14 July 2025 – ELRC1370-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT JOHANNESBURG

Case No: ELRC1370-24/25GP

In the matter between

SAOU obo M. E. NIEMAN Applicant

and

GAUTENG DEPARTMENT OF EDUCATION Respondent

ARBITRATOR: NATHALIE CHRISTOFFELS-WILLEMSE

HEARD: 20 JUNE 2025
FINALISED: 20 JUNE 2025
DELIVERED: 14 JULY 2025

ARBITRATION AWARD

Details of hearing and representation

This is an arbitration award for the matter between employee, SAOU obo M.E. NIEMAN (hereinafter referred to as the Applicant) and employer, GAUTENG DEPARTMENT OF EDUCATION: GDE (Hereinafter referred to as the Respondent).
The arbitration took place on 20 June 2025 at the Millennium Primary School in Krugersdorp, Gauteng.
The applicant was represented by Mr. H. Steenkamp, a union official from the South African United Organisation (SAUO), a registered trade union. The respondent was represented by Advocate C. Trent.
The proceedings were conducted in English. The matter followed an inquisitorial approach.
The hearing was digitally recorded, and manual notes were also taken.
I must place on record that both parties agreed to submit written closing arguments by close of business on 27 June 2025. Both parties complied and the submissions were duly considered.
The applicant prepared a joint paginated and indexed bundle of documents. The bundle was marked “A1-71”. As regards the status of the documents, the parties agreed that the documents were what they purport to be, however, they reserved the right to challenge its contents.
At the start of the sitting, parties were assisted in respect of narrowing the issues. Parties were also cautioned in respect of their evidentiary burden and onus in line with the narrowed issues and provisions of the Labour Relations Act 66 of 1995 (as amended) (hereinafter referred to as the LRA).

The issue’s to be decided:

The purpose of this arbitration is to determine whether the Respondent had committed an act/omission of unfair labour practice in relation to the benefit: rental allowance of the Applicant, in terms of section 186(2)(a) of the LRA.
Should I find that the Respondent was unfair, I am required to grant the appropriate relief in accordance with the provisions of the LRA.

The background to the dispute

It was common cause that the applicant was employed by the respondent in the North West Province since January 1992. She applied for a Deputy Principal post in Gauteng, was successful, and was officially appointed on 9 September 2022. Following her appointment, she was transferred to the Gauteng Province and placed at Fochville High School (“the School”).
The transfer gave rise to several challenges which formed the basis of the dispute. The applicant’s employment benefits were incorrectly captured during the transfer process, and she was recorded as a new employee, resulting in the loss of all her benefits, including her Persal number.
The applicant contended that, following her transfer to Gauteng, the respondent failed to pay her rental allowance of R18 000.00. The respondent admitted that the non-payment arose from an administrative error when the appointment date of the applicant was incorrectly recorded.
It was common cause that, in terms of PSCBC Resolution 7 of 2015, the respondent pays a housing allowance of R1 200.00 per month to eligible employees from 1 July 2015. Employees without property ownership receive R900.00 monthly, with the balance of R300.00 allocated to a savings facility to assist with future home ownership.
It was agreed that in terms of clause E2.3.2 of the Personnel Administrative Measures (PAM), employees appointed before 1 July 2015 receive a rental allowance of R900.00 per month, this amount is paid directly to the employee and not into a savings facility.
As a result of the incorrect capturing of the applicant’s appointment date, she was erroneously recorded as a new employee, and her housing allowance was paid into a savings facility instead of being paid directly to her.
It was further common cause that the respondent outsources the processing of personnel data, salary payments, and housing allowances. The Human Resources unit submits appointment and transfer details to the Department of E-Gov for system implementation, after which the DPSA manages the savings facility and related payments.
The applicant referred an alleged unfair labour practice dispute in February 2025 with a condonation application attached to it. A Condonation Ruling was issued on 7 April 2025. Thereafter the matter came before me on 20 June 2025. The applicant sought the payment of the R18 000.00 which was paid into a savings facility and compensation for the unfair labour practice.

Summary of evidence and argument
The testimony led by the witnesses’ are fully captured on the recording of the proceedings. What follows is a summary of the material and relevant issues I must determine.

