IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC1147-24/25 NC

In the matter between:

SAOU obo ADAM BOTHA Applicant

and

NORTHERN CAPE EDUCATION DEPARTMENT Respondent

ARBITRATION AWARD

PANELLIST: YOLISA NDZUTA

HEARD: 10 MARCH 2025

DATE OF AWARD: 17MARCH 2024

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to the provision of an acting allowance

SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to provision of an acting allowance

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration heard before me on the 10th of March 2025. During these proceedings, the applicant, Mr Adam Botha was represented by Mrs Lize-Mari Mazzoncini of the SAOU while the Respondent, the Education Department of Northern Cape was represented by Mr Ferdinan Bitterbosch.
2. The parties confirmed receipt of the notice of set down and upon the presentation of testimony all pre-liminary issues were resolved.

THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed by the Respondent relating to the failure to pay the Applicant an acting allowance in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act).

THE BACKGROUND TO THE DISPUTE

4. In these proceedings The Applicant referred an unfair labour practice relating to the Respondent’s failure to remunerate him an acting allowance for a period he had acted in a post.
5. The Applicant claimed that he had acted as Principal of the Victoria West High School from 13 April 2024 until 31 December 2024.
6. The Respondent conceded to the above and supported that the Applicant was rightly entitled to the payment of an acting allowance.

SURVEY OF EVIDENCE AND ARGUMENT

7. Given that there were no disputes of fact or law in terms of the Applicant’s entitlement to the acting allowance, the parties proceeded to make their stated case and made oral submissions instead of oral evidence.

Applicant’s Case

8. The Applicant submitted that:

8.1 He is employed as the Deputy Principal of Victoria West High School a post-level 3 vacancy.

8.2 The Applicant was appointed to act as the Principal of Victoria West High School from 13 April 2024 until 31 December 2024, a post-level 4 position.

8.3 Given the appointment, the Applicant was entitled to receive an acting allowance for the abovementioned period.

8.4 The acting allowance due to the applicant amounted to R14 747.40 less deductions.

The Respondent’s Case:

9. The Respondent submitted as follows:

9.1 The Applicant is entitled to the amount claimed however same must be subjected to deductions.
9.2 The Respondent requires the arbitration award to direct when the amount due to the applicant must be paid to the Applicant.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

20 The Applicant referred a dispute of an unfair labour practice in terms of section 186(2)(a) of the Act and bears the onus to prove the entitlement on a balance of probabilities. Section 186(2 (a) of the Act provides that:

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
unfair conduct by the employer relating to the 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” .

21 The applicant’s dispute is centered around a benefit which it claimed emanates from the ELRC Collective Agreement 8 of 2002.

22 In Apollo Tyres South Africa (Pty) Ltd v CCMA 2013 5 BLLR 434 (LAC) the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including 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.

23 The respondent did not dispute the applicant’s claim and merely sought that it be afforded reasonable time to settle same claim.
24 It is therefore evident that no dispute existed between the parties in relation to the Applicant’s entitlement of the acting allowance benefit and the Applicant has discharged his onus of proof on a balance of probabilities regarding this entitlement. I shall therefore make the following award:

AWARD

25 The Applicant has proven that an unfair labour practice was committed against him by the Respondent.

26 The Respondent is directed to pay an amount of Fourteen Thousand, Seven Hundred and Forty-Seven rands and forty cents (R14 747.40 ) less statutory deductions by no later than the 30th of April 2025.

Yolisa Ndzuta
Panellist: ELRC