25 April 2023 – ELRC699-22/23FS

ARBITRATION AWARD

Panelist: Selolong Mosoma
Date of Award: 21 April 2023

In the ARBITRATION between:

SADTU obo Moloi Mookgo Anna
(Union / Applicant)

and

Department of Basic Education: Free State Provincial Government

(Respondent)

Applicant’s representative: Bells Mbhele
Applicant’s address: SADTU

Telephone:
Telefax:
Email

Respondent’s representative: Department of Education Free State
Respondent’s address:

Telephone:
Telefax:
Email.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This is the default arbitration award in the arbitration matter between SADTU obo Moloi Mookgo Anna, the Applicant and Department of Education Free State Provincial Government, the Respondent.
2. The arbitration took place on 13 April 2023, at the Respondent’s premises in Qwa Qwa.
3. The Applicant appeared in person and represented her trade union official, Mr. Bells Mbhele. The Respondent was not in attendance not represented in the proceedings.
4. I proceeded in absence of the Respondent in terms of section 138(5) of the LRA. I was satisfied that the Council has duly notified the Respondent of the proceedings via an email on 15 and 24 March 2023. It is worth mentioning that attempts were made to contact the Respondent telephonically to see if this matter could be amicably resolved between the parties but without any success.
5. The Applicant submitted a bundle of documents on record.
6. The proceedings were conducted in English and mechanically recorded.

BACKGROUND TO THE DISPUTE
7. The Respondent is a Provincial Department of Education based in Bloemfontein. The Applicant was appointed as Deputy Principal, based at Mantshatlala Intermediate School in Qwa Qwa under Thabo Mafutsanyana District.
8. The Applicant averred that she acted on a vacant and funded position of the school principal for a period of 12 months and was only paid her acting allowance for six (06) months. She indicated that the Respondent told her that they will not pay her acting allowance for the other six months because she submitted her documents very late.
9. The Applicant sought to be paid all the monies owed to her by the Respondent as a relief.

PRELIMINARY ISSUE
10. None, because there was no formal application for postponement before me to consider.

ISSUE TO BE DECIDED
11. The issue for determination is whether the Applicant is owed money in terms of ELRC Collective Agreement number 8 of 2022.
12. The Applicant sought to be paid her acting allowance as a relief.

SURVEY OF EVIDENCE AND ARGUMENT
13. The Applicant testified as follows, under oath:
14. Ms. Moloi Mookgo Anna, testified that she was employed by the Respondent as a Deputy Principal at Mantshatlala intermediate School in Qwa Qwa, earning a monthly salary of R 37 273,75. She stated that she was not paid her acting allowance for period of six months (February to July 2022), and she could not quantify the total amount owed to her because it was fluctuating.
15. She stated that she lodged a query with the Respondent, and she informed the School Governing Body (SGB) after not getting any joy from the Respondent. Her matter was escalated to Human Resources Management at the District level. The District office informed her that her acting allowance will not be paid because she submitted her documents very late.
16. The Applicant referred to Educators Labour Relations Council Collective Agreement number 8 of 2002, which deals with acting allowance and conditions under which an acting allowance will be paid.
17. She averred that she met all the requirements as outlined in ELRC Collective agreement 8 of 2002, therefore she is entitled to receive her acting allowance.
18. Lastly, she indicated that the Respondent must pay her acting allowance for the remaining six (06) months (February to July 2022).

ANALYSIS OF EVIDENCE AND ARGUMENT
19. Clause 5 of ELRC Collective Agreement number 8 of 2002, says an acting allowance will be aid only to an educator who acts:
1. In such a post where the permanent incumbent is absent due to the following;
a. Maternity
b. Sick leave
c. Study leave
d. Suspension
e. Secondment
2. If the period of appointment is longer than (12) weeks; but limited to a maximum of twelve months.
20. Clause 6 says, compensation shall be backdated to the date on which the educators commenced acting provided that the acting twelve (12) consecutive weeks or longer.
21. The Applicants’ evidence was the Respondent did not pay her acting allowance for the period of six months. She further submitted documents to substantiate her claim that she is owed acting allowance by the Respondent.
22. The evidence against the Respondent is that they failed to pay Applicant’s acting allowance for a period of six months (February to July 2022). Again, the Respondent’s reason for non-payment of the Applicant’s acting allowance is that she submitted her documents very late.
23. There is nothing else before me or from the evidence to suggest that the Applicant was paid her acting allowance for the period February to July 2022.
24. In the absence of a version disputing the Applicant’s allegations, I have no reason to disbelieve the Applicant’s version. Therefore, the Respondent failed to pay acting allowance owing to the Applicant in terms of ELRC Collective Agreement number 8 of 2002.
25. In light of this, I find that the Applicant has proved that the Respondent has failed to pay the acting allowance owing to the Applicant in terms of ELRC Collective Agreement number 8 of 2002.
26. In the premises, I find that the Applicant has demonstrated that the Respondent owes her acting allowance for the period February to July 2022, and she is entitled to relief sought.
REMEDY
27. The Applicant sought to be paid the outstanding monies owed to her by the Respondent.
28. The amount owed to the Applicant is R 7 250.00 x 06 months = R 43 500,00, the difference between the Applicant’s current remuneration or notch and the notch of the principal post.
29. Compensation should be (R 7 250.00 x 6 months), R 43 500.00.
30. Total amount payable to the Applicant is R 43 500.00.
AWARD
31. The Respondent, Department of Education Free Provincial Government, owes the Applicant monies as illustrated in paragraph 28 supra.
32. The Respondent, Department of Education Free State Provincial Government, is ordered to compensate the Applicant an amount of R 43 500.00.
33. Payment of the amount referred to in paragraph (29) must be effected by paying the said amount into Applicant’s bank account known to the Respondent by no later than 15 May 2023.
34. Failure to comply with the award the amount will accrue interests in line with provisions of section 143 (2) of the Labour Relations Act, Act 66 of 1995 as amended.