IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD VIRTUALLY VIA ZOOM
Case No ELRC867-21/22EC
In the matter between
NAPTOSA obo PETERSEN, JACQUELINE Applicant
and
THE DEPARTMENT OF EDUCATION: EASTERN CAPE First Respondent
Arbitrator: Pumeza Ndabambi
Date of award: 11 May 2022
SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) – unfair conduct relating to the provision of benefits – stoppage of payment of housing allowance
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This matter came before the Education Labour Relations Council (ELRC)for arbitration, in terms of section 191(5)(a)(iv) of the Labour Relations Act No. 66 of 1995, as amended (the LRA). The Applicant, Ms Jacqueline Petersen, was represented by Ms Maxine Mizen, an official of NAPTOSA and the Respondent, Department of Education: Eastern Cape, was represented by Mr Euan Hector, the Labour Relations Officer.
2. The proceedings were held virtually through Zoom and were recorded electronically.
ISSUE TO BE DECIDED
3. I am required to determine whether the conduct of the Respondent in stopping payment of the Applicant’s housing allowance amounts to an unfair labour practice, and if so, determine an appropriate remedy.
BACKGROUND TO THE DISPUTE
4. The Applicant holds the position of an Educator and her housing allowance was stopped in September 2016 and reinstated in April 2021. The Applicant seeks back pay for the period the payments were stopped.
EVIDENCE AND ARGUMENT
5. It is the parties stated case that the Applicant’s housing allowance was stopped in September 2016 for reasons unknown to both parties. The detail of the payments due to the Applicant is as follows:
Year Period Applicable rate of pay Total amount due
2016/2017 9 months
1 Sep 2016 to 30 June 2018 R1200. 00
(R1 200. 00 X 9 months) R10 800. 00
2017/2018 12 months
1 July 2018 to 30 June 2019 R1 276. 00
(R1276. 00 X 9 months) R15 312. 00
2018/2019 12 months
1 July 2019 to 30 June 2020 R1 336. 22
(R1 336. 22 X 9 months) R16 034. 64
2019/2020 12 months
1 July 2019 to 30 June 2020 R1 398.35
(R1 298. 35 X 9 months) R16 730. 20
2020/2021 9 months
1 July 2020 – 30 March 2021 R1 456. 94
(R1 456. 94 X 9 months) R13 112. 46
TOTAL AMOUNT R71 989. 30
6. The Respondent also agreed that the Applicant is indeed owed the amount in paragraph 5 above and that they agree that it is due to the Applicant and seek a quantification of the amount. The Respondent is therefore not opposed to the proposed remedy and seeks an arbitration award to that effect.
ANALYSIS OF SUBMISSIONS
7. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices, giving effect to section 23 of the Constitution of the Republic of South Africa. This dispute is referred as an unfair labour practice dispute in which the onus rests on the employee to prove the conduct complained of.
8. In this matter it is common cause that the Applicant’s housing allowance was stopped from September 2016 to 30 March 2020. The evidence presented is not contested by the Respondent, as they indicated they seek an award giving effect to the issues agreed upon by the parties as common cause. The parties further agreed that the amount is subject to tax and other lawful deductions.
9. I must therefore find that the Applicant discharged the onus as required in showing that housing allowance is a benefit that applies to her and that the Respondent committed an unfair labour practice in stopping payments towards the Applicant’s housing allowance.
10. In the circumstances, I must grant the remedy as prayed for by the Applicant and agreed upon by the Respondent as outlined in paragraphs 5 and 6 above.
11. In the circumstances, the following award is issued:
AWARD
12. The conduct of the Respondent, Department of Education: Eastern Cape, in stopping the Applicant’s (Jacqueline Petersen) payments towards a housing allowance, constitutes an unfair labour practice in relation to provision of benefits.
13. The Respondent, Department of Education: Eastern Cape, is ordered to pay the amount of R71 989. 30, being the payments towards the housing allowance of the Applicant, Jacqueline Petersen, that should have been paid for the period 1 September 2016 to 30 March 2021, subject to legal deductions.
14. The Respondent, Department of Education: Eastern Cape, is ordered to pay the amount in paragraph 13 above by no later than 30 June 2022.
PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL