Commissioner: Gail McEwan
Case No.: ELRC71-22/23 EC
Date of Award: 21 July 2022

In the ARBITRATION between:

SAOU obo EUGENE DU TOIT and LINDSAY STROBEL
(Employees)

and

THE DEPARTMENT OF EDUCATION OF THE EASTERN CAPE
(Employer)

Union/Employee’s representative: Stephanie Reed (SAOU)

Employer’s representative: Sandiso Xhalisile

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

(1) Arbitration was held on 20 July 2022 and was heard virtually with the consent of the parties. Present was Eugene Du Toit and Lindsay Stroebel (employees) who was represented by Stephanie Reed (SAOU) (Suid-Afrikaanse Onderwysers Unie). The Department of Education of the Eastern Cape (employer) was represented by Sandiso Xhalisile (labour relations officer). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 26 May 2022. These proceedings were digitally recorded.

THE ISSUE IN DISPUTE

(2) I am required to determine on a balance of probabilities whether the employer committed an unfair labour practice when Du Toit and Strobel were not paid the balance due on their capped leave when they both retired.

(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

THE BACKGROUND TO THE DISPUTE

(4) Du Toit started working for the employer on 26 January 1981; his last post has been as the principal of Tjaart Van Der Walt Primary School in Gqeberha; he earned R751 338.00.00 per annum and claims he was subjected to an unfair labour practice when he was not paid out his capped leave of 169.28 days annual leave with a gross value of R487 032.23 on his retirement on 30 June 2021.

(5) Stroebel stared working for the employer on 1 January 1983; her last post was at Merryvale Special Needs School in Gqeberha as a level 1 educator; she earned R454 146.00 per annum and claims she was subjected to an unfair labour practice when she was not paid out her capped leave of 101.51 days annual leave with a gross value of R175 935.10 on her retirement on 31 March 2021.

SUMMARY OF EVIDENCE AND ARGUMENT

(6) Reid led evidence regarding the background and the fact that the capped annual leave had not been paid out to both employees on their respective dates of retirement. Reid confirmed the information as stated in clauses 4 and 5 of this award.

(7) It was conceded by Xhalisile that the capped leave is due and payable according to the Persal system as stated in clauses 4 and 5 of this award.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

(8) It was conceded by the employer that there was an unfair labour practice committed when both employees were not paid out the value of their capped leave on retirement.

AWARD

(9) It was conceded by the Education Department of the Eastern Cape that they had committed an unfair labour practice when Eugene Du Toit and Lindsay Stroebel retired on 30 June 2021 and 31 March 2021 and were not paid out their capped leave of 169.28 and 101.57 days with a value of R487 032.23 and R175 935, respectively.

(10) The Department of Education of the Eastern Cape is ordered to pay Eugene Du Toit an amount of R487 032.23 and to also pay Lindsay Stroebel and amount of R175 935.10. The amounts after tax is to be paid to each employee by no later than 1 August 2022.

Gail McEwan
COMMISSIONER