IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case Number ELRC297-25/26WC

In the matter between:

NICOLETTE DANIELS
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration was held on the Microsoft Teams virtual platform over numerous days (approximately 10) from 21 October 2025 to 31 July 2026. On at least two of these days the matter was postponed for medical reasons of one or other of the participants. The final day of the arbitration was 31 July 2026 and parties were afforded an opportunity to submit their closing arguments in writing by 7 August 2026. The applicant was granted an extension for the submission of her closing argument to 12 noon on 11 August 2026. The applicant submitted her closing g arguments at 20h18 on 11 August 2026. The arbitrator received the applicant’s closing argument in his email inbox at 10h18 on 12 August 2026. The issue date for the arbitration award is therefore 26 August 2026.
2. The applicant represented herself. The respondent was represented by Ms. V. Phillips, its senior labour relations officer and erstwhile assistant director and Ms. Bathgate, an assistant director represented the respondent.

THE ISSUE IN DISPUTE

3. I must decide whether the respondent had perpetrated unfair an labour practice (ULP) on the applicant in respect of benefits as provided for in S186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA).

THE BACKGROUND TO THE DISPUTE

4. The applicant worked for the respondent as an educator in the Department of Education – Northern Cape. In 2015 she was transferred to the Western Cape. She was dismissed on 30 November 2025. At the time of the referral of this dispute on 24 June 2025, the applicant was a PL1 educator at the Bosmansdam High School in Bothasig (hereinafter referred to as the school) with an income of R394,326.00 p.a.
5. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

6. Both parties submitted bundles of documents. The applicant testified under oath on her own behalf. The respondent called as witnesses who testified under oath Letitia Pillay(Pillay), an HR officer in the directorate service benefits, Jason Sabotker(Sabotker), an HR clerk in the directorate service benefits and Bernadette Catherine Tataw(Tataw), deputy director in the directorate service benefits.
7. The applicant contends that her matter is an ongoing unfair labour practice.
8. She contends that the respondent had perpetrated unfair labour practices in that it had forced her to pay her medical expenses in respect of COVID 19 which she had contracted at the school as she had through having contributed to her medical aid; her housing allowance; deduction of leave without pay without consent; interest on the various amounts.
9. The applicant’s contention is that these are benefits as an educator she is entitled to of which some were withheld and not paid out by the respondent.

The evidence for the applicant:

