Panelist: Jonathan Gruss
Case No.: ELRC525-21/22EC
Date of Award: 12 May 2022
In the ARBITRATION between:
SAOU obo Marina du Plessis & 2 Others
(Union / Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Mrs Harvey (SAOU)
Respondent’s representative: Mr Louw
Summary: Section 186(2)(a) of the Labour Relations Act, Act 66 of 1995 as amended – unfair labour practice relating to benefits.
Acting allowance as regulated by ELRC Resolutions 8 of 2001 and 8 of 2002 and the Department of Education: Eastern Cape’s acting policy and medical aid subsidy and rural incentive scheme.
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held via the Zoom platform on 25 February 2022 and 25 April 2022. The proceedings were electronically recorded via video. The applicants, Marina du Plessis, Janine du Plessis and Almien Schlechter were represented by Mrs Harvey from SAOU. The respondent, Department of Education: Eastern Cape were represented by Mr Louw, Deputy Director Labour Relations. The parties submitted by agreement written closing arguments on 2 May 2022.
ISSUE TO BE DECIDED
2. I am required to determine whether the respondent committed an unfair labour practice by not paying the applicants allowances. Therefore, I must determine whether Mrs Marina du Plessis is entitled to be paid acting allowance and medical aid subsidies. I must further determine whether Ms Janine du Plessis is entitled to be paid an acting allowance and a rural incentive allowance. I must also determine whether Ms Almin Schlechter is entitled to be paid an acting allowance.
BACKGROUND
3. The following were accepted as common cause facts, namely:
3.1 Mrs Marina du Plessis is employed as a post level 1 educator of a Farm School called Bo Plaas situated between Humansdorp and Kareedouw. She was appointed on 28 February 2018 and became permanent on 1 February 2019. She is claiming an acting allowance for allegedly acting in a Principal post for the periods January to June 2019; January to December 2020 and January to December 2020. In 2019, her monthly basic salary was R3539.25 and in 2020, her basic monthly salary was R3683.25 and in 2021, her basic monthly salary was R3497.50. There was no appointment letter appointing her as acting principal except for the periods 1 July 2019 to 31 December 2019, where she was paid an acting allowance. The schools SGB recommended in writing to the respondent that Ms M du Plessis act in the position of principal. She is also claiming an amount R16985.00 which is the respondent’s portion of her medical aid subsidy.
3.2 Ms Janine du Plessis is claiming an acting allowance for the periods July to September 2021 and a rural incentive allowance for the periods March 2021 to September 2021.
3.3 Ms Almien Schlechter is claiming an acting allowance for the periods February 2018 to December 2020.
SURVEY OF EVIDENCE
4. Mrs Marina du Plessis testified under oath to the following effect.
4.1 As it relates to medical aid subsidy, the total amount owing is R16985.00, this was for period of 7 months in that she paid the subsidy on behalf of the respondent. The Government Employee Medical Aid Scheme (GEMS) has provided her with a print out as confirmation that she paid the medical aid subsidy on behalf of the respondent.
4.2 She believes that she is entitled to be paid an acting allowance for the period as claimed, she submitted the necessary application form with the SGB’s recommendation to the respondent and they did not respond to her. She considers herself to have acted in the principal position in that when the respondent communicates with principals, she’s included as part of the principal’s WhatsApp group. According to the post provision of the school there is a vacant post and after she applied, the respondent decided not to fill the post.
4.3 Under cross-examination, Mrs M du Plessis confirmed that in order to receive an acting allowance you have to obtain prior approval unfortunately she never received prior approval before acting. She applied to be a member of GEMS in February 2018 and as a member of GEMS she communicated her membership of the scheme with the respondent. She is sure after her re-employment she informed the HR thereby requested a subsidy.
4.4 On a question asked by myself, Mrs M du Plessis explained that she is appointed in terms of post-provisioning on the payroll of Siraneys Primary School since July 2019 whereas she is physically teaching at Boplaas. She has on a regular basis brought this irregularity to the attention of the respondent to no avail.
5. Ms Janine du Plessis testified under oath to the following effect.
5.1 She is claiming a rural incentive allowance for the periods 1 April 2021 to 31 December 2021. The last time that she received her rural incentive allowance was on 18 September 2020. The Education Labour Relations Council task team approved the school as a school that qualifies for incentive rural allowance. She qualifies for the allowance in that she works at the farm school and there is approval that she would be paid in that she was initially paid.
