In the ARBITRATION between:

NAPTOSA obo Gordon – Smith & 2 Others
(Union / Applicant)

And

Western Cape Department of Education
(Respondent)

Union/Applicant’s representative: C. Harris
Union/Applicant’s address : 10 Paddington Court
Diep River,
7785
Telephone : 021 686 8521
(Email)Telefax :cailynh@naptosa.org.za

Respondent’s representative: L. Mbotoloshi
Respondent’s address : Private Bag x 9114
Cape Town
8000
Telephone : 021 467 2846
(Email)Telefax : labour@fseducation.gov.za

DETAILS AND REPRESENTATION

1. This dispute between NAPTOSA obo Gordon-Smit & 2 Others (“the applicant”) and Western Cape Department of Education (“the respondent”) was referred to arbitration in terms of clause 17 of the Education Labour Relations Council‘s Constitution (henceforth referred to as “the ELRC”).

2. Ms C. Harris (“Harris”), an official from the trade union, NAPTOSA, represented the applicant party and Mr L. Mbotoloshi (“Mbotoloshi”), an employee of the respondent, appeared on behalf of the respondent. It must be noted that the referral was condoned on 29 January 2020 and the matter was conciliated on 24 February 2020. Arbitration was requested on 10 March 2020. The case was first set down on 22 September 2020 but was postponed with costs to both parties. The arbitration proceedings took place on 16 November 2020 and 02 December 2020, virtually through zoom.

ISSUES IN DISPUTE

3. The issue in dispute is whether the respondent committed an unfair labour practice when it did not pay the three employees 37% in lieu of benefits when it paid salaries.

BACKGROUND TO THE ISSUE

4. The applicant is a trade union which referred a dispute on behalf of its three members. The dispute is related to the PSCBC resolution (“PSCBC resolution”), paragraph 11 read with the Personnel Administrative Measures (“the PAM”).

5. The applicant’s contention is that the three employees were contract workers who were entitled to have received on top of their basic salary, 37% in lieu of benefits. On the other hand, the respondent’s view is that the resolution excluded the three employees as they fell under the bracket of “retirement age”. It is therefore clear that there is an issue with whether the resolution applies to the three employees. In order to decide whether a right claimed from a collective agreement is due to any employee, it must first be ascertained as to whether such an agreement applies to the employee in question.

6. It is therefore clear that I will first have to have regard to the agreement and decide whether it applies to the employees in question before I can decide whether there is any benefit deriving from the agreement. What then becomes a concern is whether, a panellist from the ELRC, in dealing with a right dispute, is empowered to have regard to a collective agreement from another bargaining council.

7. It is a well-known fact that panellists are empowered by the constitution of the Bargaining Council they operate under, to determine whether they may preside over a matter. It is therefore vital to first look at what the ELRC constitution empowers me to do with regard to PSCBC resolutions.

8. Clause 1 of the ELRC Constitution of 2016 at sub- clause 1(1.1.4) provides that “A dispute of right declared in terms of a collective agreement concluded in the PSCBC may be referred to the ELRC, if the employer is the same as the employer in the ELRC.”

9. It is clear from the PSCBC resolution that the employer is the state. The ELRC constitution at clause 70.13 defines the employer as the state. Furthermore, it must also be noted that the then Minister of Basic Education, Naledi Pandor, had in the Government Gazette No 30232 declared the PSCBC Resolution as applicable to educators employed in terms of the Employment of Educators Act .

10. Furthermore, in the same gazette, it was declared that the PAM will be amended in order to include the matter. If the referral was made in terms of section 24 of the LRA , I would not have had any jurisdiction to deal with the PSCBC resolution. Since the main issue is not that of section 24, but a right dispute (alleged unfair labour practice), the ELRC’s Constitution , does empower me to deal with the PSCBC Resolution read with the amended PAM of 2016.

11. Parties had initially wanted the matter to only be argued on papers and I refused such request as it was clear that there was a dispute of fact. The referral was made in terms of section 186(2) of the LRA and such provision deals with unfairness, which makes such disputes factual disputes. Even though Harris was asked numerous times whether she would be calling any witnesses to testify, she maintained that she was only going to do submissions. I warned her of the importance of calling witnesses but she kept on saying that the said employees were at school and could not attend. I made Harris aware that she has taken a decision to dispense with her right to call witnesses although onus of proof in this case rests on the applicant and she maintained that no witnesses were going to be called.

12. It is common cause that the three employees had taken a voluntary severance package (“VSP”) and were re-appointed on fixed term contracts. At all times during the arbitration proceedings, Mbotoloshi had been in agreement with Harris that the 37% in lieu of benefits had never been paid to the three employees since their re-appointment. The case proceeded with the understanding that the period in question was as follows:
• Mr H. Gordon- Smit (2018 to 2019).
• Mr A. Khan (01 May 2010 to present)
• Mr I Adams (2016 -2018)

13. After receiving the parties’ closing arguments, new information emerged with proof that employees were paid for some periods. It is for this reasons that I had to request the ELRC to set the matter down just for oral arguments so I could get clarity on the discrepancies picked up. Oral arguments were heard on 26 February 2021.

