19 July 2022 – ELRC531-21/22 LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD IN POLOKWANE

CASE NO.: ELRC531-21/22 LP
In the matter between:-
SADTU obo SEGWAELA LA
AND 11 OTHERS APPLICANTS

and
DEPARTMENT OF EDUCATION- LP RESPONDENT

ARBITRATOR: M.P.SHAI
HEARD: 17June and 01 July 2022
DATE OF AWARD: 13 JULY 2022
SUMMARY: Section 186 (2) (a) unfair Labour Practice

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the 17th June 2022 and 1st July 2022, at Department of Education office, Corner Hospital and Biccard Street, and Sehlako Technical High School respectively.
2. Both parties were present. The employer was represented by Mr Mogoba Matlou, its Employee Industrial Specialist, whereas the employee was represented by Mr M.S Tjia, a SADTU official.
3. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
4. I am called upon to determine whether the applicants are entitled to retrospective payment of remoteness allowance from the inception of the scheme or not. If I find that it should be paid retrospectively, I will order the employer to pay to the employees same retrospectively.
BACKGROUND TO THE ISSUE
5. The applicants are employed by the employer as educators at Ratau Primary School in the Sekhukhune area.
6. The applicants and the employer agreed that the applicants qualify for the said remote incentive scheme and were paid accordingly from the date of the dispute being 1st October 2021 to 31st December 2021.
7. The parties agreed that what needs to be determined is whether same must be paid from the inception of the scheme or not.
8. The applicants argued that they should be paid from the inception of the scheme rather than from the date of the dispute according to the referral form. On the other hand, the employer is of the view that the applicants must be paid from the latter date, which the employer has done.
SURVEY OF EVIDENCE FOR THE EMPLOYEES
MR MANDLA SAMUEL TJIA TESTIFIED UNDER OATH AS FOLLOWS:
9. He is a SADTU union official. The applicants applied for remote incentive scheme after realising their omission by the employer from the scheme. That is so since 2010. The employer responded in 2014 as per page 33 of the bundle of documents dated 17 December 2014 which reads as follows:
“Application for remote allowance
Your letter dated 20th November has reference.
Please note that posts at your school have not been identified to be paid the remote allowance.
The matter is regarded as finalised”.
10. The two parties agreed that the applicants are qualified to receive the said remoteness allowance and have so paid for the period stated at paragraph 6 above.
11. This means that the employer omitted or neglected to do its duty to the disadvantage of the applicants.
12. He prayed for the applicants to be paid as retrospectively.
UNDER CROSS EXAMINATION
13. He admitted that the applicants were aware since 2014 that the employer would not pay them remoteness allowance.
14. The remoteness allowance must be paid retrospectively since they qualified from day one.
15. He admitted that the school was not identified by the Head of the Department: Limpopo at the time and that the school was assessed only in 2022 following a referral to Council.
16. Although it is nowhere in the gazette which indicated that the applicants may be paid retrospectively, they qualified from day one.
SURVEY OF EVIDENCE FOR THE EMPLOYER
MR MOGOBA MATLOU TESTIFIED FOR THE EMPLOYER AS FOLLOWS
17. He is employed by the employer as employee Relations Specialist.
18. The applicants stated in their referral that the dispute arose on the 1st October 2020. After that parties conducted a loco inspection on the 4th March 2022. It was confirmed that the applicants indeed qualified.
19. Following the above confirmation, the employer paid the applicants from the 1st October 2021 to 30th December 2021, being the date on which the dispute arose to the end of the scheme. An amount of seven thousand and ninety-five cents (R 7000.95) was paid to each applicant.
20. The applicants were aware as at 2014 that the employer was not prepared to pay them as the Head of Department had not identified the school as one qualifying.
21. It is the prerogative of the employer to implement the gazette (scheme). The applicants qualified after verification.
22. The gazette does not make provision for retrospective payment.
23. He admitted that the employer did not assess the Ratau Primary School as it was not identified for remoteness allowance.

ANALYSIS OF EVIDENCE AND ARGUMENT
24. The parties herein agree that the applicants qualify for remoteness allowance in terms of Government Gazette No: 30678 of 18th January 2008.
25. The parties further agree that the applicants were paid the remoteness allowance in line with the above gazette from the 1st October 2021 to the 31st December 2021 when the scheme was halted.
26. The parties disagree as from which date the remoteness allowance should be paid. The employer argued that the date on which the dispute arose is the date on which they should be paid and not from the inception of the scheme.
27. I determine that condonation is not necessary in this matter since the unfair labour practice is a continuing one.
28. Government gazette no 30678 of 18 January 2008 provides as follows:
“The Head of Department must, by 30th September of the year before that of the implementation, provide to the Director -General an indication of the-
a. The types and number of posts that would be eligible for the incentive in terms of paragraph 8.1 and 8.2;
b. Percentage applicable to each type of incentive;
c. Levels or “steps” added to the percentage applicable to each type of incentive post, and the criteria for qualifying for the various levels or “steps”;
d. The number of incentive posts that were created and to be paid out in kind and a description thereof, for example provision of free housing, provision of subsidized vehicle overseas study visits or study visits”.
29. The same gazette provides at paragraph 11 as follows:
“The Head of the Department must by 30th June each year provide to the Director-General a report of the incentive posts filled (by type and level and the amount spent) in the previous financial year.
30. It is clear from the above that the Head of the Department omitted to include the above school. It is not clear why that is the case. What we have is a letter declining the inclusion dated the 17th December 2014 which was a response to a letter the principal of Ratau School had written notifying the department of the qualification of the school for remoteness allowance. The evidence shows that this negligence by the department severely prejudiced the applicants.
31. I regard the remoteness allowance as an entitlement to all those who qualifies. The gazette clearly showed that it is the duty of the HOD to identify all those who qualify and submit them to the Director – General Department of Education. The department has failed in this regard.
32. The applicants alerted the department of this omission but the latter failed to take steps to rectify the error.
33. Should the applicants be punished for the error? I do not think so. That is especially where the department was alerted of the error but failed to take steps to rectify the error.
34. Section 195 of the Labour Relations Act 66 of 1995 as amended provides as follows:
“Compensation is in addition to any other amount
An order or award of compensation made in terms of this chapter is in addition to, and not a substitute for, any other amount to which the employee is entitled in terms of any law, collective agreement, or contract of employment”.
35. I conclude that the applicants are entitled to retrospective payment from the date the Department was notified of the omission, being 20 November 2014. In determining the amount payable to applicants, I will exclude the period between 1st October to December 2021 as the Respondent has paid the said allowance to applicants as per paragraph 25 above.
AWARD
36. I find that the employer has committed unfair Labour practice in respect of the applicants.
37. I further find that the applicants are entitled to retrospective payment from the date the Employer was made aware of the omission.
38. I order the Respondent to pay to each Applicant a sum of R 191380 (one hundred and ninety-one thousand rands, three hundred and eighty rands) calculated from 20th November 2014 to 30th September 2021.
39. The above amount must be paid on or before 31 August 2022.