IN THE ELRC ARBITRATION
BETWEEN:

THEMBA SHEZI Applicant
and
DEPARTMENT OF EDUCATION: KZN PROVINCE Respondent

ARBITRATION AWARD

Last date of arbitration: 04 November 2020
Certain written submission by both parties
Date of award: 03 December 2020

VUYOKAZI NGWENYA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was conducted via Zoom on 04 November 2020. The Applicant is Themba Shezi and he represented himself. The Respondent is the KwaZulu Natal Department of Education, District office: Umlazi represented by Mr Indran Pillay, who is the Deputy Director of Human Resources.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant is employed by the Respondent as a deputy principal at Masuku Primary School.

3. This is an unfair labour practice dispute; the Applicant is challenging the conduct of the Respondent in that it stopped the payment of an acting allowance.

PRELIMINARY ISSUES

4. Parties made statements in support of their respective cases.
5. As stated above, there was no face to face hearing. Given the fact that due to COVID-19 regulations, the matter had to be conducted via Zoom and parties were given more than enough time to submit written formal submissions and to reply (if needs be) after receiving each other’s written submissions. The award was drafted after all time frames given to parties had lapsed.

SUMMARY OF EVIDENCE AND ARGUMENTS

6. Applicant’s case
6.1 In essence, this is the Applicant’s case :
6.2 He was asked to act as a principal and the corresponding acting allowance was provided to him since August 2018.
6.3 Due to no fault of his own, there were disruptions at the school and the Department had to intervene.
6.4 He was given several instructions by the Department, which he obeyed faithfully.
6.5 The Department first asked him to remain at home and subsequently transferred him to another school. At a later stage it stopped his acting allowance.
6.6 He has not erred and is therefore entitled to receive what was agreed upon until the matter is resolved.

7. Respondent’s case

7.1 The Respondent’s representative stated the following:
7.2 The Applicant’s submissions are, by and large true, except that he is not entitled to receive an acting allowance after he ceased acting in the school principal’s position.
7.3 The concerned school is a very troubled one and the Department had to intervene.
7.4 During the course of the investigation, it became clear, that it would be best if the Applicant was temporarily transferred to another school.
7.5 Even though he stopped acting and was either asked to stay at home or at a later stage placed on a precautionary transfer, the Applicant continued to receive his acting allowance until January 2020.
7.6 Currently there is another official acting as the principal of Masuku Primary School.

SUMMARY OF ARGUMENTS

8. I wish to reiterate that this hearing was conducted via Zoom and parties were given an extra number of days to submit any written relevant information.

9. I received the Respondent’s written submissions on 21 November 2020. It was a very clear emphasis and repetition of what Pillay had already alluded to during the zoom hearing. However, I remain grateful to him, as the neat and clear sequence of events illustrated therein made my work a little easier.

ANALYSIS OF EVIDENCE AND ARGUMENT

10. I confirm that I have considered evidence presented by both parties.

11. It should be stated upfront that the Applicant’s right to refer his dispute to arbitration is a constitutional one. It is therefore respected, and the onus is on him to show that it has substance.

12. The Applicant does not deny that when the Department asked him to stay at home he continued to receive the acting allowance.

13. His only gripe is that the Department ‘closed the tap’ as it were, in January 2020. His claim before me is, in essence, ‘the tap must remain on because I did nothing wrong’.

14. One of the things, stated by the Applicant was that it was not his fault that the teachers were protesting against him and in response thereto, the Department had to ask him to stay at home. It seemed to me that there are other serious underlying issues but for purposes of this particular award I am confined to the non-payment of the acting allowance.

15. The simple way of explaining any contract of employment is that the employee renders his/her services and the employer pays for such. Where the employee is given additional tasks and there is a policy in place dealing with additional payments in respect of such tasks i.e. acting allowance, then the employee is, by all means, entitled to receive it for as long as he/she continues to act in that position. And so it happened in this particular case, the employer even continued to do so when the Applicant was asked to remain at home.

16. In order to attain some level of stability at this troubled school, the Applicant has been transferred to another. He argued, though that his transfer is, for all intents and purposes, an on the paper affair as he is not rendering any service except reporting for duty as expected. The Respondent’s representative did not dispute that. He further stated that there is another person who is now acting as a principal.

17. As a presiding officer, I have a duty to be fair to both parties. I have tried to understand the logic in the Applicant’s case. I have failed. The Applicant holds a position of authority that requires level headedness and a fair grasp of issues. Yet he came before me and boldly claimed what he is not entitled to receive. He did not dispute that he no longer physically acts as the principal, he also did not dispute that, for a while, he was not acting as such but the Department continued to pay him an acting allowance. Yet he has the audacity to claim that he should continue to receive such benefit even though he is not rendering the services. His salary and all his other benefits remained the same.

18. Even if there was no one acting in the principal‘s position, the Applicant’s claim is an empty one. It called into question his bona fides as an official who occupies a high position of authority. It made it clear that he does not have the interests of his employer at heart. How does one boldly claim for something he is not entitled to receive? Legally and logically, his claim is without merit, if anything at all, it reveals the level of entitlement and greed that some employees sadly possess.

19. Had the Applicant thought this through or perhaps sought sound advice from the Unions, I do believe that he would not have lodged such a baseless claim.

REMEDY

20. There is no remedy to be afforded to the Applicant for he has suffered no harm. The Respondent does not owe the Applicant any monies.

AWARD

21. The Applicant’s dispute referral is dismissed

VUYOKAZI NGWENYA
Arbitrator

PSES61-19/20 KZN
03 December 2020