alleged, and the applicant is thus entitled to the relief she seeks.

[15] The respondent is ordered to pay the applicant hostel allowance in the amount of R9, 816. 96 (NINE THOUSAND EIGHT HUNDRED AND SIXTEEN RAND NINETY-SIX CENTS).

[16] The respondent must pay the amount in [15] above by no later than 30 April 2024.

Monde Boyce
Panelist: ELRC