In the matter between

Tana JN Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: A.W. Howden

HEARD: 22 August 2017

DATE OF AWARD: 28 August 2017

SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 33A – Enforcement of collective agreements by bargaining councils – ELRC Constitution Clause 69 – Enforcement of collective agreements and of Basic Conditions of Employment Act provisions – whether the Department of Education – Eastern Cape has contravened the provisions of Section 32 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA), in that the Department of Education has failed to pay the educator for a period of 14 months in which services were rendered by the educator.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. This matter was Set Down for Arbitration on 24 July 2017 and 22 August 2017 at the offices of the Department of Education – Eastern Cape in Queenstown.

2. The Applicant, Mr J Tana, was present and represented by Mr A Zozi from the attorney firm Zepe Attorneys.

3. The Respondent, Department of Education – Eastern Cape, was represented by Mr L Mvangeli (IR Officer).

4. The matter was originally referred as an unfair dismissal dispute referred to in section 186 (1) (a) of the Labour Relations Act 66 of 1995 (the LRA) i.e. a dispute about a termination of contract with or without notice. The parties however agreed that the real issue before the Council was breach of the Basic Conditions of Employment Act 75 of 1997 (the BCEA) relating to a failure to pay the applicant’s salary for services rendered.

ISSUES IN DISPUTE

5. I am required to determine whether the Respondent has contravened the provisions of section 32 of the BCEA, in that the Respondent has failed to pay the Applicant for a period of 14 months, in which period services were rendered by the Applicant.

BACKGROUND TO THE DISPUTE

6. The Applicant was employed by the Respondent as a temporary educator at the Siyaphakama Secondary School prior to the termination of his services.

7. The Applicant commenced his employment in this temporary position in January 2013 and was paid for the month. The Applicant however continued to work at the school for the whole of 2013, as well as the first two months of 2014, for which he has not been paid.

8. In February 2014 the Applicant was called in by the then principal and was informed his services were no longer needed as a temporary educator.

9. The Applicant requested that he be paid for the 14 months that he rendered services without being paid for it.

SURVEY OF EVIDENCE AND ARGUMENT

10. The following facts were common cause:
– The Applicant was employed by the Respondent prior to 2013 as a temporary educator.
– The Applicant was registered with SACE at the time.
– The Applicant had a valid Work Permit for the full period.
– A signed Attendance Register had been provided for the period 14 January 2013 to 11 October 2013 and the Applicant should be paid for this period. (Respondent was prepared to conclude a Settlement Agreement for this period).

11. The parties agreed that the issues in dispute were whether the Applicant was employed by the Respondent for the period 12 October 2013 to 28 February 2014, and whether the Applicant was entitled to payment for this period.

12. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

13. The Applicant gave evidence in support of his case and a summary of his version is set out hereunder:
– From August 2007 to December 2008 he was employed by the school’s SGB as an educator at the school.
– From 2009 to 2012 he was employed by the Respondent as a temporary educator at the school.
– Iin 2013 his employment at the school continued and that his employment was only terminated in February 2014.
– A permanently employed educator returned to the school in 2014 and the need for a temporary educator fell away.
– The applicant rendered services for the period January 2013 to February 2014 but was never paid for that period
– During this period the applicant performed his usual duties of teaching and assisting the school where necessary.
– The applicant’s version that the respondent employed him in 2012 was supported by an attendance register that he signed during the period 14 January 2013 to 11 October 2013.
– The applicant signed an attendance register for the full period but he could not find the attendance register for the period 14 January 2013 to 11 October 2013.
– Other attendance registers were available at the school and only the one for the period 12 October 2013 to 28 February 2014 that could not be found.
– The approached the current Principal, the school’s clerk and the school’s HoDs for assistance. They helped him search for the missing register but it was not found.
– On the day he was called in and informed his services were no longer needed, there was an SGB meeting taking place. The then Principal and two SGB members were present with members of staff.

14. The Applicant’s Representative produced an A4 size page of a diary dated Wednesday 26 February 2014. The document was allegedly the Minutes of the SGB meeting held on the day that the Applicant was called in and informed his services were no longer needed. The document was provisionally accepted and a copy was given to the Respondent and the original was handed in.

15. Under cross-questioning the Applicant confirmed the following;

– He attempted to get the attendance register for the period 12 October 2013 to 28 February 2014.
– He was only able to get hold of the minutes of the SGB meeting which was submitted as an exhibit.
– He found the minutes in the library, when he and the other staff members of the school were looking for the attendance register for the period 12 October 2013 to 28 February 2014.
– The minutes was authentic, as it contained issues discussed on the day, as well as what was relevant to him.
– He never attended SGB meetings and was not sure if minutes were stamped by the school or what else was done to make them authentic.

The Respondent’s Submissions

16. The Respondent disputed the authenticity of the minutes of the SGB meeting provided by the Applicant arguing that the minutes were not stamped by the school. The respondent’s representative further submitted that the Applicant should have called the author of the document as a witness, to prove it authenticity.

