Panelist: Sally-Jean Pabst
Case No.: ELRC450-24/25EC
Date of Award: 20 November 2024

In the ARBITRATION between:

NAPTOSA obo GERBER, Mr Pieter Jacobus
(Union / Applicant)

and

EASTERN CAPE DEPARTMENT OF EDUCATION
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was referred for arbitration to the ELRC for enforcement of a Collective Agreement – failure by the Respondent to pay the Applicant part of a housing allowance allegedly entitled to in terms of a collective agreement PSCBC Resolution 7 of 2015 (the CA) as ratified by the ELRC Constitution.
2. The arbitration was conducted virtually, and video-recorded, via Teams – part-heard on 2 October 2024, and concluded on 8 November 2024.
3. The Applicant, Mr Pieter Gerber, was present and represented by Advocate Gavin Duncan Saayman, an official from NAPTOSA, a registered trade union.
4. The Respondent, the Department of Education of the Eastern Cape, was represented by Ms Annalie Slabbert, its Labour Relations Practitioner.
5. The arbitration process was video-recorded, and the parties each submitted into evidence a bundle of documents they respectively relied upon, to which all was agreed between the parties as being what it purports to be. The parties submitted verbal closing arguments at the conclusion of the arbitration.

ISSUE TO BE DECIDED

6. I am to determine whether the Applicant is entitled to back payment of a monthly balance to his housing allowance in terms of annual adjustments to this entitlement not allocated to him by the Respondent.
7. If the Applicant is entitled to said annual adjustments, I must calculate and award the balance of his housing allowance due to him by the Respondent for the period he claims.

BACKGROUND

8. The parties agreed that Mr Gerber is an HOD in the service of the Respondent at Bergsig Special School in Uitenhage. Also that since 1 July 2015 to date he has not been receiving an additional amount to his R900 monthly housing allowance (HA) into a special savings plan account know as an Individual Linked Savings Facility (ILSF). In fact no ILSF was created for the Applicant, as indicated by its omission from an allocated space on his payslip.

SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE

9. The Applicant Mr Gerber testified under oath that he is paid in terms of his evidenced payslip, every month on the 20th of the month. However, as his payslip shows, he receives only the R900, and nothing into an ILSF account, as the ILSF is entirely omitted from his payslip.
10. Mr Gerber wishes to claim R 59,892.76 in housing allowance in terms of collective agreement PSCBC Resolution 7 of 2015 (the CA) as ratified by the ELRC Constitution.
11. The Applicant testified to evidenced Circular No. 33 of 2022 in terms of his monthly entitlement to R1,200.00 – this being R300 more than the R900 he already received – from 1 July 2017.
12. In terms of this Circular, this amount of R1,200.00 was to increase based on the Consumer Price Index (CPI) – adjustments annually and effective from 1 July 2017 to date.
13. The Applicant testified that he became aware of the Respondent not having created an ILSF savings account for him when a colleague advised him that he was supposed to have the ILSF and its accumulated amount specified on his payslip.
14. After enquiries it was established that this ILSF was never created for him. Mr Gerber then lodged a grievance in terms of his claim, but this was not resolved to his satisfaction.
15. The Applicant accordingly wishes to be paid R59,892.76 – the difference between the amount of R900 he received monthly, and the increased amounts he alleges he was entitled to monthly, plus interest.
16. Advocate Saayman testified under oath in terms of the Applicant’s case, and set out the contents of the documents in evidence substantiating the Applicant’s claim, this including the Collective Agreement, the Circular and a letter from the Director General regarding implementation of the ILSF and entitlement to the allowance for employees who are renting rather than owning their homes.
17. The total amount was set out as calculated by the Applicant in his E1 ELRC Dispute Referral Form, as follows:

17.1. 1 July 2015 to 30 June 2017: R300.00 / month X 24 months = R7,200.00
17.2. 1 July 2017 to 30 June 2018: R376.00 / month X 12 months = R4,512.00
17.3. 1 July 2018 to 30 June 2019: R436.22 / month X 12 months = R5,234.64
17.4. 1 July 2019 to 30 June 2020: R498.35 / month X 12 months = R5,980.20
17.5. 1 July 2020 to 30 June 2021: R556.94 / month X 12 months = R6,683.28
17.6. 1 July 2021 to 30 June 2022: R600.07 / month X 12 months = R7,200.84
17.7. 1 July 2022 to 30 June 2023: R678.37 / month X 12 months = R8,140.44
17.8. 1 July 2023 to 30 June 2024: R791.38 / month X 12 months = R9,496.56
17.9. R7,200.00 + R4,512.00 + R5,234.64 + R5,980.20 + R6,683.28 + R7,200.84 + R8,140.44 + R9,496.56 = R 54,447.96