Applicants Evidence:
The Applicant testified on behalf of her case. She testified under oath, and I summarized her evidence as follows:

Ms. Nieman testified that: she lodged a grievance with the respondent claiming payment of her outstanding rental allowance of R18 000.00. In the grievance outcome, dated 20 August 2024, the respondent confirmed her entitlement to the allowance and advised that the matter would be referred to E-Gov and DPSA for processing.
Despite this, she testified that, as at the date of arbitration, the amount remained unpaid, leaving her with no option but to refer the dispute to the ELRC.
Ms. Nieman testified that prior to her transfer to Gauteng, she received a monthly rental allowance of R900.00, a benefit available to all eligible employees. Following her promotion, the respondent unlawfully discontinued the payment. Although the respondent admitted to the error and undertook to correct it, no action was taken.
She further testified that despite numerous follow-ups with HR clerks, senior management, and through her trade union, her efforts were ignored, and no resolution was forthcoming.
Ms. Nieman testified that the non-payment of her housing allowance caused her financial hardship, as she had budgeted for and relied on the R900.00 monthly payment. In the absence of the allowance, she was compelled to use her credit facility to meet her expenses. She regarded the respondent’s conduct as unfair and unacceptable, given that the allowance was an entitlement.
She further described the experience of having to fight for her lawful entitlement, despite being ignored by the respondent, as undignified.
During cross-examination: the applicant confirmed that, from 2015, employees appointed after that date who did not own property had their housing allowance allocated to a savings facility. She maintained, however, that she was employed prior to 2015, and in terms of the PAM document, her rental allowance was payable directly to her. She was aware that following her transfer they captured her as a new employee, she explained it was wrong and that was the reason for the allowance paid into a savings.
The applicant testified that the respondent failed to treat her fairly. She sought compensation for the unfair treatment, stating that the respondent humiliated her and disregarded her concerns. She asserted that the error was of the respondent’s making, and she was compelled to challenge them to have the matter addressed.
Nothing further emerged from cross-examination and there was no re-examination.
The Applicant subpoena a witness.

Witness 1: Ms. Malesomo Welheminah Mothiba

Mothiba testified that she was the assistant director of the respondent, she reports to the Deputy Director, Mr. X. Kheswa. Her main responsibilities involved HR functions: recruitment, appointments, salaries and benefits.
She explained the procedure for housing allowance, upon appointments staff complete forms to apply for housing allowance, her division will process the form and forward it to Department of E-Gov for implementation on the system. All employees qualify for housing allowance. When employees transfer or are promoted, the benefit remains.
She was aware of the applicant’s case, she tried to assist in the matter. The housing allowance was eventually reinstated for the applicant. She explained that housing allowance, at the time of the arbitration, amounts to R1900.00, employees appointed from 2015 will receiving housing allowance, but it was placed in a savings facility. However, employees employed prior to 2015 are paid R900.00 which reflects on their payslips.
She confirmed the error made in the applicant’s case. The applicant was not supposed to be added as a new employee with a new persal number. She testified that the respondent was negligent. She attempted to correct the error, she was in touch with DPSA to repay the applicant, but no response was received.
It was her evidence that the respondent must correct the error by combining the two persal numbers so that it does not impact the benefits of the applicant.
During cross-examination the witness explained the role of E-gov and DPSA. She explained her involvement was to get DPSA to pay the applicant and to correct the information. The respondent needs to instruct DPSA to merge the persal numbers to reflect a continuous service for the applicant.
Nothing further emerged from cross-examination and re-examination.
The applicant closed her case.

Respondent’s Evidence:
No witnesses testified in support of the Respondent’s claim.

The Respondent closed its case.

Analysis of evidence and argument:

