THE ARBITRATION MATTER BETWEEN
SAOU obo POSTHUMUS, FRANCHELLE ELAINE APPLICANT
VS
FREE STATE DEPARTMENT OF EDUCATION RESPONDENT
Case No: ELRC845-19/20FS
Dates: 21 July 2021
Venue: Provincial Office of Education, Bloemfontein
Arbitrator: David Pietersen
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. This is the award in the arbitration matter between Suid-Afrikaanse Onderwys Unie (SAOU) obo Mrs Franchelle Elaine Posthumus (the applicant) versus the Free State Department of Education as the respondent. The arbitration hearing took place on 15 June 2021 at the respondent’s office in Bloemfontein, after several postponements. The applicant was represented by Mrs H Human, the Assistant Provincial Secretary of SAOU. The respondent was represented by Mr v Gubuza, its Deputy Director Labour Relations.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council) in terms of section 186(2)(a) of the Labour Relations Act (the LRA) and the award is issued in terms of section 138(7) of the LRA.
3. The proceedings were digitally recorded. The parties requested to submit heads of arguments on 18 June, 25 June and 02 July 2021 where after the award shall then follow.
ISSUE TO BE DECIDED
4. I am called upon to decide whether the respondent committed an act of unfair labour practice: benefits when it refused to approve a certain part of the applicant’s maternity leave application.
BACKGROUND TO THE DISPUTE
5. It is common cause that the applicant is employed by the respondent as an Educator since 01 July 2019 at Staats President Swart High School to date. She was employed on a fixed-term six months contract and then on a full-time basis thereafter. The dispute follows situation where the respondent refused to pay a 60 days’ maternity leave application of the applicant. It only approved and pay 40 days of the application.
6. The applicant lodged an unfair labour practice dispute: benefits with the Council on 17 January 2020. Conciliation took place on 21 February 2020. The dispute remained unresolved and a certificate of non-resolution of the dispute was issued. The applicant subsequently applied for arbitration which was postponed several times until its end.
7. The applicant believes that the respondent’s refusal not to pay for the other 20 days was unfair and wishes that it be paid to her as a form of relief.
SURVEY OF EVIDENCE AND ARGUMENT
8. This section constitutes a brief summary of the evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have taken all the submissions into consideration in arriving at my conclusions. After making presentations at the arbitration hearing, the parties agreed to submit heads of arguments, which I did receive.
Documentary Evidence
9. The parties agreed to use the applicant’s bundle of evidence as documentary evidence for purposes of this arbitration.
Applicant’s Heads of Arguments
10. The applicant submitted that she was employed on a fixed-term contract on 01 July 2019 until 31 December 2019. She stated that it was on this basis that she applied for 60 days maternity leave at 10 days per month. The applicant submitted that on 11 November 2019, the respondent informed her via email that her maternity leave was approved for only 40 days and that the other 20 days would be regarded as unpaid leave.
11. The applicant submitted that she could not afford to take 20 days unpaid leave and returned to work on 13 November 2019. She submitted that on 26 November 2019, her union SAOU registered an internal grievance on her behalf with the respondent. She stated that the respondent refused to cooperate and deal with her grievance which led to her decision to lodge a dispute with this Council.
12. The applicant referred to the LRA, various case law and the respondent Personnel Administrative Measures (PAM) document and argued that she is entitled to the benefit because it is judicially created. She submitted that section 25 of the Basic Conditions of Employment Act (the BCEA) provides for a minimum of four months maternity leave and that collective agreements and employment contracts are not allowed to provide conditions which are less favourable than the BCEA.
13. The applicant submitted that the PAM is in line with the BCEA and placed reliance on paragraph H.8.1 to justify it. She stated that she should have been given 60 days maternity leave based on the length of her contract (six months) and not lesser. The applicant submitted that the four months made mention of in the contract refers to the maximum of four months which permanent educators are entitled to.
14. The applicant submitted that I should find in her favour and make the following order:
– The Respondent committed an unfair labour practice.
– The Respondent be ordered to compensate the Applicant for the 12 calendar days maternity that she was denied.
– The Respondent to pay the Applicant an amount of R9334.60 (Gross salary per month = R23 336.50; R777.83 per day) Alternatively,
– The Respondent be ordered to award the Applicant the maternity leave owed to her and to allow
her to take 12 calendar days maternity leave during the course of 2021.
Respondent’s Answering Affidavit
15. The respondent noted points 1 – 27 of the applicant’s heads of arguments as common cause and submitted on point 28 that the maternity leave benefits are calculated at each month of the term of contract to a maximum of four months which amounts to 40 days. The respondent submitted that the maximum of four months as indicated in the PAM refers to the duration of the fixed-term contract and not the total number of leave days applied for.
16. The respondent further requested that I should apply my mind to the matter at hand and that should I find the interpretation of the applicant as correct, that I should than order that they (the parties) should enter into an agreement on when the remaining 20 days should be taken. It further submitted that I should not award compensation because there was no malice on its side.
Applicant’s Replication
17. The applicant did not reply to the answering papers of the respondent.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. Even though this is an unfair labour practice dispute relating to benefits, the parties in actual fact wants me to interpret their collective agreement (the PAM document) when arriving at a conclusion of some sort. Be that as it may, I shall proceed to apply the relevant policies to this dispute as requested to do so by the parties.