10. The applicant had been transferred to the respondent in January 2015. While employed at the Ned Doman High school and in April 2018 her service was broken when she had resigned and alleged a constructive dismissal.
11. Thereafter she had applied successfully for a position at the school This appointment should have been 1 July 2019 but for some unknown reason was 1 January 2020. Under cross examination she confirmed she had been appointed on a fixed term contract from 1 July 2019 to 31 December 2019.
12. When she had transferred to the respondent in 2015 on a permanent basis she had qualified for a housing allowance.
13. Under cross examination she testified that she had received the 37% top up in lieu of benefits while on contract (July to December 2019) and so did not qualify for the housing allowance but had applied for it when appointed in July 2019 while on the fixed term contract as she was under the impression that it was a permanent appointment.
14. She was however making this claim for the period 2020 to 2025 when she had been appointed permanently at the school.
15. She had applied for the housing allowance again when schools reopened in January 2020 as her legal representative, during a disciplinary enquiry in September 2019, had forced from the principal her appointment letter which was in his desk.
16. This second application for a housing loan had been done submitting all requisite documents for such application to the principal as all new appointees had done.
17. In July 2019 she got from the principal the acceptance of post, School Governing Body acceptance, housing allowance forms, criminal clearance certificate.
18. The provision from the vacancy list was that she would be permanent from 1 July 2019.
19. When the letter of appointment came from the principal through the disciplinary hearing the principal had asked her to complete new forms as the date of permanent appointment had changed to January 2020. That disciplinary hearing had ended in September 2020 when her benefits then started.
20. It is interesting to note that the applicant, having applied for the housing loan already in July 2019 had not queried not getting the allowance. As a consequence of her getting the 37% top up she probably knew and accepted that she was on a fixed term contract as a consequence, but nevertheless testified that this fact came to her attention only upon receipt of the fixed term contract in September 2019.
21. It is therefore not clear what it was that alerted the applicant to the fact that she was not getting the housing allowance and that had then had her apply therefor in January 2020.
22. In or after February 2021 the applicant had contracted the Delta variant of COVID 19. The applicant had lodged a formal complaint regarding the principal’s not taking appropriate steps regarding COVID 19 at the school and she herself had her fears regarding the disease which had already claimed the lives of some of her friends.
23. She was not aware of her having contracted COVID 19 at the time. The Persal system shows the respondent recognised her having COVID around 14 June 2021
24. She had made a protected disclosure to Debbie Shaefer in 2017.
25. In September 2019 she was subjected to a disciplinary hearing for dishonesty regarding a day’s leave and was acquitted. On 16 April 2018 she resigned where after she reapplied and was appointed in July 2019.
26. It was a contract position but because she thought it was a permanent position she submitted all her documents including the application for a housing allowance.
27. The principal had made copies of all her documents and placed them in her file.
28. The principal had asked her to re-submit her documents when she was appointed permanent in January 2020 as this had necessitated a change of date. Copies of her documents had again been placed on her file.
29. The applicant disputed the amount of R60,339.05 which the respondent indicated had been paid back to her in 2 amounts viz. in September 2023 of R19,839 and R40,500 in December 2023.
30. The amount the respondent must pay to the applicant is R134,445.32.
31. The amount reflected as the departmental debt in the letter at page 12 dated 1 September 2021 is R132,131.32 which is in respect of Leave without pay for 7 June 2017 to 30 June 2018.
32. She added to this the further amounts deducted unlawfully from her salary i.e. R1500.00 and R814.41. She put forward an amount R134,445.32
33. The applicant contends that the amount of R132,131.32 reflected as the departmental debt in the letter of 1 September 2021 is in respect of leave without pay from between 7 June 2017 to 30 June 2018.
34. There is still an amount of R1500.00 being deducted from her salary in respect of overpaid salary and she does not know what it is for.
35. The further testimony of the applicant is in respect of her challenging the amounts the respondent alleges it deducted from her salary and reimbursed her.
36. The leave without pay amounts were deducted in different periods the first of which is in 2017 to 2018.
37. The applicant had already in March 2021 lodged a grievance in respect of the unauthorrised deductions from her salary but which the respondent never addressed.
38. The reimbursement of money was done only after a visit to her home from officials from the respondent in June 2023.
39. Regarding the benefit in respect of TIL she disputed R60,339.05 which the respondent indicated was paid back her in 2 amounts September R19,839 and R40,500 in December 2023.
40. In March 2021 she had also lodged a grievance regarding unlawful deductions from her salary but the respondent had never dealt with this.
41. In January 2024 she received a notice to attend an enquiry on 7 February 2024 regarding her discharge for ill health incapacity.
42. Due to her recovering from surgery at the time, the enquiry was postponed to 16 and 17 April 2024. The respondent decided to withdraw from that enquiry before it got under way and was then again set down for September 2024.
43. This enquiry continued to April 2025 with the respondent calling more and more witnesses.
44. When she was about to present her case the respondent shocked everybody including the commissioner by withdrawing once more.
45. The respondent’s bundle shows evidence of systemic manipulation. She believes she had been targeted through this manipulation and fraud
46. During her testimony the applicant alluded to unlawful deductions from her salary in terms of Section 34 of the Basic Conditions of Employment Act.
47. At this point the applicant contended that the respondent owes her interest in respect of the amount of R60,339.05 already paid back and in the amount of R43,537.23
48. The applicant also testified that the respondent owes her an outstanding amount unlawfully deducted from her salary in the amount of R71,792.27 the balance remaining after deducting the amount of R60,339.05 from the amount of R132,131.32.
49. This is the debt the applicant contends the respondent informed her of in the letter dated 1 September 2021 of an outstanding debt in the amount of R132,131.31 incurred between 7 June 2017 and 30 June 2018 and regarding leave without pay.
50. The applicant testified that in relation to Section 34 of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA) she had not given her written consent for the deduction of moneys from her salary.
51. The applicant testified further in relation to S34 of the BCEA that there is no written agreement between the parties in terms of which such deduction may be made nor court order nor arbitration award in terms of which such deductions are authorised.
52. The further contention of the applicant is that in terms of her leave records only 2 days are reflected as unpaid leave days and therefore for the respondent to have deducted monies from her salary in respect thereof would have meant that her salary is in the region of R30,000 per day. This she testified was 72 times the reality.
53. The applicant therefore contends that the deductions made against her salary are a matter of self help by the respondent to her salary to the effect of unlawfully deducting numerous amounts of R1500 and R3000 from her salary unlawfully and without her permission.
54. The applicant contends this could be a criminal offence or fraud that could be subjected to a forensic audit enquiry.
55. Given the applicant’s testimony under oath at this stage, I questioned the nature of the dispute as one of an unfair labour practice, my view being that it was rather one in respect of S34 of the BCEA in respect of unlawful deductions from her salary.
56. The applicant referred to numerous extracts from her leave records which demonstrated how her leave was dealt with in respect of TIL and occupational disease.
57. Her last application for sick leave of any sort attributed to her being ill is 4 March 2025 to 28 March 2025 thereafter no more illness related applications.
58. Regarding the applicant’s claim in respect of Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) the evidence suggests that the issue arose upon the letter of acceptance of liability from the Department of Employment and Labour (DOEL) to the applicant dated 27 May 2025, in respect of which the DOEL accepts liability.
59. It had become an issue for the applicant as the letter refers to the liability of the employer which the applicant contends the employer is failing to meet. In this regard the evidence shows that the respondent accepts this liability.
60. Regarding her medical expenses the DOEL had instructed the respondent in the letter of May 2025 to pay her reasonable medical expenses which the respondent has failed to do. In doing so the respondent has also forced her to use her own medical aid for the medical expenses that ought to be dealt with in terms of COIDA and the respondent’s responsibility to pay such. As a consequence the applicant had not had the benefit of the quality medical attention she would have received in circumstances of medical expenses being covered under COIDA.