14. Both parties changed their versions and acknowledged that there were times the three employees were paid. Harris now alleged that the dispute was for the periods below:
• Mr H. Gordon-Smit (2018 to 2019).
• Mr A. Khan (August 2015 to 2019)
• Mr I Adams (2016 -2018)

SURVEY OF EVIDENCE AND ARGUMENT
15. I have considered the evidence led and the parties’ arguments. Only a summary of what is relevant to the dispute follows below.

The Applicant’s case

16. Ms Harris submitted that the three employees were entitled in terms of the PSCBC Resolution clause 11.3 and 11.4.2 read with clause B.3.1.9 of the PAM to receive 37% in lieu of benefits as they had been employed on a fixed term contract. She rejected the respondent’s argument to exclude them on the basis of them taking early retirement. It was her submissions that they did not take early retirement but were discharged due to rationalisation. At the time of taking a VSP, they were all below 65 and had been employed for more than 10 years.

17. Although the three employees took VSP in terms of the ELRC Resolution (“the ELRC Resolution), such resolution was valid until 31 March 1999. The PSCBC Resolution came into effect on 07 July 2007 and the PAM was amended in February 2016 and therefore superseded the ELRC Resolution.

18. The respondent deemed those who took a VSP to have been discharged in terms of the EEA not retired. There was a circular from the respondent indicating that those who took VSP were regarded as having been discharged without a negative connotation and not as employees who resigned. The PSCBC Resolution was quite on those employees who took VSP. The issue of employees being topped up to a retirement age did not regard them as excluded from receiving benefits. It was her argument that the three employees were eligible to receive the 37% in lieu of benefits as they had not reached the retirement age.

The Respondent’s case

Ms D. Pillay (“Pillay”)
19. She was the Director for service benefits and she managed all employees entering and exiting the department. The 37% in lieu of benefits was paid to contract workers whom retirement age did not apply as per the PSCBC resolution. In terms of subsection 1 and 4 of the EEA, educators were allowed to be on retirement before reaching the normal retirement age of 65 years. The three employees took severance package around 1996 and 1998 which was topped up to a retirement age of 60. By accepting the top up, they put themselves in a retirement age bracket, hence excluded from the 37% in lieu of benefits. They were regarded as retired employees.

20. Annexure A, paragraph 2(8) and 2)9) of the ELRC Resolution made it clear that candidates who identified themselves for voluntary termination under the said ELRC Resolution relinquished any claims to benefits payable under any other provision. Since the employees took VSP in terms of the ELRC Resolution, they had relinquished any claim of benefits.

21. During cross examination, she maintained that the reason for exclusion from receiving the 37% in lieu of benefits was because the three employees were deemed to have retired. Their package was toped up to 60 years and they were paid out as if they left employment at that age. With regard to the respondent’s circular, Pillay disputed that it applied to the three employees. She maintained that it referred to employee- initiated severance package (“EISP”) not the VSP ones. Employees who took EISP were regarded as resigned and they paid high tax after resigning. As a way to assist employees, the respondent issued a circular for those resignations to be treated as a discharge to assist with tax issues. The tax for those who resigned was higher than for those who were regarded as discharged.

22. It was the respondent’s argument that since the three employees left through early retirement, they were excluded by the PSCBC resolution from receiving the benefit they sought.

ANALYSIS OF EVIDENCE AND ARGUMENT

23. The onus rests upon the applicant to establish that the conduct complained of constitutes an unfair labour practice. It is common cause that the three employees took a VSP in terms of the ELRC Resolution between 1996 and 1998. It is clear from the parties’ arguments that they are in agreement that the PSCBC Resolution excludes those whom the retirement age applies from the term contract worker. Those excluded due to retirement are not covered under clause 11.3 and 11.4.2 of the PSCBC Resolution. It is therefore clear that if it is found that the three employees retired, they will be excluded from the benefit they are claiming. On the other hand, if such is not found, then they will qualify for benefits.

24. The applicant’s case essentially is that the three employees ought to have been paid the 37% in lieu of benefits as they had not retired from employment when they left. The respondent disputed this and led evidence of Pillay in which she testified that the employees in question were paid out as if they had retired, hence they were recognised as retired employees. Moreover, the respondent argued that the employees had relinquished any benefit as they had already been paid upfront as per the ELRC Resolution.

25. With regard to the ELRC Resolution, the applicant did not lead any evidence proving that the said Resolution was repealed or that it was later amended. The fact that it was valid until 1999 does not mean that what is contained in there does not apply to those who benefited from it when it was still valid. It is clear that the ELRC agreement was made for the purpose of ratification and as such, parties recorded terms and conditions binding to those who benefited from it.

