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27 November 2025 -ELRC562-25/26EC

Panellist: Khuduga Tlale
Case Reference No.: ELRC562-25/26EC
Date of award: 26 November 2025

In the matter between:

SAOU obo van der Merwe, Michiel Johannes Applicant

And

Department of Education – Eastern Cape Respondent

ARBITRATION AWARD

Details of hearing and representation

  1. The arbitration hearing between SAOU obo van der Merwe, Michiel Johannes (“the Applicant”), and Department of Education – Eastern Cape (“the Respondent”) was held on 07 November 2025 through Microsoft Teams. The applicant appeared in person, and Ms. Debbie Harvey, Provincial Secretary, represented him. Mr. Galliot Sigojo, Acting CES: Employee Relations, represented the respondent.
  2. This proceeding was manually, and digitally recorded. The parties agreed to submit written heads of argument on Friday, 14 November 2025.

Issue to be decided

  1. The issue to be decided is whether the alleged failure of the respondent to pay the applicant an acting allowance for the period 13 February 2022 to 31 March 2022, 01 October 2022 to 31 December 2022, 01 January 2023 to 31 March 2023, 01 October 2023 to 31 December 2023, and 01 January 2024 to 21 July 2025, constituted a benefit in terms of section 186(2)(a) of the Labour Relations Act, as amended (“the Act”).
  2. In determining the abovementioned, I must establish whether the respondent committed an unfair labour practice within the context of section 186(2)(a) of the Act. Background to the dispute
  3. This is a dispute brought in terms of section 186(2)(a) of the Act relating to the provision of benefits to the employee, referred by the applicant to the Education Labour Relations Council (“the Council”) for arbitration. The applicant referred this dispute to the Council, where it remained unresolved at conciliation. A certificate of non-resolution was issued, and the dispute was then referred for an arbitration. The applicant party submitted a bundle of document, marked bundle “A”.

Survey of evidence

APPLICANT’S EVIDENCE

First Witness: Mr. Michiel Johannes van der Merwe

  1. The witness testified under oath that he was the applicant in this matter. He acted as the school principal because the principal left on 11 February 2022 as per “A35”. He was the head of department at the school, and the second in charge. He was added on WhatsApp group for circuit 1, as the acting principal as per “A33”.
  2. Document “A58” was the acting letter for the period 01 April 2023 to 29 September 2023, and he was paid the acting allowance. Document “A98” was the proof of payment from the respondent. The principal position was vacant from February 2022 to June 2025. The respondent appointed the new principal in July 2025.
  3. Under cross-examination, he stated that he claimed an acting allowance for the period February 2022 to March 2022, October 2022 to December 2022, January 2023 to March 2023, November 2023 to December 2023, and January 2024 to July 2025. The respondent paid his acting allowance for the period 01 April 2022 to 30 September 2022 and 01 April 2023 to 31 October 2023. He was appointed in writing to act for the period 01 April 2023 to 29 September 2023.
  4. He was the only head of department at the school, and he assumed that he was the second in charge. He was aware that the school governing body must recommend, and the respondent must approve. He did not ask the circuit manager about the acting position. He maintained that he acted from February 2022 to July 2025 with the knowledge of the circuit manager.
  5. Under re-examination, he stated that he thought it was his responsibility to act in the absence of the principal. The respondent made a commitment that they would pay his acting allowance on 19 January 2024.
  6. Under clarity questions, he stated that the school parents chased away the principal on 12 February 2022. The principal submitted the sick note to the respondent. The circuit manager said that the principal was on an incapacity leave. The principal was paid his monthly salary from February 2022 to 31 December 2024. He wanted the respondent to pay his acting allowance because he rendered the service. The principal was transferred to another school at the beginning of January 2025. From January 2025, the principal position became vacant and it was advertised. He was not appointed in writing to act for the period January 2025 to 21 July 2025.
  7. He had no knowledge whether or not the principal was on a sick leave. He was appointed in writing to act for the period 01 April 2023 to 29 September 2023, and he was paid. The respondent paid his acting allowance for the period 04 April 2022 to 30 September 2022 and October 2023, even though he was not appointed in writing. He stated that he was not familiar with the acting allowance policy. He maintained that he wanted to be paid the acting allowance because he rendered the service of the principal position for the period February 2022 to 21 July 2025. RESPONDENT’S EVIDENCE
  8. The respondent’s representative stated that he was not going to lead evidence. The respondent’s representative was cautioned about his decision, and its implication, but he maintained that he was not going to lead any evidence.

