IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

Case No: ELRC409-23/24FS

In the matter between

MOLANGOANA ZACHARIA PHOLOSI Applicant

and

DEPARTMENT OF EDUCATION: FREESTATE PROVINCE Respondent

ARBITRATOR: Monde Boyce

HEARD: 27 November 2024 and 28 February 2025

CLOSING ARGUMENTS: 11 April 2025

DATE OF AWARD: 21 April 2025

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION: 

[1] This matter was set down for arbitration on 27 November 2024 at the provincial offices of the Freestate Education Department in Bloemfontein. The matter could however not be finalized on the above-mentioned date and the ELRC, by agreement with the parties, set the matter down for a hearing on 28 February 2025 and scheduled the matter to proceed virtually. The applicant, on both dates, appeared in person while Mr Moloi represented the respondent.

[2] During the virtual sitting of 28 February 2025 it was agreed that parties would make further written submissions by no later than 10 March 2024, but only the applicant made submissions albeit after a lengthy delay owing to him finalising calculations of the exact amount for the period he had acted for, and the respondent failed to make submissions despite having given both parties more than enough time to make the submissions.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the respondent committed unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the “LRA”) by failing to pay the applicant an acting allowance for his having acted as a principal between 22 June 2021 and 31 March 2024, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant is employed by the Freestate Department of Education as a principal and has acted in this capacity before his permanent appointment. What gave rise to the dispute was the respondent’s failure to pay the applicant an acting allowance during his acting tenure as the principal. The applicant referred the dispute for arbitration after it could not be resolved at conciliation. The applicant seeks payment of the acting allowance for the periods 22 June 2021 to 31 June 2024 as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicants’ Submissions

[5] The applicant submitted that he acted in the position of principal at Ipekiseng Secondary School. He acted in the position of principal from the periods of 22 June 2021 to 31 March 2024. A settlement was reached to pay him the outstanding acting allowance, but only he signed the agreement while the respondent ended up not signing the agreement.

The Respondent’s Submissions

[6] Except for conceding in the sitting of 27 November 2024 that the applicant is owed the acting allowance and that submissions for approval were made to the Head of Department (HOD) with the only issue being that the HOD referred the submissions back to the district, the respondent made no further submissions in particular after the virtual hearing of 28 February 2025.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[7] Trite to mention from the onset is that this award is made in instances where the issue of whether the applicant is owed the acting allowance was not placed in dispute. The respondent conceded that the applicant is owed the acting allowance. To the extent the respondent accepted that the applicant is owed the acting allowance, an agreement was prepared before a commissioner who heard this matter before me, but that agreement never saw the light of day because the respondent ended up not signing it. I should mention that on engaging the parties seeking to understand what the holdup was in finalising the payment, all the respondent could say was that the district was still attending to the issue. Having afforded the respondent sufficient time to sort out whatever internal issues preventing the acting allowance from being paid from 27 November 2024, I concluded that the respondent had sufficient time to sort out the issue of payment. While the respondent, on 28 February 2025, sought to move an application for postponement on account of Mr Hendricks from the Human Resources department having been hospitalised, I refused the application as I was not convinced that granting the respondent any further time would result in finalisation of the matter.

[8] To the extent that the applicant acted in the position of principal and to the extent that the outstanding acting allowance is owed to the applicant and further to the extent that the respondent also agreed that it owes the applicant the acting allowance, all that was required for the respondent was to effect payment. The matter dates back to 2023 and had been before a different commissioner where a settlement agreement was prepared but not signed by the respondent. As such, the matter still serves before the ELRC not because the respondent is not aware of or disputes that the applicant acted in the position for the said period and owed the acting allowance. It serves before the ELRC because officials whose responsibility it is to ensure that payment of the acting allowance is effected do not want to take responsibility.

[9] While submissions were made to the Head of Department (HOD) for approval of payment, what seems to be a challenge hindering payment of the acting allowance is the HOD referring the submissions back to the district owing to the submissions not having been made on time. This appears to be the crux of the delay. But this cannot be blamed on the applicant. The applicant acted in the position and is entitled to payment of the acting allowance, and the respondent’s failure to pay him accordingly does constitute unfair conduct. As I often state, acting appointments are not sudden. They are usually planned and follow a process that would cause the respondent to be aware of the precise period that the applicant would act in the position. Acting appointments are made on a regular basis and the relevant officials do know what they are required to do to ensure that payment of the acting allowance is effected. Any tardiness on their part, as it appears to be the case, cannot be faulted on the applicant. That officials responsible for making the submissions for approval by the HOD are now unsure of what to do with the explanation sought by the HOD cannot be the applicant’s fault.

[10] As things stand, the applicant has acted in the position since 2021 before his permanent appointment in 2023, but has only been paid for three months of his acting. This surely cannot be fair. Even if the respondent were to argue that it is still trying to sort out the payment, I would still reject that it would take more than three years to finalise payment. The respondent had more than enough time to finalise payment or attend to whatever issues that would cause the delay in payment. Quite worrying is the fact that in both sittings of 27 November 2024 and 28 February 2025, there did not appear to be any cogent explanation for the delay in effecting payment except that the submissions for approval initially made to the HOD were referred back to the district. No explanation was provided as to the steps taken to remedy or address the concerns the HOD had when referring the submissions back to the district and not signing in approval. But even if I were to accept that there were genuine challenges causing the delay in approval of payment of the acting allowance, I would still reject that it would take more than three years from when the applicant started acting in the position to attend to those challenges. There simple is no explanation provided as to what the respondent has been doing to get payment of the acting allowance approved from when the submissions were referred back to the district. I again mention that I am quite taken aback that a matter that the respondent is capable of resolving internally and that it could have resolved internally had to take an arbitration process to finalise in instances where the applicant actually acted in the position at the behest of the respondent.

[11] My calling for submissions to be made before making this award was also to make sure that to the extent both parties would know the exact amount that should be paid to the applicant for having acted, that submissions would include a table of the exact amount to be paid and how it has been arrived at to avoid the matter serving before the ELRC again for quantification. But it is again only the applicant who has furnished the table of the exact amount he believes he should be paid, and this amount totalled R722, 645.70 calculated from 22 June 2021 to 31 March 2024 that the applicant acted as the principal.

[12] In the premises, I make the following award:

AWARD

[13] The respondent’s failure to pay the applicant the acting allowance constitutes unfair labour practice, and the applicant is thus entitled to the relief he seeks.

[14] The respondent is ordered to pay the applicant the acting allowance in the amount of R722, 645.70 (SEVEN HUNDRED AND TWETNY TWO THOUSAND SIX HUNDRED AND FOURTY-FIVE RAND SEVENTY CENTS).

[15] The respondent must pay the amount in paragraph [14] above by no later than 30 May 2025.

Monde Boyce
Panelist: ELRClist: Alta Reynolds