Evidence for the respondent:

61. The applicant’s housing benefit had been stopped when she resigned in 2018. Upon her return in 2019 the applicant had received the 37% as her appointment was on a fixed term contract.
62. When she was appointed permanently in 2020 she could be eligible for a housing allowance benefit.
63. The respondent does not have records of the applicant having submitted an application for a housing allowance.
64. There was no application for a housing allowance for 2020 on the applicant’s file and the respondent had requested that she submit her application.
65. There was also no rental application for 2020 on the applicant’s personnel file.
66. It was the first time that Pillay had seen the lessee agreement at page 130/5 of the applicant’s bundle of documents. The Persal system was a secure system used by government departments with supposedly no room for error.
67. Pillay testified with reference to n bumerous documents including salary advices and lease agreement of the applicant in confirmation of the applicants having received a housing allowance during the first employment relationship which had ended in 2018 when the applicant had resigned.
68. The overall testimony of Pillay in respect of the housing allowance was however that the respondent had not received an application for a housing allowance from the applicant for January 2020.
69. Had the applicant submitted a properly completed application for a housing allowance in 2020 she would have received the housing allowance.
70. The respondent had asked the applicant to resubmit her application for a housing allowance. Tataw had asked the applicant in 2024 to resend her emails pertaining to the housing allowance as none had been received from her.
71. Pillay and Gideon had gone to the school to check on the applicant’s personnel file to make sure there was an application for a housing allowance for January 2020 but had found that there was no application.
72. If the applicant is eligible for a housing allowance the respondent would pay upon receipt of the documents.
73. Other applicants had also contended this and have had their applications approved. The applicant was the only one not approved.
74. Sabotker testified that the applicant had submitted an application in respect of occupational disease on 15 June 2021.
75. After the respondent receives such application it ensures that all documents regarding such claim is in order, registers it and then submits it to the compensation fund.
76. The DOEL is then responsible for adjudicating the claim.
77. Even if liability has been accepted with the result in the letter 27 May 2025 but the respondent is subject to what the DOEL adjudicates. The respondent will therefore fulfil its liabilities upon receipt of the outcome from the DOEL.
78. The respondent does not dispute that the claim has been accepted but COIDA has 2 parts, which must be read together, and the respondent cannot action anything as it is subject to audit.
79. In the knowledge of Pillay it would not be fair for the applicant to use her medical aid to which she contributes 50% to pay for an occupational disease.
80. The respondent is responsible for the obligations arising in S73 of COIDA upon receipt of instructions from the DOEL.
81. Pillay’s duty is the administrative part. They will action once DOEL provides outcome or feedback.
82. Tataw confirmed in her testimony that when the applicant resigned in 2018 she had a debt that was in lieu of Temporary Incapacity Leave.
83. When the applicant was informed of the departmental debt in the letter of 12 September 2021 she wrote a letter objecting to leave without pay.
    When they were instructed by the finance department that the money could not be deducted at all the money that had already been deducted was reimbursed.
84. Currently there was no money due and payable to the applicant. The applicant’s first COIDA application had been rejected by the DOEL as all relevant documents were not included.
85. After all documents had been submitted the DOEL adjudicated the claim. It was approved for periods she submitted for the COIDA application.
86. While the claim is not finalised, Sabotker would check on its status weekly with the DOEL. The respondent would inform the applicant of the status of the claim even though that is the job of the DOEL.
87. Once the award is made by the DOEL the original is sent to the respondent as the claim is against Government Employees Pension Fund (GEPF). The respondent ensures that the DOEL gets all the documentation. The documents are uploaded in the GEPF for payment to the applicant.
88. The respondent was waiting on the outcome from the DOEL so that it can action it.
89. No interest had been paid on the R65,500.00 deducted and reimbursed. We put in the period and the system generates the amount.
90. Her applications were declined for TIL and consequently no interest was paid.
91. Regarding the claim in respect of COIDA the applicant had been adamant that the documents submitted with the first claim had to be used. There was however no clear exposure of COVID 19 demonstrated. It is always the responsibility of the employee to submit the proper documents.
92. In respect of injury on duty claims the respondent only does the uploading of documents while the commissioner does the assessment. The respondent sees only what they put on the system.
93. The respondent is guided by Dr. Bux, the assessor director for DOEL who deals with COIDA applications.
94. He advised that they change it to injury on duty (IOD) which they did once liability had been accepted on 27 May 2025.
95. As the DOEL has accepted liability it is a formality to process the applicant’s claim upon receipt of the award from the DOEL.
96. As the respondent is an agent for the DOEL the calculations are done by the DOEL and that must be implemented.
97. Tataw does not have to have knowledge of COIDA as that is the domain of the DOEL.
98. The respondent does pay an assessment fee into the compensation fund in order to be compliant.

