IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC1059-21/22EC
In the matter between
SAOU obo VERMEULEN & 4 OTHERS Applicant
and
EASTERN CAPE DEPARTMENT OF EDUCATION Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 1 JUNE 2022
DATE OF AWARD: 8 JULY 2022
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee
SUMMARY: Whether the Employer (the Respondent) is committing an Unfair Labour Practice on the former Employees (the Applicants) by refusing to compensate them for their leave credits accumulated over the course of employment.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 1st of June 2022.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down and there were no pre-liminary issues.
3. The applicants were represented by Mrs Venitta Van Wyk from the SAOU while the respondent is represented by Euan Hector.
THE ISSUE IN DISPUTE
4 I am to determine whether the Applicant as a referring party is being subjected to an unfair labour practice relating to benefits. More specifically I am to determine whether the employer’s refusal to compensate the applicants for their leave credits accumulated during the course of their employment amounts to unfair labour practice.
THE BACKGROUND TO THE DISPUTE
5. In these proceedings the applicants referred a dispute pertaining to his alleged unfair labour practice that he is enduring at the hand of the respondent.
6. The applicants are pensioners (former employees) of the Eastern Cape Department of Education.
7. The applicants’ respectively ended their active employment and service within the respondent at different dates, thereafter applied for pension benefits and payments at different times.
8. After having submitted their requisite documents pertaining to pension and other benefit payments, the applicants allege that payments however none was made thereafter the dispute which before myself at arbitration stage was constituted.
SURVEY OF EVIDENCE AND ARGUMENT
11. Before addressing the evidence and arguments subject to the submissions, I will address the fact that at the onset of the proceedings the representatives confirmed that of the five applicants, only three were satisfactorily paid out therefore only two claims remained. The evidence and submissions hereinunder shall solely pertain to the two claims that remain.
12. It is trite that when a party avers an unfair labour practice, same party bears the onus to establish the unfair labour practice and must prove same on a balance of probabilities.
13. The applicant called one witness, Mr Hein Vermeulen who testified as follows:
13.1 He retired on the 31st of April 2021 after being an educator since 1983;
13.2 Before his official retirement date he submitted the requisite paperwork and documents;
13.3 He received the lumpsum payment from his retirement;
13.4 When he noticed that the payment for the capped leave that he had accumulated had not been made;
13.5 He requested assistance from his union representative who then undertook to engage with the Department of Education (the respondent) in this regard which then resulted in the proceedings of the day;
13.6 Prior to set down of the day, he had visited various district offices to enquire about these payments although there were promises to address the issue, no payments were made.
14. The applicant’s testimony was subjected to cross examination and the following was ascertained therefrom:
14.1 There are certain forms that are necessary when one applied for payment of accumulated capped leave.
14.2 The Department of Education has been experiencing administrative issues however managed to address certain claims.
14.3 The respondent does not deny that the applicant is entitled to payment for accumulated cap leave however disputes whether the requisite forms were submitted.
14.4 The respondent does not dispute having settled claims similar to that of the applicant.
15. After conclusion of Mr Vermeulen, the applicant closed its case.
16. The respondent did not call any witnesses however sought to raise a point in limine- jurisdiction against the applicant’s referral stating that the referral is late. The latter was raised at the point of evidence and argument and not prior to proceedings (arbitration).
17. The latter was addressed per the Clause 17.8 of the ELRC constitution wherein verbal submissions were made and considered. The outcome thereof shall be placed in the conclusion of this award.
18. Part of the proceedings at arbitration was a directive for the parties to submit written heads in lieu of the dispute and the point in limine’. The written submissions were submitted on the 7th of June 2022.
19. I now turn to the written submissions thereof.
20. The applicant’s submissions can be summarized as follows:
20.1 The first applicant retired after 38 years of service with the accumulated capped leave of 103.63.
20.2 The first applicant retired whilst on a salary notch of R 571 188.
20.3 The first applicant together with four other employee referred the dispute which the respondent acknowledged that they were liable to settle the claims accompanying the dispute.
20.4 The respondent had advised the applicants that it was facing administrative issues pertaining to the payment of accumulated capped leave.
20.5 Th second applicant (Mrs Anel Thompson) passed away on the 29th of August 2021 after 27 years of service.
20.6 At the time of the second applicant’s passing, she was on a salary notch of R438 612 with the accumulated capped leave of 61.57.
20.7 It is indisputable that the respondent bears a responsibility to pay its employees accumulated capped leave upon termination of service by natural causes (death or retirement) and that the applicants have a right to capped leave.
