Panelist: Ntjatja Klaas Aphane
Date of Ruling: 17 July 2024
In the ARBITRATION PROCEEDINGS between:
NAPTOSA obo SUSAN MINNIE VARRIE
(The Applicant)
And
DEPARTMENT OF EDUCATION: GAUTENG PROVINCIAL GOVERNMENT
(The Respondent)
Applicant’s representative: Rozanne Visagie (NAPTOSA Official) obo Susan Minnie Varrie.
Respondent’s representative: Vusi Ndhlovu (Respondent’s Official) Department of Education: Gauteng Province
DETAILS OF THE HEARING AND REPRESENTATION:
1. This is the award in the arbitration proceedings concerning an alleged unfair labour practices in relations to non-payment of salary dispute between Susan Minnie Valerrie, the Applicant, and The Department of Education: Gauteng Province, the Respondent.
2. The dispute was referred to the ELRC in terms of section 186 of the Labour Relations Act 66 of 1995 (the LRA), on 14 February 2024. Though on special feature, it was clear that it was non-payment of salary in terms of the provision of the BCEA.
3. The arbitration was scheduled and held on 15 April 2024 and 03 July 2024, and held under the auspices of the ELRC in terms of section 191(5) (a) (iv) of the LRA at 02 Robin Closer, Infinity Office Park,Meyersdal ,Alberton, Gauteng Department of Education district offices.
4. The award is issued in terms of section 138(7) of the LRA.
5. The Applicant was present and she was represented by an official of NAPTOSA, Rozanne Visagie. The Respondent was present and represented by its employee, Vusi Ndhlovu, with an official of the Respondent, James Makhalimela.
6. The arbitration proceedings were digitally recorded and handwritten notes taken.
7. The prayer sought by the Applicant is the payment of her two months’ salary.
THE ISSUES TO BE DECIDED:
8. I have to determine whether the Applicant is entitled to outstanding statutory payment in terms of the BCEA. Non-payment of her salary.
THE BACKGROUND TO THE DISPUTE:
9. The Applicant was an Educator in the employ of the Respondent and was medically boarded on 30 April 2023. The Respondent erroneously boarded her on 28 February 2023 instead of 30 April 2023.
10. The Applicant exhausted all internal revenues of resolving the dispute with the Respondent, but the Respondent failed to effect payment of the outstanding two months’ salaries of March and April 2023.
11. The dispute was scheduled for arbitration proceedings wherein the Respondent’s representative and the human resources manager were confident that the dispute was near positive resolution and requested two weeks to effect payment.
12. The dispute was rescheduled on 03 July 2024.
13. The Applicants representative submitted a bundle of documents, bundle “A”, consisting of pages 1-25.
SURVEY OF THE EVIDENCE:
14. I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.
THE APPLICANT’S CASE:
15. The Applicant’s trade union representative submitted that the core of the dispute is the non- payment of the Applicant’s salary for the month of March and April 2023.
16. The dispute was thoroughly canvassed with the Respondent’s representative but the Respondent failed to effect the payment.
17. She pleaded for the payment of the outstanding two months’ salary, the amount thereof is R57 928,75.
THE RESPONDENT’S CASE:
18. The Respondent’s representative conceded that the Respondent is indebted to the Applicant for the two months salaries, for March and April 2023, to the amount of R57 928, 75.
19. Some submissions were submitted for approval but administrative glitches failed them.
20. The Respondent acknowledged that the Applicant was not paid for the month of March and April 2023.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
21. In considering the merits of this dispute, I had regard to the provisions of the LRA, the BCEA, and the Constitution of the ELRC, more-so the Dispute Resolution Procedure of the ELRC and case law.
22. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996.This right is well entrenched in section 185 of the LRA which provides the right not to be unfairly dismissed or be subjected to unfair labour practice.
23. There was no dispute that the Applicant was not paid for two months, March and April 2023, and is entitled to her two months salaries.
24. Though the dispute was referred as alleged unfair labour practices in terms of section 186 of the LRA, we are empowered as Commissioners to determine the true nature of the dispute in terms of the LRA. The true nature of the dispute was non-payment of the Applicant’s two months’ salary.
25. In CUSA v Tao Ying Industries and others (2008) 29 ILJ 2461 (CC) at paragraph 66, the Court held that, “A commissioner must, as the LRA requires, “deal with the substantial merits of the dispute”. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, the labels that the parties attach to the dispute cannot change its underlying nature. A Commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union, and the evidence presented during the arbitration process. What must be borne in mind is that there is no provisions for pleadings in the arbitration process which helps to define dispute in civil litigation. Indeed, the material that the Commissioner will have prior to a hearing will consist of a standard form which record the nature of the dispute and desired outcome. The informal nature of the arbitration process permits the commissioner to determine what the real dispute between the parties is, on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in”.
26. In the premises, I find that the Applicant is entitled to her two months salaries. It is unfortunate that the Respondent failed to remedy this administrative error from 2023 to date, blaming persal and BAS systems disconnect, despite that those systems are created and controlled by officials.
AWARD:
In the premises, I make the following award:
27. The Applicant has established that the Respondent did not pay her, her outstanding two months salaries.
28. The Respondent, Department of Education: Gauteng Province, is ordered to pay the Applicant, Susan Minnie Varrie, the amount of R57 928,75 (Fifty seven thousand and nine hundred and twenty eight rand and seventy five cents) being the two months outstanding salaries of the Applicant, March and April 2023.
29. Payment of the amount referred to in paragraph 28 must be effected by paying the said amount into the Applicant’s bank accounts.
30. The Respondent is ordered to pay the Applicant the amount referred to in paragraph 28 within fourteen days of receipts of this arbitration award but no later than the 31 July 2024.
31. As provided for by section 143(2) of the Labour Relations Act 66 of 1996 as amended, any unpaid amount due in terms of this arbitration award will attract interest at the rate prescribed in terms of section 12 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due.
32. Should the Respondent fail to comply with the above directive in the arbitration award, the Applicant is to approach the ELRC for the certification and enforcement of the award of section 143(3) of the LRA
Thus done and signed at the ELRC, Pretoria on 17 July 2024.