ANALYSIS OF EVIDENCE AND ARGUMENT

99. This matter is one which concerns numerous allegations of unfair labour practice pertaining to benefits which the respondent had allegedly unfairly denied the applicant.
100. At the outset of proceedings these benefits were crystalised by the parties to be in respect of temporary incapacity leave, housing allowance, and benefits in respect of the COIDA.
101. It was also agreed between the parties that everything was an ongoing unfair labour practice as determined in a ruling by a commissioner at the conciliation of this dispute.
102. During the presentation of her case by the applicant and while she was testifying in respect of the temporary incapacity leave benefit it became apparent that this pertained to a claim in respect of this benefit allegedly having arisen in 2017 and 2018. Whether this then constitutes a valid claim in respect of an unfair labour practice pertaining to benefits in casu is questionable.
103. If it is this dispute that the applicant has referred then it is clear that the lateness of the referral would have to be condoned and that condonation be applied for.
104. It is to be noted that the applicant believes that the amount of R132.131.32 the departmental debt, is the amount the respondent owes her and therefore that the respondent still owes her with additional amounts the balance between that amount and the monies which it had deducted and paid back.
105. Still further in this regard the applicant questions the amount of R132.131.32 claiming that there is no indication of where this amount derives from.
106. My understanding is that this is the amount which the respondent alleges for the purposes of the quantum in the letter dated 1 September 2021, is what it had overpaid the applicant by in respect of the declined TIL in her salary in 2017/2018 and which it then started deducting in order to recover an overpayment of salary.
107. The respondent however did ultimately concede of its own accord that it was unlawful to deduct, hence the paying back to the applicant of the money deducted.
108. In a nutshell the applicant’s claim regarding deductions from her salary is that the employer has not acted fairly or in good faith to this commitment to restore the applicant’s benefit by way of repaying all the outstanding LWP and interest to date. This as from her jurisdictional submissions on this point requested by the commissioner during proceedings.
109. The evidence shows further that the applicant had demonstrated a penchant for alleging this amount to have been fraudulently run through the persal system.
110. The evidence shows that the applicant had rejected the notion that she ought to show through the presentation of her relevant payslips the amount of money unlawfully deducted from her salary. Instead the applicant preferred to pursue this claim with reference to leave without pay deductions gleaned from the persal system.
111. Hence my view that this is a matter rather of alleged unfair deductions from the applicant’s salary.
112. This represents a fundamental shift in the allegation of an unfair labour practice dispute pertaining to benefits. The applicant focuses on allegations of corruption, financial mismanagement and fraudulent activity allegedly perpetrated by the respondent.
113. While the applicant retracted this line of evidence and argument in the jurisdictional submissions in respect of whether this is a matter of deductions from salary or unfair labour practice requested by me and on the basis that the ELRC does not have the jurisdiction to deal with such claims of fraud and corruption, the evidence will show that she by and large continued therewith throughout the arbitration regardless.
114. While the termination of the employment relationship in 2018 does not extinguish a right to refer an unfair labour practice dispute it does break the ongoing nature of the unfair labour practice were one to exist in the first place. By logical deduction a quantified pecuniary claim arising from an unfair labour practice cannot persist after the end of the employment relationship. The quantum of such claim is curtailed by the termination of the employment relationship and the timeframe of the right to refer a dispute too.
115. On the other hand, the right to pursue the debt arising from it can be pursued as it would remain purely as a debt a creditor alleges the debtor owes.
116. This is then what the respondent pursues in its letter of 1 September 2021 alleging a departmental debt.
117. I am thus satisfied that this is not a matter of an unfair labour practice ongoing or otherwise but rather a dispute in respect of unlawful deductions from her salary, the cause of action of which arose on 1 September 2021 and with the first deduction from the applicant’s salary.
118. This distinguishes the applicant’s matter from that relied on by the applicant in SAPO Ltd v Kriek and others (P190/12) [2016] ZALCPE 12.
119. As this is an allegation of a debt in respect of which deductions are made in the new employment relationship the cause of action had to have arisen in the new employment relationship. It cannot be said to have arisen in respect of an ULP pertaining to benefits. Likewise the applicant cannot lodge a ULP relating to benefits without a referral referencing the previous employment relationship and without at the same time having to apply for condonation.
120. This can also not be said to be part of an ongoing ULP as there was not an ongoing employment relationship.
121. Were it possible, and I found that it is not, that the applicant could refer this as an ULP dispute, the applicant would in fact have to apply for condonation of a late referral, the cause of action and therefor the date of dispute having arisen on 1 September 2021. Not to do so, but to continue on the basis that condonation is not required, as ruled by the commissioner at conciliation, would infringe on the principle of legality.
122. The applicant can of course refer a dispute to the ELRC in respect of unlawful deductions as provided for in terms of S34 of the BCEA, to be determined in terms of the aforementioned clause 69 of the ELRC constitution.
123. Furthermore, the applicant in her submissions, has alluded to the alleged unfair labour practices she claims as part of her benefits dispute to be interlinked and inseparable.
124. This cannot clothe the ELRC with the jurisdiction to arbitrate the matter in respect of the alleged unlawful deductions from her salary.
125. The evidence then shows that the applicant had lodged a grievance already in March 2021 in respect of unlawful deductions from her salary
126. Notwithstanding the applicant’s extensive analysis and criticism of the respondent’s persal system, the fact of the matter is that the respondent had deducted an amount of money from the applicant’s salary which it had established on its own was unlawful and which it had then paid back to the applicant.
127. This aspect of the matter before me therefore in fact pertained to that of unlawful deductions from the applicant’s salary.
