In the matter between: –

Lebelo M.E Applicant

And

Limpopo Department of Education First Respondent

DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held in Polokwane on the 30 August 2024. The Applicant was represented by Mr. Hloaela P.M from Mahapa and Montani Attorneys, whereas the respondent was represented by Mr. Masindi M.K, employed by respondent as the Labour Relations Practitioner.
2. Both parties submitted bundles of documents which were admitted as evidence and marked as “R1” and “A1” for the Respondent and the Applicant respectively. Bundle “R1” contained some 88 pages, while bundle “A1” contained 19 pages.
3. The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments by 03 September 2024 Both parties have obliged and submitted their closing arguments which have been considered in this award.

THE ISSUE IN DISPUTE
4. I must determine whether the Respondent failed to pay the Applicant salary for services rendered.

BACKGROUND TO THE DISPUTE
5. The Applicant was appointed as a CS1 teacher for the period in dispute at Sekhung Primary School, in Tolwe in the Baltimore circuit of the Respondent’s Waterberg district, Limpopo Province.
6. At the time of the hearing, there was a pending hearing in the Labour Court between the parties, wherein the Applicant was challenging an alleged unfair dismissal from his employment.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
7. Mr. Lebelo MJ testified under oath, and his evidence can be summarized briefly as follows. That the Respondent had failed to pay his salary for three months, being June 2022, May and June 2023.
8. That he was absent on the 09 to 16 January 2022, for which he was not paid his full salary in June 2022, and further that he was absent from work on the 09 to 16 January 2023 and from the 20 to 27 January 2023, and lastly, that he was absent from work on the 09 to 24 March 2023.
9. Mr. Lebelo further testified that he was sick and had notified the Respondent of same, and on certain occasions, he was present at work but had forgotten to sign the attendance register for which he was marked absent.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
10. The Respondent’s first and only witness, Ms. Matlopela S.E, testified under oath that she was employed as a Principal at the relevant time in dispute, and was responsible for managing attendance of teachers under her principalship through the signing of attendance registers as well as leave management.
11. She further testified that the Applicant was not attending work, and had not applied nor sought leave for his absence for all the material periods in dispute. That the Applicant would disappear for days on end, and occasionally he would fill leave forms on his return for which she then sent same to the department for further processing. That the Department’s Human resources had on occasions rejected the leave forms that were not accompanied by necessary supporting documents, resulting in the department applying the no work no pay policy.

ANALYSIS OF EVIDENCE AND ARGUMENT
12. Prior to the hearing, the Respondent’s representative, Mr. Masindi, raised what he termed a point in limine, arguing that the council lacked jurisdiction to arbitrate the matter. Mr. Masindi had previously raised the same point in limine before my colleague, Commissioner Mateta under the same case number for which a ruling was issued on the 31 July 2024. In his ruling, Commissioner Mateta found that the council had jurisdiction to hear the matter. Consequently, I do not have to second guess the ruling by my colleague, nor to act as appeal body. The point in limine is therefore misplaced, and falls to be dismissed.

13. In this case the facts are largely common. The Applicant testified that he had not worked for the period in dispute, and claimed unpaid salaries. The question for determination, in my view, is whether or not he Applicant was paid his salary. For this contention, the Applicant submitted into evidence his salary advices for the period in question. What is common and undisputed, is that the Applicant was actually paid salaries for all the period in dispute, albeit only for days worked. Put differently, the Department paid the Applicant and then recovered monies for what it termed “Leave without permission recovery”.

14. The Respondent’s representative, Mr. Masindi, submitted that the department implemented the “no work no pay” policy, resulting in the Applicant’s only being paid for the days worked.

15. On the contrary, the Applicant contended that the Respondent was not entitled to deduct any salaries safe when the exceptions under section 34 of the Basic Conditions of Employment Act 75 of 1997 existed. Section 34(1) provides that an “employer may not make any deduction from an employee’s remuneration unless (a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement, (b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award”.

16. In my view the proposition by the Applicant is misplaced. The correct determination of this dispute ought to be underpinned by fairness to both parties. It is trite law in Sidumo v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held that the test for fairness is reasonableness. An arbitrator must determine the fairness or otherwise of a decision maker. In this case, the Respondent decided to pay the Applicant only the portion of salary for days worked. It is not in dispute that the Applicant was absent for the period within which he claims non-payment of salary.

17. It is also not in dispute that the Applicant did no render any services for the period in dispute. In my view, it is immaterial what the reasons for the absence were. The determining factor is that the remedy for non-payment of salary is available to Applicants who had rendered their services, and not remunerated for same. Fairness as enunciated in Sidumo, would preclude that Applicant from being remunerated for services not rendered.

18. Further, the Applicant insist on being paid salary under the circumstances wherein he conceded that he was not rendering any services without any permission, nor proving reasonable explanation for his whereabouts. For instance, the Applicant testified that he was absent for the period between the 09 and 16 January 2022 due to “family responsibility leave” and attached a receipt from the hardware store, because he had bought building materials as he was fixing his family home. The Applicant had absented himself without a reason only for him to return and later claim non-payment of salary.

19. Similarly, the Applicant claimed he was at work but forgot to fill in the register. The Respondent’s witness testified that the Applicant was not present, and the evidence in the form of the attendance registers corroborated the Respondent’s witness. In another period of the Applicant’s absence, he claimed to have been medically indisposed but provided no shred evidence of same. In my view the Applicant’s claim has to fail.

20. In the circumstances, in my view, the Respondent was entitled to apply no work no pay policy.

21. I therefore find that the Respondent did not fail to pay the Applicant salary for service rendered, nor committed any unfair labour practice towards the Applicant.

AWARD

22. The Applicant’s referral is hereby dismissed.

Thapelo Mathekga
(ELRC PANELIST)