When an employee alleges that an act of unfair labour practice has been committed by an employer, the onus of proof is on that employee to show that the employer had committed an act or omission amounting to unfair labour practice. The onus in this case was therefore on the Applicant to show that the conduct of the Respondent amounted to an unfair labour practice pertaining benefits: housing/rental allowance.
The alleged act of unfair labour practice in this case related to the Respondent failing to pay housing/rental allowance in terms of the PAM policy. The Applicant, in this matter, therefore had to show on a balance of probabilities that the housing allowance amounted to a benefit and that the Respondent deviated from the PAM policy which constituted an act of unfair labour practice on the part of the Respondent.
In addition, it was the Applicant’s claim, on the basis of an unfair labour practice, that she was unfairly deprived of the benefit. An example would be where an Employer must exercise the discretion to decide if such benefit accrues to an Employee and exercises such discretion unfairly.
Regard was had to Apollo Tyres SA (Pty) Ltd v CCMA and others [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (handed down on 21 February 2013) the Labour Appeal Court held that: “a benefit in terms of the LRA means existing advantages or privileges to which an Employee is entitled ex contractu or ex lege or granted in terms of a policy or practice, subject to the Employer’s discretion”.
From this authority a “benefit’ is well defined. The benefit would stem either from a contract or law or policy.
In this matter, there was no dispute that the housing allowance constituted a benefit. It was common cause that, prior to her transfer and appointment as Deputy Principal, the applicant received a housing/rental allowance in terms of the applicable PAM policy. This policy conferred an advantage on employees, arising from a contract, legislation, policy, or established practice.
On the evidence and in line with established legal authority, I am satisfied that the housing/rental allowance constituted as a benefit. The applicant’s entitlement to this benefit was both undisputed and apparent from the plain reading of the relevant policy (PAM) and the evidence presented.
The benefit was incorrectly withheld following the applicant’s promotion and transfer to Gauteng. The respondent, through either its officials or service providers, erroneously recorded the applicant as a new employee, resulting in her housing allowance being allocated to a savings facility instead of being paid to her directly.
In Apollo Tyres SA (Pty) Ltd v CCMA and Others , the Labour Appeal Court quoted from Du Toit et al , with approval on the meaning given for the term / word “unfairness” as follows: “unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended”.
The respondent acknowledged that the housing allowance was incorrectly withheld due to an administrative error. The question, however, was whether this error amounted to unfair conduct. The answer, on the evidence, must be in the affirmative. Both the applicant and the subpoenaed witness, Ms. Mothiba, were credible and reliable. Their evidence revealed the respondent’s failure to resolve the matter, characterized by capricious and inconsistent conduct. Despite the simplicity of the resolution—merging the applicant’s old and new persal numbers and effecting payment—the respondent failed to address the issue for two years, during which the applicant was ignored and given no meaningful assistance. Even Ms. Mothiba experienced difficulty in resolving the matter.
The respondent’s conduct was arbitrary and unjustifiable, and amounted to unfairness. From the above authorities, it only becomes an unfair (act/omission) labour practice when one can show that the discretion exercised by the employer, was without reason or based on a wrong principle or in a biased manner. The conduct of the respondent was unexplained. For two years they were unable to correct their administrative error. There was no reasonable explanation why the error was not corrected or why it had to take two years to correct it. The respondent has well written and established policies. It should not require its employees to refer disputes of this nature to correct administrative errors.
Consequently, it was my finding that the conduct by the respondent amounted to an act of unfair labour practice in terms of the housing allowance benefit due to the Applicant.
The applicant gave extensive evidence of her humiliation and repeated requests for the respondent to correct the error. Despite a grievance outcome in her favour, the respondent continued to act unfairly. Both parties provided extensive arguments on a solatium to be awarded to the applicant.
Thus, taking into account the nature of the unfair labour practice, the impact on both parties, the emotional distress and the seriousness of the matter. Regard was had that the remedy is not a punitive measure. Therefore, any compensation award would not assist. The respondent must rectify the error and comply with the PAM by paying the applicant the R18 000.00 rental allowance and the merging of the persal numbers of the applicant in order to reinstate all her benefits due to her.
I accordingly make the following Award:

Award

I therefore find that the Respondent, GAUTENG DEPARMENT OF EDUCATION: GDE, has committed an act of unfair labour practice in terms of section 186(2)(a) of the LRA against the Applicant, SAOU obo M.E. NIEMAN, in relations to the housing/rental allowance.
The respondent, GAUTENG DEPARMENT OF EDUCATION: GDE, is ordered to compensate the applicant, SAOU obo M.E. NIEMAN, in the amount of R18 000.00 (eighteen thousand rand), being the unpaid housing/rental allowance due to her for the period September 2022 to April 2024.
The total amount (paragraph 54) is to be paid to the applicant, SAOU obo M.E. NIEMAN, by no later than 30 August 2025.
The respondent, GAUTENG DEPARMENT OF EDUCATION: GDE, must immediately direct the Department of E-Gov and DPSA to merge the old and new PERSAL numbers of the applicant, in order to reinstate her housing allowance benefit.

Thus, signed and dated on 14 July 2025.