128. It was apparent that the alleged debt was in relation to the temporary incapacity leave granted to the applicant in 2017/2018 but which debt prevailed in respect rather of overpayment of salary than failing to pay a benefit after the conclusion of the erstwhile employment relationship when the applicant had resigned.
129. This was the situation at the point of the writing of the letter in respect of an alleged departmental debt, a debt that had arisen outside of the current employment relationship. Issues pertaining to such debts are ordinarily pursued in the civil courts and not in the LRA.
130. This debt had clearly arisen because salary had been paid to the applicant in circumstances where the persal system shows leave without pay, meaning that it should not have been paid but is coded 165 as TIL had been declined. The debt is thus in respect of an overpayment of salary, the origin of the alleged departmental debt.
131. The amount thus reflected in the letter regarding outstanding departmental debt which then was deducted to the extent of R60,339.05 was then paid back. This amount does not represent an amount not paid to the applicant but rather an amount which in fact had been paid to the applicant in her salary when she had taken the leave characterised in persal as leave without pay.
132. This of course does not pertain in respect of the claim for unlawful deductions grieved by the applicant.
133. When I deliberate upon the matter it however became clear to me that the ELRC constitution makes provision for such claims to be dealt with under the auspices of the ELRC in terms of clause 69 of its constitution.
134. Although this is not the dispute before me and which would require a fresh referral to thee ELRC in respect of a claim for unlawful deductions, the evidence shows that it is most likely that the deductions which the respondent had made were in fact reimbursed the applicant.
135. The fact of the matter however is that this is not an unfair labour practice dispute and accordingly falls to be dismissed for lack of jurisdiction.
136. After the applicant had again submitted revised calculations in respect of the debt owed as per the letter of 1 September 2021, the applicant chose to deal with her dispute in respect of the housing allowance.
137. During this time it became apparent that the issue pertaining to the housing allowance was unlikely an ongoing unfair labour practice.
138. The respondent’s alleged omission to grant a housing allowance has to be and is a single act which the applicant had to have been aware of when lodging an internal grievance in this regard already in 2021. The record shows this to have taken place in 2020.
139. In the light of the respondent’s defence being that the applicant had not made an application for a housing allowance means that the applicant would have likely also been aware already in 2020 of the fact that the respondent had not granted the housing allowance as the benefit would not have reflected on her salary advice.
140. I state here again that our courts have held that where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law. That would infringe the principle of legality.
141. The question whether the Applicant had to apply for condonation at all is a point of law.
142. I note here that I during proceedings had several times asked the applicant to make an application for condonation notwithstanding the ruling of the commissioner at conciliation.
143. The applicant had continuously refused to do so on the basis that it had already been dealt with, referencing in particular the ruling of the conciliating commissioner. The applicant insisted that she would deal with it in her closing arguments as it had already been dealt with.
144. My finding in respect of the housing allowance is that in this dispute the applicant contends a monthly amount repeatedly not paid to her constituting the continuous commission of an unfair labour practice, the so called ongoing unfair labour practice.
145. Our courts have held that a circumstance of such a nature does not constitute an ongoing unfair labour practice.
146. On the facts therefore I find that the applicant ought then to have referred a dispute of unfair labour practice regarding a housing allowance benefit for the latest probably by the end of 2020 already. A referral of an unfair labour practice thereafter regarding the housing allowance ought to have been with an application for condonation. It is to be noted that the applicant had in February 2025 likely been informed by one, Danniel Abrahams(Abrahams) that there was no such application on her file. Still the applicant had not resubmitted.
147. An application then citing that Tataw had in 2024 informed her not to as she was busy with it.
148. This had not been put to Tataw i.e. that she had informed the applicant not to resubmit as she was busy with it.
149. On a balance of probabilities it had to have been apparent to the applicant almost immediately given that no allowance at all had been paid to her.
150. The applicant most likely was aware of the fact that she was not getting the housing allowance already in January 2020 or soon thereafter, hence her lodging a grievance in this regard which continued through to the end of 2020 on the applicant’s testimony.
151. This not being an ongoing unfair labour practice renders the referral thereof late probably in excess of five years.
152. I raised with the parties the question of condonation notwithstanding that they had agreed that this was an ongoing unfair labour practice not requiring an application for condonation and as ruled by the conciliating commissioner.
153. It is clear that the issue in respect of the housing allowance would have arisen at least as early as 1 month into 2020 when the applicant would have become aware of the benefit not being paid. The applicant had testified that her benefits began on 1 January 2020.
154. The applicant most likely had become aware at the end of January 2020 of this benefit not being paid as it would likely not have reflected on her payslip.
155. The applicant would then have had 90 days from that point in time to refer a dispute of alleged unfair labour practice in respect of the housing benefit. That is when the applicant most likely had become aware of the fact that no housing benefit was being paid to her.
156. The applicant had also testified that she had not submitted a formal dispute in respect of the housing allowance as she had contracted Covid 19 and was unable to deal with such.
157. In this regard the evidence shows, for instance, the applicant interacting with the respondent’s Jason Fry and others in October 2023 which interaction culminated in a detailed claim i.a. for damages, loss of income, medical expenses and legal fees and which she submitted in December 2023.
158. The applicant therefore was capable of referring a formal dispute to the ELRC at that time already.
