29 June 2021 – ELRC719-20/21EC

Case Number: ELRC719-20/21 EC
Panelists: Malusi Mbuli
Date of Award: 24-06-2021

In the ARBITRATION between

SAOU obo WILLIE BOSHOFF & 8 OTHERS
(Applicant)

And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act No 66 of 1995 (“the Act”). It was set down for an arbitration hearing virtually at 09:00 on the 18th of June 2021.

2. The applicants, Mr. Willie Boshoff & 8 others attended the hearing remotely and were represented by Mrs. Venita Van Wyk and official of the applicant’s trade union SAOU. The respondent, Department of Health – Eastern Cape, also attended the hearing and was represented by Mrs. Annalise Slabbert an official of the respondent.

3. The matter proceeded on the 18th of June 2021, and was finalized on the same day with the parties dealing with evidence and arguments at the same time on record on the 18th of June 2021.

ISSUE TO BE DECIDED

4. I am required to determine whether or not the respondent has committed an unfair labour practice by failing to pay the applicants hostel allowance and if so, I must determine the appropriate remedy.

EVIDENCE

5. The facts in this dispute were common and were confirmed by the parties on record. It then follows that the arbitration hearing was recorded and the zoom record will form the record of this hearing.

COMMON CAUSE FACTS

6. That the Department of Education owe the 9 applicants listed below respective amounts for hostel allowance. Amounts owed to the respective employees:

– W. Boshoff = R53 479, 80.

– H. Wienand = R32 862,36

– P. Tandayi = R79 417,37

– J. H. C. Ver Meulen = R71 043, 46

– S. Du Preez = R65 724,72

– M. Bagshaw = R69 616,80

– J.M. Jooste = R44 349, 55

– H. T. Shaw = R39 907,80

– L. Dos Santos = R32 862, 36

ANALYSIS OF EVIDENCE AND ARGUMENT

7. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. Section 185 (2) provides that:

– no employee must be subjected to an unfair labour practice. The applicants feel that the employer has committed an unfair labour practice by failing to pay them hostel allowance.

8. As indicated above the in the topic dealing with common cause facts the parties are not in dispute on whether the respondent owe the applicants hostel allowance. The only issue that remains to be decided is when such allowance should be paid to the employees.

9. In terms of section 138 (9) of the Act a Commissioner may make any appropriate award including but not limited to, an award that inter alia gives effect to the provisions and primary objectives of the Act. It is clear from the evidence that has been adduced in the arbitration hearing that the hostel allowance claimed by the applicants is due and payable to them.

10. The respondent has committed an unfair labour practice by failing to pay the applicants hostel allowance and as such this constituted an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.

11. In the circumstances I make the following award.

AWARD

12. The respondent is ordered to hostel allowance to the 9 applicants as follows:

– W. Boshoff = R53 479,80.