In the ARBITRATION between:

NAPTOSA obo Bell, John
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Adv. Gavin Saayman
Applicant’s address:

Telephone: 041 364 0399
Telefax:
Email: saaymangavin@gmail.com

Respondent’s representative: Ms Annalie Slabbert
Respondent’s address:

Telephone: 071 814 8607
Telefax:
Email ansie68lro@gmail.com

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 17 May 2022 and the proceedings were electronically recorded.

2. The Applicant, Mr John Bell, was represented by Advocate Gavin Saayman, Legal Labour Official of NAPTOSA, a registered trade union. The Respondent, Department of Education – Eastern Cape was represented by Ms Annalie Slabbert, an Employee Relations Officer of the Respondent.

ISSUE TO BE DECIDED
3. Whether the Respondent’s non-payment of the Applicant’s claimed capped leave, upon his retirement, amounts to an Unfair Labour Practice as per Section 186(2)(a) of the LRA.
4. If so, determine appropriate relief.

BACKGROUND TO THE ISSUES

5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

5.1 The Applicant, a former educator, retired on 31 December 2020.
5.2 At the time of his retirement, he was employed in a post level 2 post and earned R568 347.00 per annum.
5.3 The Applicant’s capped leave, at the time of his retirement, amounted to 101 days.
5.4 The monetary value of the aforementioned 101 days is R236 006.98
5.5 The Applicant was not paid out his capped leave upon his retirement or to date.
5.6 The monies are owed to the Applicant.
5.7 The monies claimed amount to a benefit.
5.8 The basis of the claim is Chapter H of the PAM document.

SURVEY OF EVIDENCE AND ARGUMENT

6. All facts, as per paragraph 5.1 to 5.8 above, were common cause.

7. Both parties were afforded an opportunity to lead any further evidence if they so wished. Both indicated that they had no further evidence to lead.

ANALYSIS OF EVIDENCE AND ARGUMENT

8. Section 186(2) of the LRA states “Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of a benefit to an employee. (Own underlining)

9. It is common cause between the parties that the capped leave money, claimed by the Applicant, is a benefit. It was further common cause that Chapter H of PAM was the basis of the claim.

10. The Respondent agrees that the 101 days capped leave, claimed by the Applicant, is owing to him by the Respondent and that the quantum of the claim is R236 006.98. As a result, I am of the view that the non-payment of the said monies amounts to an Unfair Labour Practice in that it is unfair conduct by the Respondent against the Applicant, relating to benefits, as contemplated in Section 186(2)(a) of the LRA.

11. The Respondent has therefore committed an Unfair Labour Practice against the Applicant.

AWARD

12. The Respondent, the Department of Education: Eastern Cape, has committed an Unfair Labour Practice, relating to benefits, against the Applicant, Mr John Bell, by not paying out his capped leave days, in the amount of R236 006.98, upon his retirement.

13. The Respondent, the Department of Education: Eastern Cape, must pay the Applicant, Mr John Bell, an amount of R236 006.98, less normal deductions.
14. The amount, as referred to in paragraph 13, must be paid to the Applicant by no later than 30 June 2022.

Name: Clint Enslin
(ELRC) Arbitrator