159. This can also not be said to be an ongoing unfair labour practice as the applicant had not been paid the benefit once off and with the ensuing consequences of it never being paid thereafter. It is when the applicant became aware of the fact that she was not receiving the benefit that constitutes the date of dispute of the alleged unfair labour practice which at best is then a reasonable period. It is from that date that the applicant has 90 days to refer her dispute in respect of the housing allowance to the ELRC.
160. The record shows that the applicant had referred her dispute on 24 June 2025 thereby rendering it late by more than 5 years, which is an unreasonably long time in the circumstances, and necessitating an application for condonation.
161. Our Courts have held that condonation should not be granted if the degree of lateness is so extremely excessive and that in such circumstances it does not matter even if the applicant has good prospects of success on the merits.
162. Condonation is sought primarily because of breaching the law by virtue of not adhering to stipulated time frames and is an indulgence.
163. The evidence however demonstrates that the applicant was capable at that time of preparing what appears to be an extensive claim notwithstanding her being off work and at home due to Covid. This is the time the applicant was already long overdue with the alleged unfair labour practice claim in respect of the housing allowance. It is to be noted that the applicant had most likely had legal advice in this matter as part of her aforesaid claim included one for legal fees.
164. In respect of the housing allowance issue the applicant clearly was in a position to launch a dispute in respect of the housing allowance.
165. Instead, the applicant then launched a referral to the ELRC only in June 2025 thereby making the referral late by in excess of 5 years. The applicant had not made an application for condonation.
166. The applicant has then brought an application for condonation in her closing arguments.
167. I furthermore believe that in respect of the applicant’s alleged unfair labour practice claim relating to COIDA that there is sufficient evidence before me in particular that presented by the applicant for me to render a determination on the point at this stage and without having to hear further evidence.
168. I must further point out that even in respect of a claim relating to benefits regarding medical expenses in terms of COIDA as alleged by the applicant that such a claim would in fact also be out of time given when it had arisen, viz. after the applicant had contracted the occupational disease in June 2021 with the respondent’s failing to pay such and other requisite benefits related to salary upon the applicant’s having contracted the disease.
169. In the absence of an application for condonation in which there would be an excessive delay such degree of lateness would suffice for a conclusion that condonation not be granted.
170. As with the applicant’s claim in respect of the temporary incapacity leave and housing allowance this would not be an ongoing unfair labour practice pertaining to benefits.
171. It was the contention of the applicant that the letter of acceptance of liability triggers S77(1) and (2) of COIDA, i.e. regarding medical aid contributions, S73 (1) and (2) regarding medical expenses, S68 (1), (2) and (3) notice of an offence, S66, S65 right to compensation and benefit, S61 (1), (2) and (3) recovery of compensation and benefits.
172. It becomes necessary to interpret this letter as to what in fact it means and what responsibilities attach to the respondent in relation to the applicant.
173. While this letter in fact does establish the liability of the respondent to pay the applicant’s salary and reasonable medical expenses it does not in fact stipulate time frames for the respondent’s actioning thereof.
174. Logic dictates that the respondent is able to pay the salary because this is a quantified amount and one with which the respondent is familiar as it has a system which executes on the payment of salary every month.
175. On the other hand, the computation of medical expenses is not a function with which the respondent deals at all.
176. The design of the computation of things medical in relation to claims in respect of injuries and diseases lies within the COIDA with the DOEL, as stated above, doing all of these for all employers contributing to the fund and in execution of its assessment functions.
177. I am therefore of the view and find that “reasonable” entails an element of discretion which element in these circumstances falls within the aforesaid expertise of the DOEL. It is correctly dealt with there and should be included in the final payment of the award of the compensation fund commissioner as executed on by the respondent.
178. The respondent remains liable for the payment thereof but in this manner i.e. submitting the claims in respect of medical costs to the DOEL as its expertise for purposes of calculations.
179. I must point out here that notwithstanding the ruling at the conciliation process that this matter is in its nature that of an ongoing unfair labour practice and that the issue of condonation does not apply it is the duty of the commissioner at arbitration to raise mero motu issues of such legality where they become apparent.
180. This becomes relevant when consideration is given to when the cause of action arose in respect of the issue around medical expenses sustained by the applicant.
181. The cause of action would have arisen upon the respondent’s refusal to pay the medical expenses incurred upon its being acknowledged that the applicant had contracted an occupational disease viz. on 15 June 2021.
182. In terms of an unfair labour practice dispute the applicant would have had 90 days from this date on to refer such a dispute to the ELRC.
183. The referral of the dispute in respect of medical expenses is therefore late and necessitated an application for condonation.
184. In arriving at my conclusion in respect of the degree of lateness sufficing to render these claims agreed to by the parties as the subject matter of this arbitration outside the jurisdiction of the ELRC, I find support therefor in the jurisprudence. I refer to the case of Nehawu obo Abraham Smith and the Department of Social Development (C61/2017) [2018] ZALCCT26 (1 August 2018 where this is precisely the conclusion that the Court comes to and because the delay in referring the dispute as late as the applicant had, thwarts the most fundamental purpose of dispute resolution under the LRA viz. the expeditious resolution of disputes.
185. It is to be noted that in the matter before me and notwithstanding the issue of the applicant’s COIDA application the result ultimately is that the claim is in respect of her occupational disease for its duration from 15 June 2021 and that it was expertly dealt with by Sabotker and Tataw on the second occasion of an application being referred to the compensation commissioner.