5.2 Under cross-examination, Ms Janine du Plessis explained that as it relates to the acting allowances she received this acting allowances for the periods 1 January 2019 to 31 March 2019 and also for the periods in 1 April 2019 to 30 June 2020. The periods that are outstanding is from 1 July 2020 to 1 December 2021. She applied for the acting allowance and the schools SGB recommended that she be appointed to act.
5.3 As relates to the rural allowance, the school where she is employed Suuranys Primary School and according to the PPN there is 1 principal’s post at the school. She had been receiving the rural incentive allowance since 2012 and it was stopped for no apparent reason in March 2021. She does confirm that she did not receive approval letter appointing her to act and therefore her appointment was never approved. However, the Circuit Manager (EDO) from Circuit Management Centre requested her to do that work and he told them that they must go to the union in order to secure the allowance.
5.4 Under re-examination witness confirmed that the allowance she is claiming is a no principal cash allowance in that she is employed at a one-man school in that she would receive payment of this NP allowance for the periods November 2021 to December 2021 and from January 2021 and she is still continuing receiving the allowance. The rural incentive allowance she is claiming is for the periods November 2021 to 2 January 2022.
6. Mrs Almien Schelechter testified under oath to the following effect.
6.1 The respondent issued her with an appointment letter appointing her as an acting P2 principal at Nooitgedacht Primary School for the periods 1 February 2018 to 31 March 2018 and from 1 April 2018 to 30 June 2018. She was not paid for this period. She performed the duties as a P2 principal and was included in CMC WhatsApp group for principles. According to the PPN of the school, the school qualifies for a principal post and a post level 1 educator post.
6.2 She left Nooitgedacht in September 2021 and started teaching at Paul Sauer High school.
6.3 Under cross-examination, Ms Schelechter confirmed that for the periods 1 July 2018 to September 2021 she did not receive an appointment letter approving her appointment. Mr Louw indicated to Ms Schelechter for the periods where she was appointed she will be paid.
7. The respondent elected not to lead any evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. The dispute was referred in terms of Section 186(2)(a) of the Labour Relations Act (the “LRA”):
“Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee.”
9. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 1120 (LAC), the LAC agreed with the finding in Protekon that Section 186(2) superimposes a duty of fairness irrespective of whether that duty arises expressly or implicitly in the contractual provisions that establish the benefit. The court found the better approach to be to interpret the term ‘benefit’ to include a right or entitlement to which an employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to the employee in terms of a policy or practice subject to the employer’s discretion. This also put paid to the anomaly created by the decision in HOSPERSA, in terms of which an employee who wanted to use the unfair labour practice jurisdiction in s 186(2) relating to promotion or training did not have to show a right to training or promotion, but had to show a right sourced in contract or statute when using the same remedy in relation to the provision of benefits.
10. The dispute referred is unfair labour practice dispute and not an enforcement dispute. Therefore the yardstick in resolving such disputes is fairness.
11. According to clause 64 (1) & (2) of the terms and conditions of employment of educators provides that the monthly contribution by the employer in respect of subscription payable to the medical scheme on a monthly basis calculated in accordance with the basis determined by the Minister and shall be paid to the different medical aid schemes on which an educators are members. In order to qualify for an employer contribution, an educator shall provide the employee with written proof of membership of medical scheme of which you she is a member, as well as of the monthly subscription applicable to him or her.
12. In terms of Chapter C2 of the Personnel Administrative Measures (PAM) provision is made for a non-pensionable allowance, which equated 6% of the educator’s basic salary is payable to an educator at a post level 1 who holds the post of principal at a one-educator school.
13. Chapters 4.1 of Personnel Administrative Measures (PAM) provides that an educator may only be appointed to act in a post that is one post level higher than his or her current position. Within fourteen days of notification by the employer, an SGB will be requested to recommend to the employer the educator to be appointed to act in a higher post.
14. Chapter 4.1.6 of PAM further provides that the acting allowance that will apply is the difference between the acting educator’s current basic salary (without benefits) and the commencing notch (without benefits) that applies to the position in which the educator is acting, provided that the allowance equates at least 6%. Where the acting educator’s current basic salary (without benefits) equals or exceeds the commencement notch of the higher post (without benefits) that applies to the position in which the person is acting, the acting allowance will be at least 6%.
15. Chapter 4.3.1 and 4.3.2 of PAM provides that an acting allowance will only be paid to an educator who acts for a period longer than twelve (12) weeks, but limited to the maximum of twelve months. The acting allowance will be paid only to an educator who acts in such a post where the permanent incumbent is absent due to the following: maternity leave, sick leave, study leave, suspension and secondment. Compensation will be backdated to the date on which the educator commenced acting provided that the acting is 12 consecutive weeks or longer.