19. The common cause facts of this dispute are that the applicant was a fixed-term contract educator (temporary educator) at the time when this dispute occurred. She was still within the six months fixed-term contract when the need arose for her to utilise her maternity leave benefit. The respondent did not deny her the benefit, however, the amount of maternity leave days given to her is what forms the crux of this dispute.
20. The question is, did the respondent correctly interpret and applied its PAM document to the instance of the applicant through their employment contract or not? I shall consider the relevant policies to this dispute before I answer the question.
21. The applicant’s fixed-term contract provides the following:
10.5 Maternity Leave
“An educator appointed in a temporary capacity (Fixed term contract) shall be granted leave that is proportional to her term of contract at a rate of 10 calendar days maternity leave with full pay calculated at each month of her term of contract to a maximum of 4 months, where after maternity leave without pay shall be granted. The total period granted in respect of maternity leave shall not exceed four consecutive months.”
22. It is important to note that the applicant is not challenging the lawfulness of the fixed-term contract but rather the manner in which the respondent implemented it. The wording of the contract is clear that the leave shall be granted to the applicant in proportion to the term of her contract. Reference is made to the term of contract rather than to the maximum of four months consecutive leave. The maximum of four months as specified in the contract refers to the number of months during the duration of the contract, where after maternity leave without pay shall be granted for the remainder of the months of the contract.
23. Paragraph 18.1.3.1 of Chapter H of the respondent’s PAM document provides the following:
H.18 LEAVE PROVISIONS FOR EDUCATORS IN A TEMPORARY CAPACITY (FIXED TERM
CONTRACT) (PSCBC Resolution 1 of 2007, Government Gazette No. 30134, dated 30 July 2007 and
the Determination on leave of absence in the public service, July 2009)
H.18.1 An educator appointed in a temporary capacity (fixed term contract) is eligible to the following types
of leave on a pro rata basis linked to the duration of his/her contract:
H.18.1.3 Maternity, pre-natal and paternity leave
H.18.1.3.1 An educator appointed in a temporary capacity (fixed term contract) shall be granted paid maternity leave that is proportional to her term of contract at a rate of 10 calendar days maternity leave with full pay calculated at each month of her term of contract to a maximum of 4 months, where after maternity leave without pay shall be granted. The total period granted in respect of maternity leave shall not exceed four consecutive months. [my emphasis]
24. My reasoning and interpretation in paragraph 22 equally apply here as well. The PAM document is even clearer than the contract in that it clearly stipulates that the applicant qualifies for 10 calendar days maternity leave for every month of her fixed-term contract to a maximum of four months. Four months meaning four months of the fixed-term contract if the contract is longer than three months, not four months as a maximum amount of time which can be given as maternity leave.
25. The applicant also referred to paragraph H.8.1 of the PAM to strengthen is argument. It provides the following:
H.8 MATERNITY LEAVE, PRE-NATAL AND PATERNITY LEAVE
H.8.1 An educator is entitled to 4 consecutive months’ maternity leave on full pay to commence at least 14
days prior to the expected date of birth but not later than the actual date of birth in a case of a
premature confinement.
26. The point that the applicant is missing here is that H.8.1 is referring to full-time (permanent) educators which is not applicable to the instance of the applicant who was a temporary educator at the time. H.8.1 is therefore not applicable to this case.
27. Section 25 of the BCEA provides the following:
25. Maternity leave—
(1) An employee is entitled to at least four consecutive months’ maternity leave.
28. The applicant referred to the BCEA and argued that the collective agreement (PAM) cannot legislate outside the BCEA. Though I agree with the applicant that section 25(1) of the BCEA applies to employees, however, the applicant at the time was in a non-standard employment relationship with the respondent. The full benefits provided for in a standard employment relationship were therefore not applicable to the applicant who was in a fixed-term (non-standard) employment relationship as provided for in the collective agreement (PAM).
29. Section 49 of the BCEA further provides:
49. Variation by agreement.—
(1) A collective agreement concluded in a bargaining council may alter, replace or exclude any basic
condition of employment if the collective agreement is consistent with the purpose of this Act and the collective agreement does not—
(a) reduce the protection afforded to employees by sections 7, 9 and any regulation made in terms of
section 13;
(b) reduce the protection afforded to employees who perform night work in terms of section 17 (3) and
(4);
(c) reduce an employee’s annual leave in terms of section 20 to less than two weeks;
(d) reduce an employee’s entitlement to maternity leave in terms of section 25;
30. It appears as common cause that the PAM document did not reduce the respondent’s employees’ entitlement to maternity leave as prohibited by section 49(1)(d) of the BCEA. In fact, the applicant is on record to state that the PAM is consistent with the BCEA.
31. It is accordingly my finding that the respondent correctly interpreted both the PAM document and the applicant’s employment contract to the maternity leave application of the applicant in 2019 (during her six months fixed-term contract) and that the action of the respondent did not amount to an unfair labour practice: benefits.
32. Section 186(2)(a) of the LRA stipulates the following:
186 Meaning of dismissal and unfair labour practice
(2) ‘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 benefits to an employee;.
33. The respondent’s limitation of the applicant’s maternity leave in accordance with the fixed-term contract and the PAM document, did not violate the applicant’s right to fair labour practice.
34. In the premise, I make the following award:
AWARD
35. The respondent, Free State Department of Education did not commit an act of unfair labour practice: benefits towards the applicant, Mrs Franchelle Elaine Posthumus.
36. The applicant’s case is hereby dismissed.
This is done and dated on 21 July 2021 at Warrenton.
David Pietersen
ELRC Commissioner