20 April 2021 – PSES 214 WC

Case Number: PSES 214 WC
Province: Western Cape
Applicant: PUBLIC SERVANTS ASSOCIATION
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal – Constructive Dismissal
Venue: POLOKWANE
Award Date: 30 May 2001
Arbitrator: NEIL VAN ZYL
EDUCATION LABOUR RELATIONS COUNCIL

CASE NUMBER: PSES 214 WC
In the matter between:

THE PUBLIC SERVANTS ASSOCIATION OF
SOUTH AFRICA APPLICANT

and

DEPARTMENT OF EDUCATION RESPONDENT
(WESTERN CAPE)

________________________________________________________

ARBITRATION AWARD
_________________________________________________________

.1 I was scheduled to chair an arbitration at Western Cape offices of the Education Laobur Relations Council in a dispute between the Public Servants Associations of South Africa (“PSA”) and the Western Cape Education Department (“WCED”). In this dispute the PSA was acting on behalf of one of their members, Mr M A Koct. They contended that the WCED committed an unfair labour practice by failing to process an application for a buy back of pensionable service expeditiously.

1.2 The arbitration hearing was scheduled to take place at 09h00 on 28 May 2001. The Education Labour Relations Council however received notice on Friday, 25 May 2001 at 15h09 that the Applicant was withdrawing the case. Mr Kokt arrived at the arbitration forum wishing to proceed with the unfair labour practice claim.

1.3 The issue which I was accordingly required to rule on as a point in liminé or jurisdictional point was whether or not Mr Kokt could proceed with his complaint in the fact of the withdrawal of the matter by the PSA.

1.4 The PSA was, in its own right, the Applicant in these proceedings. The matter has now been withdrawn. Although Mr Kokt had a substantial interest in the matter, he had not been a party to the referral and therefore has no further locus standi. I accordingly have no further jurisdiction in this dispute.

1.5 I have also given consideration to the merits of Mr Kokt’s matter to establish whether his complaint could properly fall under the Unfair Labour Practice definition as provided for in Part B of the 7th schedule to the Labour Relations Act.

1.6 In simple terms, Mr Kokt’s complaint was as follows:

1.6.1 In 1996 he applied to the Administrator of the Pension Fund under the auspices of the Department of Fincance in order to ascertain whether he could buy back pensionable service. This application was lodged through the WCED which acts as the processing agent for the Pension Fund.

1.6.2 Unfortunately Mr Kokt’s application was not processed expeditiously.

1.6.3 It then appears that at the end of 1996 the Pension Fund’s rules changed and the buy-back formula changed.

1.6.4 Mr Kokt again submitted an application to the Pension Fund for buying back pensionable service in 1997.

1.6.5 Mr Kokt accepted a voluntary retrenchment package in July 1998. At this point in time he established that the buy-back formula which was available to him, was considerably less favourable to him than the buy-back formula which would have been available had his initial application in 1995 be processed timeously.

1.6.6 Mr Kokt accordingly alleges that the WCED’s failure to process his initial application timeously constitutes an unfair labour practise.

1.6.7 The definition of “unfair labour practice” reads as follows:

“For the purposes of this item, an unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving –

(a) …
(b) unfair conduct of the employer relating to the promotion, demotion or training of an employee relating to the provisions of benefits to an employee.
(c) …
(d) …”
(my underlining).

1.7 In my view, the issues to be decided on are two-fold, namely:

“Can the employer’s failure to process the application for a pension buy-back expeditiously constitute unfair conduct?

Was the WCED involved in providing benefits?

1.8 In my view the failure, per se, to process a claim expeditiously (or neglect of this nature) does not constitute “unfair conduct”. If the WCED has indeed acted negligently ( or otherwise failed to comply with its “duty of care”, this may give rise to a delictual claim for damages but that is ot synonymous with “unfair” conduct.

1.9 Furthermore, for a claim to fall properly within the stated definition of an unfair labour practice, the alleged unfair conduct must related directly to the act of providing benefits by the employer. In this particular case the benefits which could have been provided to Mr Kokt would have been benefits granted by the Pension Fund. The employer in this instance was simply fulfilling an administrative funcion for, and at the best of, the Pension Fund by processing the claim and verifying the contends of the application at filed by the employee concerned.

2. CONCLUSION:

I have concluded that I do not have jurisdiction to arbitrate the dispute. I have also considered the applicability of the claim of an unfair labour practice to Mr Kokt’s complaint and record that I do not believe that he has a claim under his head. Whilst it is of course possible for him to refile his complaint in his own right and seek condonation tor failing to comply with the stipulated time limits, it would appear as if his claim would be better suited for a complaint filed with the Pension Funds Adjudicator or possibly a civil claim for damages. In both of these instances he would need to be wary of the possibility that his claim may well have prescribed. I have not considered the merits of his claim under either of these options.

NEIL VAN ZYL
ARBITRATOR
DATED: 30 MAY 2001

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 214 WC
APPLICANT PUBLIC SERVANTS ASSOCIATION
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR NEIL VAN ZYL
DATE OF ARBITRATION 28 MAY 2001
VENUE POLOKWANE

REPRESENTATION:
APPLICANT SELF
RESPONDENT MR MASEKO

AWARD:

DATE OF AWARD 30 MAY 2001