16. I informed the respondent’s representative, Mr Louw that the respondent will have to explain considering the applicants submitted applications for acting allowances that was accompanied by the respective SGB recommendations. The explanation sought is why the respondent elected not to approve and pay the applicants their respective allowances. The only defence or explanation put forward was that the appointment of an irrigated to act in higher posts is subject to the approval been obtained from the relevant delegated authority as per the acting allowance. Therefore it was explained that the applicants did not obtain prior approval from the district director to act. It was argued by the respondent that under no circumstances should an educator assumed duties in an acting capacity in a vacant post before formal approval is obtained from the delegated authority. I therefore accept should an educator not obtain prior approval to act in a higher position, that educator does so at their own peril.
17. As it relates to Marina du Plessis, considering that the respondent although advertising the post of principal elected not to fill the post makes me question whether there was a vacant funded post of principal. As relates to the fact that in terms of the post provisioning, Ms M du Plessis falls under the payroll of Siraneys Primary School although she is physically teaching at Boplaas. This supports a belief that the post was not funded. As it relates to her claim for the respondent to reimburse her for their failure of paying their portion of the medical aid subsidy over to GEMS and considering she paid the subsidy on the respondent’s behalf I conclude the respondent is liable therefore.
18. As it relates to Janine du Plessis, I’m satisfied that she is entitled to be paid a rural allowance. The respondent had done so over a period of time and for no apparent reason ceased to continue paying the applicant. The necessary documentation that form part of the applicant’s bundle confirms this entitlement. As it relates to the acting allowance, this is not a true acting allowance but a non-pensionable allowance which equated 6% of the educator’s basic salary that is paid to educator at post level one who holds the post of principal at a non-educator school. It appears that this allowance was paid to over the period November 2021 to December 2021 and from January 2022 and is continuing. The claim is for the period 1 April 2021 to 31 December 2021. This outstanding rural allowance is for period of 9 months that amounts to R21 002.85.
19. As it relates to Almien Schelechter, she is claiming an acting allowance for the period 1 February 2018 to 30 June 2018. This period was approved, unfortunately respondent did not honour their approval by paying her. As it relates to the period 1 July 2018 to September 2021 the applicant was unable to produce an approval letter appointing her as an acting principal. She was unable to confirm that she was given an instruction by the district director to act in that position and therefore she started acting without the necessary approval. During the periods 1 February 2018 to 31 March 2018 she as confirmed by her appointment letter was supposed to receive an allowance of R1583.00 per month for 2 months and for the periods 1 April 2018 to 31 June 2018 she was supposed to receive an allowance of R1686.00 per month for 3 months.
20. I accordingly make the following award.
AWARD
21. The respondent, Department of Education: Eastern Cape perpetrated an unfair labour practice relating to benefits as it relates to:
21.1 Mrs Marina du Plessis when they failed to pay and reimburse her for their portion of the GEMS subsidy.
21.2 As it relates to Ms Janine du Plessis, the respondent perpetrated an unfair labour practice relating to benefits when they failed to pay her a non-pensionable allowance that is payable to an educator at a post level 1 who holding the post of principal at one educator school. They further also failed to pay her a rural allowance.
21.3 As it relates to Mrs Almien Schelechter the respondent perpetrated an unfair labour practice relating to benefits when they failed to pay her an acting allowance for acting in the principal post for the periods 1 February 2018 to 30 June 2018.
22. The respondent, Department of Education: Eastern Cape is ordered to pay the applicant, Mrs Marina du Plessis an amount of R16 985.00 that equates to the respondent GEMS subsidy that the applicant paid on behalf of the respondent. This amount is confirmed by the GEMS print out as contained in her bundle.
23. The respondent, Department of Education: Eastern Cape is ordered to pay the applicant, Ms Janine du Plessis a non-pensionable allowance that is payable to an educator at a post level 1 who holding the post of principal at one educator school amounting to R25 209.87. This amount is confirmed by the applicant calculations as found in her bundle.
24. The respondent, Department of Education: Eastern Cape is further ordered to pay the applicant, Ms Janine du Plessis her outstanding rural allowance in the amount of R21 002.85. This amount is confirmed by the applicant calculations as found in her bundle.
25. The respondent, Department of Education: Eastern Cape is ordered to pay Mrs Almien Schelechter her outstanding acting allowance amounting to R6538.00. This amount is confirmed by the respondent’s appointment letter as contained in her bundle.
26. The amounts as referred to in paragraphs 22 -25 must be paid by no later than 30 June 2022.
Name: Jonathan Gruss
ELRC Arbitrator