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12 December 2024 – ELRC528-24-25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

                        Case No: ELRC469-24/25EC

In the matter between

Garth McIvan Jacobs Applicant

and

EASTERN CAPE DEPARTMENT OF EDUCATION Respondent

Arbitrator : Pumeza Ndabambi
Date : 22 November 2024

SUMMARY: Section 69 – ELRC Constitution – Enforcement of Collective Agreements and BCEA provisions: Non-payment of acting allowance.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

  1. This matter came before the Education Labour Relations Council (ELRC)for arbitration, in terms of section 69 of the ELRC Constitution. The Applicant, Mr Garth McIvan Jacobs, appeared in person and the Respondent, Department of Education – Eastern Cape was represented by Mr Euan Hector, the Labour Relations Officer for Sarah Baartman District.
  2. The proceedings were held virtually through Ms-Teams and were recorded electronically.

BACKGROUND TO THE DISPUTE

  1. The Applicant acted in the position of Chief Education Specialist (CES) and was paid a portion of his acting allowance. He therefore seeks payment of the outstanding amount of the acting allowance.

EVIDENCE AND ARGUMENT

  1. Both parties agreed that the Applicant indeed acted in the position of CES from 1 January 2022 to 31 July 2024 and the position was filled thereafter. The Applicant was only paid for the period of 1 March 2023 – 30 September 2023. The unpaid period and applicable rate of pay, based on information drawn by the Respondent from PERSAL, is detailed in the table below:

Unpaid period Monthly allowance Calculation Total due
1 Jan 2022 – 28 February 2023 (14 months) R5 175.75 R5 175.75 X 14 R72 460. 50
1 Oct 2023 – 31 July 2024
(10 months) R6 312. 00 R6 312. 00 X 10 R63 120. 00
TOTAL DUE R135 580. 50

  1. The Respondent is not opposed to the proposed remedy and seeks an arbitration award to that effect.

ANALYSIS OF SUBMISSIONS

  1. Section 69 of the ELRC Constitution 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 section 33 and section 33A of the Act.
  2. Section 69 (2)(1) of the ELRC Constitution provides that a Collective Agreement of the Council is deemed to include any basic condition of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA.
  3. In this matter it is common cause that the Applicant acted in the position of CES for the period of 31 months and was entitled to an acting allowance. The Respondent paid a portion of such acting allowance and did not pay the amount of R135 580. 50 due for a period of 24 months at the rates of pay agreed upon by the parties as outlined in the evidence above.
  4. In the circumstances, I therefore find that the Applicant is owed an acting allowance by the Respondent and that such acting allowance constitutes remuneration. I further find, as parties also agree that the remuneration due to the Applicant was not paid by the Respondent and the non-payment thereof violates the terms of the Applicant’s acting appointment.
  5. In the circumstances I must remedy the non-payment, as prayed for by the Applicant and agreed upon by the Respondent as outlined in paragraph 4 and 5 above.

AWARD

  1. The Respondent, Department of Education – Eastern Cape, is ordered to pay the acting allowance due to the Applicant, Garth McIvan Jacobs, amounting to R135 580. 50.
  2. The Respondent, Department of Education – Eastern Cape, is ordered to pay the acting allowance of R135 580. 50, to the Applicant, Garth McIvan Jacobs, by no later than 31 December 2024.

Signed at Gqeberha on this 22nd day of November 2024.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL