In the matter between

MR MANUEL LUHALIMA
(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE

(Respondent)

DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was heard on the 21st of August 2020 and 11 September 2020 via Zoom Virtual Hearing. The matter concerns a dispute about the breach of provisions of Section 32 of the Basic Conditions of Employment Act which was to be arbitrated in terms of Clause 69 of the Dispute Resolution Procedure contained in Schedule 1 to the Constitution of the ELRC.
2. Mr M Luhalima, the Applicant, appeared and represented himself on 21 August 2020. Mr Matoti, Labour Relations Practitioner based in Mthatha, appeared for the Respondent on 21 August 2020 and 11 September 2020. On the 11th September 2020 the Applicant did not appear for the continuation of the Arbitration.

3. On the 21st August 2020, the Applicant presented a bundle of documents to be utilised in the presentation of his case.
4. The matter was finalized in the Applicant’s absence, being the 11th September 2020 and digitally recorded.
5. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.

ISSUE TO BE DECIDED
6. The issue to be decided is whether the Applicant is entitled to an award directing the Respondent to rectify the breach of section 32 (3) of the BCEA i.e. the non-payment of the Applicant’s remuneration and what relief is to be awarded.

7. The Applicant claimed that he was underpaid an amount of R172 617.00 for the period of June to December 2018.
8. The Applicant’s case was that the non – payment the difference in remuneration was unfair and constituted a breach of Section 32 (3) read with section 32 (1) of the BCEA.

BACKGROUND TO THE DISPUTE
9. The Applicant provided documentary proof of an offer of employment as a Grade 3 Audiologist at Efata Special School from 11 June 2018 to 31 December 2018.

SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant provided documentary proof of an offer of employment as a Grade 3 Audiologist at Efata Special School from 11 June 2018 to 31 December 2018. The Applicant contended that he had been appointed at Salary Notch “R473 445.00 (maximum, in recognition of previous experience)” and Salary Scale “R390 123.00 – R473 445.00”.

11. The Applicant duly accepted such appointment and commenced employment on the 11th June 2018 to termination date 31 December 2018. The Applicant’s version was that he was appointed at R473 445.00 but was paid the remuneration of R300 828.00, with the outstanding difference being R172 617.00.

12. It is this amount that the Applicant claims.

13. On the 21st August 2020, in the process of Arbitration, the Applicant provided documentary evidence of the BAS Personnel Form and the Letter of Appointment. The Applicant provided an opening statement on the 21st August 2020, at which point the Arbitration process was held in abeyance until the date of 11 September 2020.

14. Due to the Applicant’s absence on the 11th September 2020, there was no further evidence to consider.

15. The Respondent’s representative submitted that as the Applicant was absent on the 11th September 2020 and that no evidence had been adduced by the Applicant, there were no further submissions to be made.

ANALYSIS OF EVIDENCE AND ARGUMENTS
16. In terms of section 32 (3) read with section 32 (1) of the Basic Conditions of Employment Act 75 of 1997 an employer must pay an employee any remuneration no later than seven days after the completion of the period for which the remuneration is due.
17. The Applicant’s case was that the Respondent has committed an unfair act by failing to pay him the difference in remuneration between the two salary “notches” and that he was appointed at the notch of R473 445.00

18. It is trite that an Applicant claiming an entitlement to an amount has to show that they have a right to such amount. If the actual right cannot be proven, the Applicant cannot claim such.
19. The Applicant is of the opinion that he is entitled to the remuneration of R473 445.00 as this is the amount that is stipulated on the Letter of Appointment. However, the Letter of Appointment clearly indicates that this is the maximum amount, in recognition of prior experience.

20. The salary notches are provided below such amount on the Letter of Appointment. It is therefore apparent that the Applicant was not appointed at the maximum notch permissible for the position.

21. The Applicant could not provide any additional evidence in support of his claim, that he had an entitlement to the maximum notch.

22. In the absence of such, I cannot arrive at a conclusion of the validity and legality of the Applicant’s claim and that the Respondent has breached any provision of section 32 of the BCEA.
23. In the circumstances, I make the following award.
AWARD
a. The Applicant’s claim is dismissed as there is no evidence to support that any of the actions of the Respondent were unfair and/or constituted a breach of section 32 (3) (a) read with section 32 (1) of the Basic Conditions of Employment Act 75 of 1997.
b. No order as to costs is made.
Signature:
Catherine Willows
ELRC Panelist