20.8 The applicants oppose the respondent’s jurisdictional challenge.
20.9 The latter opposition is based on the prior engagements between the parties prior to the arbitration proceedings. Furthermore what is of greater importance to this opposition is the inconsistency in application of law by the respondent considering that it had already settled Three (3) applicant claims of the Five (5) in this dispute without raising a jurisdictional challenge. Lastly more importantly, the applicant was raised informally and during cross-examination of a witness.
21. The respondent’s submissions can be summarized as follows:
21.1 The first applicant’s dispute was referred beyond the 90 days from his date of retirement;
21.2 It is in dispute that the applicant submitted all requisite documents as such it is the respondent’s version that the first applicant did not submit the BAS Entity form which is the most important part of the first applicant’s dispute.
21.3 There was no evidence lead relating to the number of days due to the first applicant or the second applicant nor was there any evidence relating to the quantum claimed.
21.4 Granted some of the applicants had been paid however that is because their claims had been processed due to containing all the requisite information.
22. I now turn to the analysis of the submissions in relation to the applicable law.
ANALYSIS OF THE SUBMISSIONS
23. Before I delve into the merits of the dispute, I shall first address the jurisdictional challenge.
24. Both parties note that the jurisdictional challenge was only raised at arbitration, more specifically during cross-examination. In terms of the ELRC Constitution a jurisdictional challenge may raised at conciliation or any time before the commencement of arbitration proceedings. The respondent’s representative elected to raise a jurisdictional challenge at a very peculiar time and in a manner that doesn’t comply with Clause 11 or 15.2 of the ELRC constitution.
25. Further to the above, when a party wishes to raise a point in limine or a jurisdictional dispute, same party must comply with the clause 57 of the ELRC constitution unless same party also seeks condonation for noncompliance of clause 57 when referring its jurisdictional dispute.
26. It is on the basis of the above that I considered and ruled on the respondent’s jurisdictional challenge and therefore dismissed same for noncompliance with the ELRC constitutional clauses as referred to above.
27. I shall herein analyze the evidence and submissions juxtaposed with the applicable law.
28. The premise of all unfair labour practice disputes is an assessment of the employer’s conduct and or omission in lieu of its objective effect on the employee. It is trite law that any party who avers an allegation of unfair labour practice, bears the onus to establish same and prove same on a balance of probabilities.
18. In considering the above, the evidence, arguments and written submissions before me will be assessed juxtaposed to the above premise.
19. Section 186 (2)(a) of the Labour Relations Act specifically defines what constitutes an unfair labour practice and case law has interpreted how conduct (or omission) of the employer can constitute same unfair labour practice. Correspondingly, the abovementioned provision goes as far as placing particular parameters to what may be considered to relate (or apply to) section 186(2)(a) in that it includes conduct (or an omission) that relates to the provision of a benefit.
20. It is not in dispute that the applicants individually enjoy a right to ‘capped leave’ accumulated during their years of service. It is further not in dispute that the applicants are former employees of the respondent wherein the benefit stems from. What I must decide upon is whether the applicants are being deprived of a benefit and whether said denial constitutes an unfair labour practice as per the abovementioned definition.
21. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
22. To determine the above, one must determine where the above benefit stems from more specifically whether there is a statute or practice that is being transgressed herein and in this regard ELRC Resolution 7 of 2001 is applicable.
23. The collective agreement referred to herein above specifies how an employee accumulated leave is calculated for a payout. From the latter collective agreement, further policy was developed and practice implemented wherein employees could claim for their leave payments.
24. It stands to conclude that wherein a claim is submitted, the employer (the Respondent herein) bears the obligation to assess the claim and subject it to administrative process. In the matter before mye this piece of evidence was not disputed as such the representative for the respondent only raised the query as to the documents submitted for assessment and administration. In the premise of the above, it then is deducible that the respondent had full knowledge of its obligation and thus had to onus to advise the applicants of their claims. Further hereto is the fact that the respondent had assessed, administered and paid three (3) of the applicants’ claims therefore performance was initiated however what was outstanding is performance to all applicants.
25. In the premises I make the following award.
AWARD
26. The applicants have established the existence of an unfair labour practice and that the actions of the respondent amount to an unfair labour practice.
27. The respondent is directed to complete the administrative process relating to the applicants claims and subsequently pay by no later than 31 August 2022, the first applicant (Mr Hein Vermeulen) an amount of Two Hundred and Sixty-Two Thousand, Seven Hundred & Thirty-Eight Rands & Twelve Cents (R262 738.12) and the second applicant (Mrs Anel Thomson) an amount of One Hundred and Sixty-Seven Thousand & Fifty-Five Rands & Twenty cents (R176 055.20)
Yolisa Ndzuta
Panelist: ELRC