Survey of Argument

APPLICANT’S ARGUMENT
  1. The applicant’s representative submitted that it is the negligence of the respondent to act timeously and in consistent with the relevant regulations, and that the negligence to inform him accordingly, cannot now be upheld as valid and reasonable excuses in order for the respondent to avoid its lawful obligation to remunerate the applicant for his services rendered. It is extremely unjust and unfair. The applicant is employed as the departmental head of the school and acted in the post of the principal which is higher than his current position. The principal position is a higher vacant and funded post, and the acting period exceeded 6 weeks. The principal vacated his position on 22 February 2022 never to return to the school.
  2. The provisions as found in Chapter 4 of Personnel Administrative Measures (“PAM”), are found in the ELRC Resolution 8 of 2001 with the title Payment of Acting Allowance for an Educator Acting in a Higher Vacant and Funded Post. The following provisions are found in Annexure A of the said Resolution. An educator with the minimum requirements in paragraph 2 of Chapter B of the PAM shall be appointed, in writing, by the employer, to act. An educator may only be appointed to act in a higher vacant and funded post that is one post level higher than his/her current position. Within fourteen (14) days of notification by the employer, a school governing body/council shall be requested to recommend to the employer, the educator to be appointed to act in a higher vacant and funded post. The applicant complied with the minimum requirements for the acting position.
  3. At no point in time did the respondent communicate the alleged requirement and risk to the applicant in order to educate and enable him to make the decision on whether he will take on the acting position and the numerous additional duties, risks and responsibilities attached thereto, with the risk of not being remunerated accordingly. It is the applicant’s submission that he was placed in this unfair and unjust situation due to the utter negligence of the respondent’s officials as they did not fulfil their ethical and work obligations. That the applicant indeed acted in the principal’s position and is entitled to be paid an acting allowance.

RESPONDENT’S ARGUMENT

  1. The respondent’s representative submitted that the applicant knew that there are procedures to be followed for an employee to act and be paid an acting allowance. The applicant was not appointed to act in the principal’s position for the period he claimed. Analysis of evidence and arguments

Introduction

  1. Section 186(2)(a) of the Act, states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to benefits to an employee.

  1. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of Section 186(2) of the Act rests on the applicant. The applicant had to show that his complaint was justifiable under what constitutes a benefit as contemplated by the unfair labour practice jurisdiction in terms of the Act. The applicant must therefore be able to lay the evidentiary foundation for his claim of an unfair labour practice.
  2. This dispute relates to non-payment of an acting allowance. In Apollo Tyres South Africa (Pty) Ltd v CCMA and others (DA 1/11) (2013) ZALAC 3; (2013) 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (handed down on 21 February 2013), the Court held the definition of benefit, as contemplated in section 186(2)(a) of the LRA was not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
  3. Per Apollo, a benefit is something extra to remuneration granted at the employer’s discretion. The question that need to be ask is whether an acting allowance is a benefit? An acting allowance is a privilege to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion. The Minister of Basic Education published the revised PAM in Government Gazette no. 39684 on 12 February 2016. The acting allowance is granted by the respondent in terms of Chapter C.4 of PAM. This dispute falls within the definition of a benefit in terms of Section 186(2)(a) of the Act. Whether the Applicant was appointed?
  4. Chapter C.4.1.2 of PAM states that an educator, complying with the minimum requirements in paragraph B3.2 of Chapter B, must be appointed in writing by the employer to act. The question that needs to be asked is whether the applicant was appointed to act? It is the applicant’s version that he was the second in charge at the school in the principal’s absence. The applicant confirmed that he was not appointed to act in writing for the period 13 February 2022 to 31 March 2022, 01 October 2022 to 31 December 2022, 01 January 2023 to 31 March 2023, 01 October 2023 to 31 December 2023, and 01 January 2024 to 21 July 2025. He further testified that he rendered the principal’s duties, and the respondent must pay his acting allowance. Based on the evidence presented, the applicant was not appointed to act in writing by the respondent for the claimed period. Whether the incumbent was sick?
  5. It is the applicant’s evidence that the incumbent of the post was on incapacity leave. Chapter C.4.3.1of PAM states that an acting allowance will only be paid to an educator who acts for a period longer than twelve (12) weeks, but limited to a maximum of twelve months. The acting allowance will be paid only to an educator who acts in such a post where the permanent incumbent is absent due to the following:
    • Maternity leave
    • Sick leave
    • Study leave
    • Suspension
    • Secondment
  6. It is the applicant’s version that the incumbent was chased away from the school by the parents, and he took over as the second in charge. The applicant failed to substantiate his claim that the incumbent was on incapacity leave for the claimed period. Whether the applicant is entitled for payment?
  7. The question that needs to be asked is whether the applicant is entitled to be paid an acting allowance? It is clear that the applicant was not appointed to act in writing by the respondent for the claimed period, therefore, he is not entitled to be paid an acting allowance. Conclusion
  8. In these circumstances, I find the applicant had failed to substantiate his claims that he was subjected to an unfair conduct by the respondent in relation to benefits. Award
  9. The applicant’s, Mr. Michiel Johannes van der Merwe, has failed to prove that the respondent has committed an unfair labour practice in terms of Section 186(2)(a) of the Act, in relation to benefits.
  10. The application is dismissed.

Signature:

Commissioner: Khuduga Tlale
Sector: Education