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26 November 2024 – ELRC832-23/24GP

IN THE EDUCATION LABOUR LABOUR RELATIONS COUNCIL

Case No: ELRC832-23/24GP

In the Arbitration Proceedings between:

DIRK CORNELIA DU TOIT
APPLICANT

And

DEPARTMENT OF EDUCATION, GAUTENG PROVINCE RESPONDENT

Applicant’s representative: Annarike Fray (SAOU Official) Dirk Cornelia Du Toit
Respondent’s representative: George Mbonde (Labour Relations Manager) Department of Education: GP
PANELIST:
Ntjatja Klaas Aphane
HEARD:
21 October 2024
DELIVERED 22 November 2024

 ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

  1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair labour practices in relations to an unfair conduct by the employer relating to the provision of benefits to an employee- non-payment of acting allowances dispute between, Dirk Cornelia Du Toit, the Applicant and the Department of Basic Education: Gauteng Provincial Government.
  2. The dispute was referred to the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA). This dispute is about twelve (12) months acting HOD allowances, three months paid, and nine months not paid acting allowances.
  3. The arbitration was scheduled and on 28 May 2024 and 31 October 2024. The arbitration proceedings were held under the auspices of the ELRC in terms of section 186(2)(a) of the LRA. The arbitration proceeding was held 0n 28 May 2024 and 31 October 2024, virtually through zoom.
  4. The Applicant appeared in person, and he was represented by his SAOU representative, Surika Coetzee-Myburg, on 28 May 2024 and by Annarike Gray, on 31 October 2024, whilst the Respondent was present and represented by its employee, George Mbonde, Labour Relations Manager.
  5. The arbitration award is issued in terms of section 138 (7) of the LRA.
  6. The arbitration proceedings were digitally recorded and handwritten notes were taken.

THE ISSUES TO BE DECIDED:

  1. I am required to determine whether the Applicant is entitled to the payment of an acting allowances for nine months (9), when he was acting Departmental Head. THE BACKGROUND TO THE DISPUTE:
  2. The Applicant is an Educator at Rosslyn Primary school and was appointed as act as departmental head from 01 January 2023 to 31 December 2023. The Applicant was paid acting allowances from June 2023 to the end of August 2023. Three (3) months acting allowances paid and nine (9) months acting allowances outstanding.
  3. The Applicant referred the dispute to the ELRC, and the dispute was scheduled for arbitration on 28 May 2024 and 31 October 2024.
  4. The parties agreed to submit their respective bundles of documents to the ELRC and heads of arguments to the ELRC on 01 November 2024.
  5. The relief sought by the Applicant is the payment of departmental head acting allowances of nine months.

THE COMMON CAUSES FACTORS:

  1. Parties agreed that the Applicant acted as a departmental head for twelve months, and he was appointed by the Principal and School Governing Body (SGP). The Applicant was appointed in writing as an acting departmental head. The documents were submitted and processed for the payment of acting allowances from June to August 2023. The Applicant acted as departmental head from January 2023 to end December 2023. There was no communication of Memo 2 of 2023 and no mention of 26 July 2022 communication in respect of acting allowances.
  2. The Applicant submitted a grievance to the Respondent on 05 February 2024, to try and resolve the non-payment of the acting allowances dispute but failed to get positive outcome from the Respondent.
  3. On 31 October 2024, parties agreed that their resolve to resolve the dispute failed and agreed to submit bundle of documents and heads of argument on whether the Applicant is entitled to acting allowances for the outstanding nine months or not.

SURVEY OF EVIDENCE:

  1. I wish to state from the onset, that not all the evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE APPLICANT’S CASE:

  1. The Applicant’s representative submission was that the Applicant was appointed to act as a departmental head from January 2023 to end December 2023. Only three months of that acting stint was paid and nine months acting allowances still outstanding. This was common cause factor.
  2. The Principal submitted acting allowances documents dated 01 September 2023 to human resources official and the Assistant Director Human Resources acknowledged receipts of the acting allowances documents on 25 April 2024, for processing and payments,
  3. The Applicant was entitled to a monthly acting allowances of R2095,75 from January 2023 to end March 2023 and the total was R6287,25 for the first quarter of the year. The Applicant’s acting allowances from April 2023 to end May 2023 was R2164,75 and the total was R4329,50. The Applicants acting allowances from September 2023 to 31 December 2023 was R2197,50 and the total for that period is R8790,00. The total outstanding acting allowances for nine months and due to the Applicant was R19 406,75.
  4. All necessary documents were sent to the human resources management for processing and payment of acting allowances. The Respondent was aware of this dispute since January 2024 and nothing positive was done to resolve the dispute.

