In the matter between
SAOU obo Z KRAMER & ANOTHER Applicant
and
DEPARTMENT OF EDUCATION-EASTERN CAPE Respondent
ARBITRATOR: YOLISA NDZUTA
HEARD: 2 MARCH 2022
DATE OF AWARD: 11 MARCH 2022
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – unfair labour practice is conduct by the employer relating to, 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 an Unfair Labour Practice has been perpetrated by the Employer due to unauthorized deductions
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on the 2nd of March 2022.
2. At the onset of the proceedings, the parties confirmed receipt of the notice of set down.
3. The Applicant was represented by Ms. Debbie Harvey of the SAOU whilst the Respondent (Employer) was represented by Ms. Hendriena Stucki.
4. The parties advised that the matter was a dispute regarding unwarranted deductions made by the Respondent against the salaries of the Applicant for bond payments although same bonds had been settled.
5. The parties had not filed a Pre-Arbitration minute however the parties confirmed that the matter is not complex to constitute a sitting in terms of clause 15 of the ELRC constitution. Same parties averred that the matter could be explained sufficiently enough to allow the arbitration proceedings to continue as set down.
THE ISSUES IN DISPUTE
6. I am to determine whether the Respondent’s deductions from the Applicants’ salaries constituted unfair labour practice.
THE BACKGROUND TO THE DISPUTE
7. In these proceedings the Applicants referred a dispute pertaining to alleged unfair labour practice. The Applicants allege that they both had bond payments deducted from the respective salaries after having informed the Respondent that they both had settled their respective bonds.
8. The Applicants are employed by the Respondent as educators in different schools. Mrs. Zurieta Kamer (the first Applicant) works at Greenwood Primary School while Mr. Quinton Rudman (the second Respondent) works at Westering High School.
9. The Applicants averred that they both had mortgage bonds with different bond holders and had agreed that the monthly instalment be deducted from their respective salaries.
10. The Applicants averred that upon settling their respective mortgage bonds, they advised their employer (the Respondent) and followed the necessary process to ensure that there wouldn’t be any further deductions. The Applicant placed on record that there was a specific procedure outlined within the employer’s workplace policies that had to be adhered to and that they had done so.
11. None of the above was disputed by the Respondent rather the Employer explained that it was making means to rectify the cause of the dispute.
12. The above concession therefore means that the matter is not contested.
SURVEY OF EVIDENCE AND ARGUMENT
13. After due consideration of the above I will place hereinbelow a summary the averments made by the Applicants.
14. As placed above, there are two applicants in this matter as such we will place their respective averments separately hereinbelow.
ANALYSIS OF THE SUBMISSIONS
15. It is established in law that when a party refers an unfair labour practice dispute, same party bears the onus to prove on a balance of probabilities that such unfair labour practice exists and same is administered against them.
16. Considering this matter, the arguments and submissions before myself will be assessed juxtaposed to the above premise.
17. Section 186(2) of the LRA defines unfair labour practice as meaning:
“any unfair act or omission that arises between an employer and an employee involving:
(a) unfair conduct by the employer relating to benefits, 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,
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
18. The Applicant referred this dispute on account of section 186(2)(a).
19. In their submissions the Applicants explained that their dispute pertains to deductions executed by the Employer after both Applicants had advised the Employer (Respondent) that their respective home loans had been settled.
20. The Applicants submitted that they followed the compulsory process by completing BAS Entity Maintenance form and submitting same with the necessary annexures. The Applicants further submitted that they received confirmation that their requests were captured as such they did not anticipate the deductions.
21. The Respondent commenced by explaining that they (the employer) concede that the stop order deductions post notice of cancellation were unwarranted and had engaged in a process of reimbursing the Applicants.
22. Same Respondent placed on record that they (the Employer) had reimbursed the Applicants with a month each applicant of the deductions made.
23. The Respondent then conceded that there was an administrative error which they are rectifying as such placed on record that they had progressed in the process of concluding the issue as such Mr Rudman had a sundry payment advice generated whilst they were engaging the distribution list to assist Mrs Kramer with her refund.
24. The locus classicus case that addressed the issue of benefits is Apollo Tyres South Africa (Pty) Limited V CCMA (DA1/11) [2013] ZALAC 3, in the latter case the court defined the word benefits under section 186(2)(a) of the LRA as “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”. It is not in dispute that this matter pertains to the process of the Employer (the Respondent) and how same are not being complied with by same party regardless of any excuse or reason furnished.
25. By virtue of the Respondent’s concession, It is not in dispute that the Applicants are subject to unfair conduct perpetrated by the Employer (the Respondent) which amounts to an unfair labour practice.
26. Unfair labour practice by definition considers the conduct of the Employer and is thus an objective assessment. In Magoshi v Gauteng Department of Education (JR864/15) [2018] ZALCJHB 311; (2019) 40 ILJ 168 (LC) (2 October 2018) the court emphasises the definition of unfair labour practice so as to include ‘any unfair conduct and or omission perpetrated by an employer on an employee pertaining the prescripts of section 186(2)(a).
27. In the premises I make the following award.
AWARD
28. I find that the employees (Applicants) have proven that the Respondent has committed an unfair labour practice.
29. The Employer (Respondent) is to pay an amount of Four Thousand, Seven Hundred Rand (R 4700) to Mrs Kramer and an amount of Seven Thousand, Two Hundred and Fifty-Four Rands & Ninety-Six cents (R 7 254,96) within thirty (30) days of this award.
Yolisa Ndzuta
Panellist: ELRC