186. It is to be noted too that the unchallenged testimony of the respondent was that the applicant was adamant that the documents submitted with the first application were correct.
187. The evidence is that it was concluded that there was no clear exposure to COVID 19 demonstrated and hence the declining of that application. The further testimony for the respondent was that the responsibility for submitting the correct documents was always that of the employee.
188. While the argument of the applicant is that the first application had been done by the school principal without her knowledge the aforesaid evidence for the respondent is that there was nonetheless interaction between the respondent with the applicant in respect of the first application.
189. This would most likely have arisen in the circumstances in which Sabotker and Tataw had become involved and had assisted the applicant when the application had been submitted for the second time.
190. It is clear from Apollo Tyres South Africa Pty Ltd vs CCMA and others (DA1/11) [2013] ZALAC3 [2013] 5 BLLR 434 (LAC)ILJ 1120 (LAC)21 February 2013 that a benefit can arise ex lege ex contractu or a policy of the employer and therefore that disputes that arise from that may be referred to the CCMA and by implication in this matter, the ELRC.
191. Therefore the ELRC has the jurisdiction to arbitrate matters of this nature in circumstances where there does not exist any impediment thereto.
192. In casu there does exist the question of an application for condonation not made, the referral of the dispute having been out of time as explained above.
193. In this regard the application for condonation brought by the applicant in her closing argument does not persuade that condonation be granted as this matter is not of the nature of an ongoing or continuous unfair labour practice and the delay itself is extremely excessive and the explanation therefore thin and lacking in detail with the applicant referencing events and not accounting for all the time the applicant failed to refer the dispute.
194. The delay is in fact so extremely excessive that any prospects of success the applicant may have cannot overcome the disadvantage caused by the delay.
195. Notwithstanding, the prospects of success too, are not sufficient to warrant the granting of condonation were the delay acceptable.
196. Primarily, the case of the applicant regarding TIL is in fact a dispute pertaining to unlawful deductions from the applicant’s salary and therefore not within the ELRC jurisdiction as a dispute regarding an unfair labour practice. Were it an unfair labour practice the referral of it as such is out of time and without condonation.
197. The applicant’s claim regarding the housing allowance on the merits is rejected as the applicant has failed to prove that she had applied for a housing allowance and which is out of jurisdiction for having been referred out of time and without condonation having been granted.
198. The applicant’s claim for medical costs which is referred out of time is out of ELRC jurisdiction for no condonation of the late referral.
199. At arbitration proceedings on 31 July 2026 the evidence is that the applicant’s claim is finalised in terms of COIDA and the award is pending.
200. The applicant is aware of this final award by the compensation commissioner.
201. In her closing argument the applicant considers it the cut off point in respect of her claims in this matter.
202. The evidence in this arbitration suggests that the medical costs incurred by the applicant determined by the respondent as payable on receipt of this final award should now be paid to the applicant.
203. So, notwithstanding the applicant’s referral being out of the jurisdiction of the ELRC for lack of condonation of its being late, the applicant should now in any event be paid those medical costs.
204. Further in respect of an unfair labour practice relating to COIDA the evidence shows that the respondent had interacted with the DOEL fairly regularly following up on the state of the applicant’s claim.
205. This interaction is necessary as the respondent remains liable to pay the claim.
206. It is necessary as the DOEL is responsible for the assessment and determination in terms of quantum notwithstanding the respondent’s being self-insured. The respondent is then liable to pay the applicant the award.
207. On the final day of the arbitration proceedings evidence was led to the effect of the applicant’s claim in terms of COIDA having been finalised and consequently with the payment of the award imminent.
208. Had there been a punishable delay occasioned by the respondent in finalising this final award of the compensation commissioner it would constitute an unfair labour practice in terms of the S186 of the LRA.
209. I have however found no such delay attributable to the respondent and which could be said to be a manifestation of malice, capriciousness or negligence, or other reason that could be attributed to the conduct of the respondent that would render such conduct or omission an unfair labour practice.
210. The law however is clear in respect of the resolution of disputes under the LRA. It is, as our courts have repeatedly held, the most fundamental purpose of the LRA that labour disputes be dealt with expeditiously.
211. In her closing arguments the applicant has raised the question of malice as an unfair labour practice perpetrated by the respondent resulting in an unfair labour practice perpetrated on the applicant.
212. To this end the applicant alludes to the meeting with Jason Fry and others at her home during the course of which meeting corruption was manifest and threats of dismissal made.
213. In the evidence before me there is nothing which links that to the substantive issues forming the subject matter of this arbitration or the conduct of the employees involved therein.
214. Having considered all the evidence presented at this arbitration, I find the ELRC lacks the jurisdiction to arbitrate this matter in respect of the claims in respect of TIL and the housing allowance and the applicant’s claim in respect of medical expenses. This lack of jurisdiction is mainly as a consequence of the applicant having referred the dispute in these respects out of time and without condonation having been granted.
215. Having come to this conclusion there is no need for me to deal any further with the merits of this matter.
216. The applicant has included in her closing arguments at paragraph 19, allegations of misconduct and irregularities by me, the arbitrator, during the course of the arbitration proceedings
217. The applicant submits the Commissioner committed reviewable irregularities in terms of s145 LRA as follows:
218. Displayed bias, lacked knowledge of COIDA , and relied heavily on Respondent’s misleading evidence which caused jurisdictional confusion.