THE RESPONDENT’S CASE:

  1. The Respondent’s representative main submission was that the acting allowance was not sanction and approve by the Head of Department in line with departmental directives. There are two critical documents for considerations, i.e. Memo 2 of 2023 as well communique dated 26 July 2022.
  2. Those two documents set out protocols to be followed when appointing an employee to act in a higher role and the necessary approval that is required before appointment can be regard as compliant.
  3. The Applicant acting stint from January 2023 to end December 2023 was not approved by the Head of Department as required by the two communiques. Therefore, the Applicant was not entitled to be paid any acting allowances.
  4. The purposes of the two communique was to ensure that there is proper control, governance and good financial management

ANALYSIS OF EVIDENCE AND ARGUMENTS:

  1. In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedures, ELRC Resolution 8 of 2001 and relevant case law.
  2. Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
  3. There is no doubt that the Applicant complied with all necessary formalities, and acted in a higher role in compliance with the ELRC Resolution 8 of 2001 as well as chapter 4 of PAM. According to the Respondent, there are two more documents, Memo 2 of 2023 and communication dated 26 July 2022, from Head of Department, outlining requirements for acting in a higher role but the said documents were sent to the senior managers as well as human resources practitioners inclusive of the school principals. There is no conclusive evidence that all employees were made aware of those two communications.
  4. The grievance was submitted to human resources practitioner around 05 February 2024, who commitment to resolve the dispute internally from May 2024, and there was clearly indication that the Applicant is entitled to be paid his nine months acting allowances.
  5. The payment of the acting allowances in the workplace amount to provision of benefits in terms of section 186(2) of the LRA, and failure to pay such acting allowances amounted to unfair labour practice.
  6. It is equally disingenuous of the Respondent to pay acting allowances from June to end August 2023, and to plead strict adherence of Memo 2 of 2023 and communication from HOD dated 26 July 2022, with regards to outstanding nine months acting allowances, disregarding collective bargaining resolutions and legislation. Surely the two communications from Head of Department, are intended to ensure proper control and governance, but cannot trump over collective bargaining resolution and legislations.
  7. Therefore, the Respondent committed an unfair labour practice by failing to pay the Applicant, his acting allowances of nine months.
  8. The Applicant is entitled to the payment of his acting allowance, the amount of his acting allowances amounted to R19 406,75.

AWARD

In the premises, I make the following award

  1. The Applicant, Dirk Corneliuse Du Toit, has established that the Respondent committed an unfair labour practice by not paying his acting allowances of nine months.
  2. The Respondent, HOD, Department of Education: Gauteng, is ordered to pay the Applicant, Dirk Cornelius Du Toit, the amount of R19 406,75 (Nineteen thousand and four hundred and six rand and seventy-five cents) being the outstanding acting allowances for nine months in 2023.
  3. The payment of the amount referred to in paragraph 34 must be effected by paying the said amount into the Applicants’ bank accounts.
  4. The Respondent is ordered to pay the Applicant the amount referred to in paragraph 34 within fourteen days of receipts of this arbitration award but no later than the 10 December 2024.
  5. As provided for by section 143(2) of the Labour Relations Act 66 of 1996 as amended, any unpaid amount due in terms of this arbitration award will attract interest at the rate prescribed in terms of section 12 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due.
  6. Should the Respondent fail to comply with the above directive in the arbitration award, the Applicant is to approach the ELRC, Secretary of the Council, for the certification and enforcement of the arbitration award in terms of section 143(3) of the LRA.

Thus, done and signed at Pretoria, dated 22 November 2024.