18. He further wishes for interest to be paid to him, at 10.5%, bringing his total claim to R59,892.76.

RESPONDENT’S EVIDENCE

19. The Respondent’s witness, Ms Rosalind Sas – Chief Accountant in the employ of the Respondent – that she is tasked with payment of the employees of the Respondent. Housing allowances is included.
20. She received the enquiry from the Ms Slabbert – the Respondent rep – and she investigated to establish his entitlement. She was under the impression that the Applicant is only entitled from 2022 onwards to the amounts he claims, this because he only provided the required paperwork in his application for his rental from 2022. She added that the employees who are home-owners have their housing allowances paid in full, whereas the employees who are renters have the amount additional to the R900 paid into an ILSF savings account. By default the Applicant received the R900 as every employee had before. The Respondent required from 1 July 2015 a signed contract in order to even pay the R900. That without this contract the Respondent has a right to even recover the payments of the R900’s from the Applicant – this disregarding the fact that many employees continued to receive the R900 after July 2015.
21. Ms Sas during cross examination was meticulously guided through the evidence in the Applicant’s bundle by Advocate Saayman. When taken through a letter penned by the Director-General dated 9 March 2016, ‘Implementation of Housing Allowance Adjustment for Employees in the Public Service Who Rent Homes (i.e. are Tennants)’, Ms Sas conceded to this having been an instruction which she had not received, but which finds applicability in this matter – particularly, that it indeed instructs her department to implement the adjustment to the Applicant’s housing allowance unconditionally.
22. The witness was taken through the breakdown of the annual increases as set out in the Applicant’s E1 Referral Form, and agreed with these amounts and subsequent increases from 2017. The system did not automatically rectify the amendment, but it is dealt with on a case to case basis rectified upon request from the employee to the HR department of the Respondent.
23. Ms Sas was taken through the calculated totals in the Applicant’s E1 Dispute Referral, and agreed these to be correct, however she retorted that the Respondent does not pay interest on outstanding amounts, to which Advocate Saayman conceded the Applicant will rather “claim that seperately, then”.
24. Ms Sas explained that, before this arbitration, she had not had knowledge of this document dated 2016 which instructs her department to proceed “to adjust the housing allowances of employees who rent homes as well as to implement the diversion of either portion or the whole of the housing allowance to the GEHS: ILSF.”
25. Ms Sas confirmed that the Respondent indeed does not require any additional or substantiating documentation for Mr Gerber to receive his full housing allowance, and back pay to this effect. Therefore the Applicant should have paid his full housing allowances in terms of the Collective Agreement, but the Respondent failed to effect the payments.

ANALYSIS OF EVIDENCE AND ARGUMENT

26. It became common cause between the parties during Ms Sas’ testimony that the Applicant is accordingly entitled to the full housing allowance without having to file substantiating proof of rental agreements with the Respondent for approval. The Respondent also confirms all evidence brought by the Applicant regarding his entitlement, and confirms the Respondent has to date failed to pay him his outstanding housing allowances to which he was entitled in terms of collective agreement PSCBC Resolution 7 of 2015 (the CA) as ratified by the ELRC Constitution.
27. I am in full agreement that the Applicant in this matter is entitled to the full housing allowance claimed from the Respondent, as set out by the Applicant in his E1 Referral, and supported by the Circular in evidence and also by the 2016-dated letter to all heads of national and provincial departments and provinsial administrations regarding ‘Implementation of Housing Allowance Adjustment for Employees in the Public Service Who Rent Homes (i.e. are Tennants)’ stating unequivocally that there is no requirement for additional documents to be submitted by Mr Gerber to have the adjustment implemented.
28. Regarding the claim to interest on the outstanding total, the Applicant elected not to, at this point in time, claim this.
29. The Collective Agreement supports Mr Gerber’s claim to only the R54,447.96 in back payment in terms of the late implementation of the additional housing allowance, and I award him this accordingly.

AWARD

30. The Respondent, the Department of Education of the Eastern Cape, failed to pay the Applicant, Mr Pieter Gerber, the full housing allowance he is entitled to for the period from the 1st of July 2015 to 30 June 2024.
31. The Department of Education of the Eastern Cape must pay Mr Mr Pieter Jacobus Gerber with persal number 51487608 the amount of R54,447.96, as set out in paragraph 17 supra, by no later than 15 December 2024.

Commissioner Sally-Jean Pabst
ELRC Arbitrator
ELRC Panelist