219. This allegation is denied. The allegations are vague and without merit and are rejected. The allegation of bias in particular is rejected. It is not a requirement for me to display my knowledge of COIDDA at arbitration proceedings. If necessary such knowledge is to be displayed in the arbitration award. This contention is in fact a preconceived notion of the abilities of commissioners in general and with which the applicant had entered into arbitration proceedings.
220. Regarding the contention of jurisdictional confusion this contention too is rejected. I do believe that the jurisdictional issues were raised by me mero motu and as discussed elsewhere in this analysis.
221. Gross irregularity in procedure -allowed coaching/leading of witness Tataw, let respondent dictate times and remove witness mid-cross, disregarded prior conciliation ruling, and refused recusal.
222. I cannot recall an application for my recusal and so reject this contention of the applicant.
223. The ruling of the commissioner at conciliation being rejected is dealt with elsewhere in this analysis and within the context of an application for condonation in circumstances where a commissioner is obliged to do so.
224. The applicant is put to the proof of the allegations regarding coaching. If this is accepted then probably it had no material bearing on the outcome of this matter. There is no allegation of where the alleged coaching occurred and how it prejudiced the applicant.
225. I do recall an interaction regarding an allegation of this nature where there was interaction between the respondent representative and Tataw but this on account only of there being one bundle of documents available to the respondent.
226. I must point out here that the applicant’s bundle of documents and the way she presented it and continuously added to and modified it did not contribute to the smooth running of the arbitration.
227. I was satisfied in real time that there was no coaching taking place.
228. With regard to loss of evidence and irrationality, she avers that there was lost recording of key session with Tataw’s admissions. Forced Applicant, a disabled person, to sit past set time till almost 6pm whilst unwell. Kept saying heard enough last few sessions to make an award while COIDA 72% matter was still ongoing.
229. This matter had been referred while the COIDA 72% matter, as the applicant calls it, was still ongoing. Perhaps the applicant avers she had therefore referred her dispute prematurely instead of waiting for the outcome in respect of her claim in terms of COIDA.
230. The record will show that the additional time taken was taken to around 17H30 mainly by the applicant herself with continuous objection despite my ruling on these objections and my ruling that we continue. The record will show that probably only 2 questions were asked by the applicant in this period, the applicant continuing with her objection regardless and taking up and wasting the time, which then contributed the most to the proceedings continuing to when it did.
231. Regarding the lost testimony the record will show that this occurred at the end of the particular day with the witness remaining on the stand on the next occasion when the opportunity was afforded the applicant to put the questions again and to make her averments too. The applicant failed or refused to participate in this exercise which was directed at resolving any issues she may have had in respect of the lost recordings. I am also of the view that the record will show that the applicant had herself made recordings of the arbitration proceedings which could have been used to assist in the curing of any difficulties that the applicant perceived of, may have arisen. The applicant was completely unhelpful in trying to cure the difficulty of the lost recordings which she had raised as an issue. I note that the applicant had also obtained recordings of proceedings from the ELRC on every occasion of set down.
232. The record will show that the main reason for the applicant’s objections was not related to her disability but rather to her wanting to attend another event.
233. I submit that while there may be a portion of recordings lost, there is nothing of the record lost. The record will show that the applicant failed or refused an opportunity to ask the questions again. The applicant hereafter cannot claim as the record, the record of the lost recordings. Further to this I do believe that the applicant had lists of questions extensively prepared and so likely would have known the questions she needed to ask.
234. The applicant has also averred that the lost recordings are of admissions made by the witness in question. Again this would not have been difficult to deal with in the manner suggested in order to cure the issue of the lost recordings.
235. The applicant could have made any averments she liked and all could have been dealt with within the record.
236. Through her own conduct the applicant has thwarted the completion of the record, which now must stand as the record.
237. Under dignity ad unfair treatment the applicant avers that the arbitrator was condescending, made snide remarks, entertained Respondent’s hostility, and told Applicant ” You can always go to LC on review if you don’t like it”.
238. If this last remark had been made it would have been made as a matter of fact probably during one of many interactions by the applicant with the commissioner in which she refused to accept the commissioner’s conduct of the process. I reject the suggestion of my making such a remark as a mark of arrogance or the like.
239. I submit that such a remark can easily be taken out of context in order to suit a particular mischievous end and that this is the case here.
240. I do however not wish to comment on the attitude of the applicant at the arbitration proceedings. The honourable court can come to any such conclusions itself.
241. The applicant’s averments of condescending remarks and snide comments is vague and denied and rejected.
242. Regarding proceeded under protest the applicant objected on record and stated she “proceeds under protest” after late session and loss of recording. The commissioner ignored this.
243. I do believe I have dealt with this above.
244. Under formal complaint, the applicant formally complained to ELRC regarding the above. The commissioner continued regardless. I am aware of the complaint coupled with the threat on the commissioner made by the applicant.
245. There were no grounds on which I should have recused myself. This was again the applicant manifesting an attitude based on the aforesaid preconceived notions she has of commissioners in general with which the applicant had entered arbitration proceedings.
246. Regarding her prayer that the applicant reserves all rights to review this award in terms of s145 LRA and S33 of the Constitution if the applicant does not like the award in this matter she can take it on review to the Labour Court as is her right.
247. I have come to my conclusion in this matter as expressed above.

AWARD:

248. The ELRC lacks the jurisdiction to arbitrate this matter. This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.

Name of Panelist

L.O. Martin

26 August 2026