26. The Constitutional court in Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another found that a clause in a voluntary separation package in which the parties relinquish their rights to approach the CCMA or the Labour Court regarding any dispute that arises from the work relationship is valid despite section 34 of the Constitution which grants every person the right to access to the court. This is because the parties agreed voluntarily to finalize a matter in this way.

27. In this case, the parties agreed in the ELRC Resolution that those who identified themselves for a VSP would relinquish any benefit payable under any other provision. In the absence of any proof that the said provision was amended or replaced with another one, the existence of the ELRC Resolution cannot be ignored as far as it binds those who benefited under it. Moreover, the main focus is on the PSCBC Resolution and the PAM. More weight would be given to such documents as this is the basis of the applicant’s case.

28. Harris confirmed that the three employees had not yet reached 60 when they left the respondent’s employment. She did not dispute that their package was topped up to the age of 60. No evidence was led that as a result of leaving employment early, they were deprived of any benefit, instead, what is clear from the testimony proffered is that they were paid for the years they did not work for.

29. Although the applicant’s argument is that the employees were discharged and did not retire as they did not reach a retirement age of 65, what the applicant must appreciate is that 65 is the compulsory retirement age as per section 10(1)(a) of the EEA, but not the only age recognised as retirement age for educators. Furthermore, reference to the circular the respondent issued is misplaced as it is clear on that circular that reference was to those employees who took EISP and the purpose for changing the termination reasons was solely to assist with tax issues.

30. The EEA allows employees to retire even before the age of 65 and includes a discharge of an educator as a retirement. Section 10(3)(b) of the EEA provides that:
“notwithstanding any reason for discharge in terms of section 11(1), the employer may, at the request of an educator, allow the educator to retire before attaining the age of 55 years, if the employer is of the opinion –
That a sufficient reason exists therefor; and
That the retirement will be to the advantage of the State”.

31. The applicant’s case has always been rationalisation was the reason for invites for a VSP. Therefore, rationalisation is a sufficient reason to allow early retirement and it goes without doubt that it is to the advantage of the State, which in this case is the respondent. Therefore, the age issue of the employees in question cannot be used as an argument against retirement.

32. The applicant relied only on paragraph B.3.1.9 when it comes to the PAM. It is provided therein that “An educator who is appointed in a temporary capacity (fixed term) for a period of more than 6 months, will receive the same benefits as a permanent educator ( for example pension, medical aid subsidy, housing and service bonus”.

33. It is clear from the provision of the PAM above that there is no mention of the 37% in lieu of benefits. Moreover, it was not the applicant’s case that permanent educators received 37% in lieu of benefits hence the claim of the 37% ( which could be seen as same benefits). This provision is a general provision and makes no reference to those employees who left employment on a VSP. The applicant failed to refer me to any provision of the PAM which deals with educators who took VSP although such provision exists.

34. There is no doubt that severance package is paid to employees who are retrenched. It is not disputed that the three employees were paid severance package when they left the respondent’s employment, which was topped up to 60 years. Paragraph E.3.1 of the PAM provides for retrenchment package. It terms the benefits to be received by an educator who, because of rationalisation, has been retrenched before reaching retirement age as “retirement benefits”.

35. My emphasis is on the underlined words. The employees in question left employment before reaching the normal retirement age due to rationalisation and they received benefits which were topped up. The PAM defines those benefits as “retirement benefits”. It is reasonable to accept that retirement benefits are received by those employees deemed to have retired. Moreover, paragraph B.3.4.4 read in line with B.3.4.4.1 and B.3.4.1 of the PAM recognises educators who took a VSP as educators who have retired or have retired prematurely. Therefore, it is probable that these employees were deemed to have retired when they took a VSP.

36. The applicant must appreciate that this dispute was not referred as a mutual interest dispute on behalf of all members, it was specifically made for the three employees. The applicant failed to produce any document speaking specifically to the three employees indicating the reason which was captured on their termination letters. Furthermore, since they started new employment with the respondent, no letter of appointment or contract of employment was submitted indicating the terms and conditions of this new employment. As the applicant alleged that the termination was not as a result of retirement, proof ought to have been provided for that. Although I had requested such information from the applicant, it did not come forth. The one who alleges must prove, therefore, all these documents ought to have been submitted by the applicant party in support of its claim.

37. Moreover, none of the employees testified as to what were the conditions of their re-appointment even though the applicant party was given an opportunity to call witnesses. In essence, the applicant party only made an opening statement and closing arguments. No evidence was led on the allegations made.

38. It is therefore my finding that the applicant failed to prove that there was an unfair labour practice committed against the three employees.

AWARD
39. The Applicant, NAPTOSA obo Gordon – Smith failed to prove that the respondent, Western Cape Department of Education committed an unfair labour practice.

40. The case is dismissed.
Signature:
Panelist: Zoliswa Taba