IN THE EDUCATION LABOUR RELATIONS COUNCIL

In the matter between

NAPTOSA obo Tame, Sizwe Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the Applicant: Mr. Anton Adams (NAPTOSA)
For the Respondent: Mr. Bonisile Nkuhlu (CES: Labour Relations)
Arbitrator: Thobela Ncetezo
Heard: 09 July 2024
Delivered: 16 July 2024
SUMMARY: Unfair labour practice – Section 186(2)(a) of the LRA

ARBITRATION AWARD

Details of hearing and representation

1. The dispute was set down for virtual arbitration on 9 July 2024. Mr. Anton Adams who is an official of NAPTOSA represented the applicant, Mr. Bonisile Nkuhlu who is employed by the respondent as Chief Education Specialist: Labour Relations, represented the respondent, Education Department of Eastern Cape.

2. The proceedings which were digitally recorded were conducted in English.

3. Both parties did not submit any bundle of documents and only the applicant testified. The respondent did not introduce any witness,

Issue to be decided

4. I am required to decide whether the Applicant is entitled to a benefit of housing allowance.

Background to the dispute

5. The Applicant submitted that he was employed by the respondent as an educator on 4 April 1992. He is a school principal at Etaleni Primary School. He is claiming an amount of R22 300.00, which was in his savings account from 1 July 2015 to July 2022.

6. The Respondent submitted that the respondent is aware of the applicant is entitled to the benefit and that it is currently being processed.

Survey of evidence and arguments
Applicant’s case

7. The Applicant testified that in 2019 he was dismissed by the respondent for being appointed as a part-time councillor for a pollical party. However, he was reinstated retrospectively but the savings in his housing allowance benefit was not reinstated. The amount that was not paid to him was R22 300.00.

8. Under cross-examination the applicant stated that when he was reinstated with all benefits, but the department told him that they were processing the housing allowance benefit.

9. The respondent waived its right to cross-examine the applicant.

Respondent’s case

10. The respondent’s representative. Mr. Bonisile Nkuhlu, stated he was not going to introduce any witnesses. He admitted that Education Department of Eastern Cape is aware that the amount claimed is due to the applicant and it is committed to pay the applicant as soon as things are ready, and errors are corrected in the system. He stated that they are not querying the housing allowance benefit claimed by the applicant.

Closing arguments

11. The applicant stated that the respondent has acknowledged that the applicant is entitled to a housing allowance benefit and therefore the respondent should be instructed to pay it within sixty days as they are aware of the challenges that may be encountered in the processing of backdated payments.

12. The respondent’s representative did not submit any closing arguments.

Analysis of evidence and arguments

13. The Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.

14. It was common cause that the applicant did not receive the housing allowance benefit when he was reinstated. The respondent confirmed and admitted that the applicant is legally entitled to the benefit and that it is currently being processed.

15. Based on the above reasons, it is my considered view that the Applicant has discharged his onus to prove that the failure of the respondent to pay him the housing allowance benefit constitutes an unfair labour practice in terms of Section 186(2)(a) of the LRA.

16. I accordingly make the following award;

Award

17. The respondent, Education Department of Eastern Cape, is ordered to pay the applicant, Sizwe Tame, an amount of R22 300.00 which is an outstanding housing allowance benefit, by no later than 7 August 2024.

18. The amount due to the applicant in terms of the above paragraph must be paid by no later than 7 August 2024, failing which the sum shall bear interest from the date of this award to the date of payment at the rate of interest applicable from time to time to judgement debts.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education