Panelists: Malusi Mbuli
Date of Award: 28-03-2024

In the ARBITRATION between

SAOU, NAPTOSA & SADTU obo ARENDSE BOTHA & 14 OTHERS

(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (as amended) (LRA). It was set down for an arbitration hearing virtually at 09:00 on the 11th of March 2024.

2. The applicant, SAOU, NAPTOSA & SADTU obo Arendse Botha & 14 others attended the hearing remotely and were represented by Mrs. Venita Van Wyk and official of the applicant’s trade union SAOU, Mr. Adams an official from NAPTOSA & Mr. Siyabonga Gashi an official from SADTU.

3. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. Patrick Nkomana an official of the respondent.

4. The matter proceeded on the 11th of March 2024, and was finalized on the same day with the parties agreeing that the applicants are owed by the Department and in the process of being paid.

5. The parties further committed to jointly submit spread sheet and arguments not later than the 18th of March 2024 and the respondent submitted the said information.

ISSUE TO BE DECIDED

6. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicants 1.5 Integrated Quality Management System benefits for school based educators (leave gratuity) and if so, I must determine the appropriate remedy.

EVIDENCE

7. The facts in this dispute were common cause and were confirmed by the parties on record. The arbitration hearing was digitally recorded, and the record was provided and forms part of this hearing.

COMMON CAUSE FACTS

8. That the Department of Education owes the applicants 1.5 Integrated Quality Management System gratuity leave benefits for school based educators.

ANALYSIS OF EVIDENCE AND ARGUMENT

9. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 186 (2) provides that:

– no employee must be subjected to an unfair labour practice. The applicant feel that the employer has committed an unfair labour practice by failing to pay the applicants 1.5 Integrated Quality Management System gratuity leave benefits for school based educators.

10. As indicated above in the topic dealing with common cause facts the parties are not in dispute on whether the respondent owes the cited applicants the said amounts. The only issue that remains to be decided is when such 1.5 Integrated Quality Management System benefits for school based educators should be paid to the applicants.

11. In terms of section 138 (9) of the LRA a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the LRA. It is clear from the submissions of the parties that have been recorded at the arbitration hearing that the Integrated Quality Management System benefit claimed by the applicants related to leave gratuities is due and payable to them.

12. The respondent has committed an unfair labour practice by failing to pay the applicants their leave gratuity benefits and as such this constitutes an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

13. The confirmed details for payment are based on the attached spreadsheet and quantified by the Respondent’s persal system.

14. The quantified amounts appear on the said spreadsheet provided by the Respondent which is attached hereto and forms part of this award.

15. In the circumstances I make the following award.

AWARD

16. The respondent is ordered to pay the applicants in accordance with the spread sheet attached hereto, which was generated and agreed upon between the parties above and quantified on the respondent’s persal system.

17. The amounts referred to in paragraph 14 above will be paid to the applicants by no later than the 30th of April 2024.

Signature:

Commissioner: Malusi Mbuli