17. The Department was prepared to settle for the period January 2013 to 11 October 2013 as evidence was provided that the Applicant worked during that period. The Department objected to paying the Applicant for the period 12 October 2013 to 28 February 2014, as the Applicant was not able to provide any evidence that he worked during this period.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. Clause 68 of the Councils Constitution – Dispute Resolution Procedures, provides that a party to a dispute about the interpretation or application, or non-compliance of a collective agreement including the provisions of the BCEA, may refer such dispute to the Council for conciliation and arbitration.
19. Clause 69.1 also provides that the General Secretary may promote, monitor and enforce compliance with any collective agreement of the Council in terms of this section 33 and section 33A of the Act.
20. Clause 69.2 provides that a collective agreement of the Council is deemed to include:
• Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the collective agreement in terms of section 49(1) of the BCEA (Clause 69.2.10); and
• Subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee’s employer is a party to the Council (Clause 69.2.2);
21. Clause 69.3 provides that where the General Secretary acts in terms of clause 69, and the matter also involves the interpretation or application of a collective agreement, clause 24 applies to the exclusion of clause 8.
22. Clause 69.5 further provides that the General Secretary may on his own or on the request of a party refer any unresolved dispute concerning compliance with any provision of a collective agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be.
23. Clause 69.6 also provides that a panellist, conducting arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a commissioner in terms of section 142 of the Act, read with the changes required by the context.
24. Clause 69.7 provides that Section 138 of the Act, read with the changes required by the context, applies to any arbitration conducted in terms of this section.

25. It was common cause between the parties that the applicant worked for the respondent during the period January 2013 to 11 October 2013.

26. The Applicant has made concerted efforts to search for a copy of the Attendance Register for the period 12 October 2013 to 28 February 2014. He could not find it.

27. The Respondent has readily accepted that the Applicant was employed for the period January 2013 to 11 October 2013 and is prepared to pay the Applicant for this period. The Respondent however argued that the Applicant had to provide evidence (the Attendance Register) to prove that he was employed during the period 12 October 2013 to 28 February 2014.

28. Section 31 (1) (b) of the BCEA states “Every employer must keep a record containing the time worked by each employee”. This implies that is the employer’s responsibility by law to keep records; namely Attendance Registers recording the attendance of all staff members. The Attendance Register for the period 12 October 2013 to 28 February 2014, if it was available, would have proved whether or not the Applicant was not at the school during this period.

29. Section 31 (2) of the BCEA further states “A record in terms of subsection (1) must be kept by the employer for a period of three years from the date of the last entry in the record”. It is noted that this period has expired. However this dispute was referred prior to the expiry date, and the Respondent should have ensured that the relevant information remained available for the duration of the dispute even if it was standard practice to remove and destroy such records after three years. It does not seem to have been the practice at the school as the Applicant testified to the fact that all other Attendance Registers were still available at the school.

30. The Respondent was directed, on record, on 14 July 2017 to provide the relevant Attendance Register and the matter was adjourned on the day.

31. Considering the attempts made by the Applicant to secure the Attendance Register for the period 12 October 2013 to 28 February 2014, the unexplained disappearance of the specific Attendance Register for the period 12 October 2013 to 28 February 2014, and the Respondent’s failure to provide the Attendance Register when instructed, an inference that can be drawn is that someone attempted to prevent the applicant finding documentary evidence that would assist him to prove his case.

32. The Respondent failed to provide any evidence proving that the Applicant did not work during the period 12 October 2013 to 28 February 2014. Besides contesting the authenticity of the minutes of the SGB meeting and arguing that the Applicant had not provided evidence (the Attendance Register) proving that he had been employed during the relevant period, the Respondent did not disprove the Applicant’s evidence in any significant way.

33. Initially the Respondent also denied liability to pay the applicant for the period January 2013 to 11 October 2013. The Respondent changed its attitude when the Attendance Register for the period January 2013 to 11 October 2013 was made available. It is more probable than not the Applicant also work the period 12 October 2013 to 28 February 2014 and the Respondent denied this merely the Attendance Register for that period could not be found.

34. The evidence proved on a balance of probabilities that the Applicant was employed by the Respondent for the period 12 October 2013 to 28 February 2014, and that the Applicant is entitled to payment also for this period. The Respondent therefore has contravened the provisions of Section 32 of the BCEA, by failing to pay the Applicant for a period of 14 months, during which period services were rendered by the Applicant.

AWARD

35. The Respondent, Department of Education – Eastern Cape, has contravened the provisions of Section 32 of the BCEA, by failing to pay the Applicant, J Tana, for a period of 14 months, during which period services were rendered by the Applicant, J Tana.

36. The Respondent, Department of Education – Eastern Cape, is hereby ordered to pay the Applicant, J Tana, the amount of R130 207.54. (R6 454.00 x 3 for the period 1/01/2013 to 31/03/2013, plus R6 880.00 x 11 for the period 1/04/2013 to 28 February 2014, plus 37% payment in lieu of benefits).

37. The payment mentioned in paragraph 36 above must be made by the Respondent, the Department of Education – Eastern Cape, to the Applicant, J Tana, by no later than 29 September 2017.

38. There is no order as to costs.

Panellist: AW Howden
ELRCc