IN THE ELRC ARBITRATION
BETWEEN:
SAOU obo Anna-Marie van der Berg and 1 other “the Applicant”
and
DEPARTMENT OF EDUCATION – Eastern Cape “the Respondent”
DEFAULT AWARD
Case Number: ELRC720-20/21EC
Arbitration date: 23 April 2021
Date of Award: 13 May 2021
Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. On 23 April 2021 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a) of the Labour Relations Act, 66 of 1995 as Amended “The Act”.
2. The applicants are Anna-Marie van der Berg and Stephan Vorster, they were represented by Ms Venita van Wyk, the Assistant Provincial Secretary from SAOU. Anna-Marie van der Berg did not attend the proceedings on the basis that her matter was resolved by the respondent. She is therefore no longer part of these proceedings. The respondent is The Department of Education: Northern Cape, and did not attend the proceedings.
3. I verified with the applicants that the details and address of the respondent were correctly recorded on the notice of set down. I perused the file and established that the respondent was notified by email sent on 23 March 2021. I am therefore satisfied that the Respondent was duly notified of the hearing and, in terms of section 138 (5) (b) (i) of the “LRA”, I continued in default.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the conduct of the respondent not to pay the applicant travelling costs constituted unfair labour practice. If so, make an appropriate order.
BACKGROUND DETAILS
5. The applicant was appointed by the respondent in 2018 as Mathematics Literacy Marker and he is currently an Educator at Lady Grey Academy.
6. He was appointed to mark Maths Literacy Paper II for Eastern Cape matric learners. He was based at Graff-Reinet.
7. Subsequently, he was not paid for the work done. He is seeking the outstanding monies to be paid.
THE EVIDENCE OF THE APPLICANT
8. The applicant testified that he studied BSC degree with the University of Free State and the subjects included were Mathematics I and II, but he did not complete the degree. He is currently studying B. Ed degree with University of Northwest and he is on his third year of studies.
9. He testified that he was called to mark Maths Literacy Paper II for eastern Cape final exam matric learners, he was at Graff-Reinet.
10. He testified that in terms of a letter of appointment dated 26 November 2020, he was appointed to mark Maths Literacy Paper II. He was required to report at the Marking Centre on 01 December 2020 and it was for a period of two weeks. He testified that the respondent was going to pay travelling costs, the respondent owes the applicant R4 941, 72 for travelling costs which has not been paid.
ANALYSIS
11. This matter concerns an alleged unfair labour practice relating to benefits in terms of section 186(2)(a) of the “LRA”. For the purpose of this award, the onus to prove the existence of an alleged unfair conduct by the respondent rests on the applicant. The applicant had no witnesses and submitted bundle of documents.
DEFINITION OF BENEFITS
12. The Labour Appeal Court in Apollo Tyres SA (PTY) LTD v CCMA and Others (2013) in paragraph 21 defines the term “benefits” as follows: “Advantage or an allowance to which a person is entitled to under insurance or social security.” The LAC added that a benefit is something extra, apart from remuneration; often it is term and condition of an employment contract and often not. The LAC went on to say that the benefit must have some monetary value for the recipient and be a cost to the employer. In other words, it is something which arises out of contract of employment. Also, the LAC held that the better approach would be to interpret the term “benefit” to include a right or entitlement to which the employee is entitled to (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. “Benefit” in section 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.
13. In this matter, it is the applicant’s version that he travelled to Graff-Reinet to mark the matric examinations for learners who wrote in 2020. The respondent and the applicant had entered into agreement that it would pay the travelling costs of the applicant, which it failed to do.
14. It terms of the applicant’s version, he incurred the traveling costs in the amount of R4 94172.
15. Having regard to the above, I am satisfied that the applicant has discharged the onus to establish that the conduct by the respondent not to pay his travelling costs constituted unfair labour practice.
16. Turning to the appropriate remedy, having concluded that the respondent’s failure to pay the applicant his travelling costs constituted unfair conduct and such decision was irrational and unjustified, I am of the view that the applicant’s wish that travelling costs be paid should be granted. In calculating the correct or appropriate amount, I have considered the amount paid to the applicant before the decision
17. In the premises I find the following award competent.
AWARD
18. I find that the applicant, Stephan Vorster, has established the existence of unfair labour practice.
19. As a result of the above, I order the respondent, Department of Education: Eastern Cape, to pay the applicant, Stephan Vorster, a sum of R4 941 ,72 (four thousand nine hundred and forty-one Rands seventy-two cents) in lieu of the travelling costs.
20. The aforesaid amount is payable to the applicant by not later than 30 May 2021.
P. Maitsha
ELRC Panelist