In the matter between
SAOU obo AW Zeelie and 1 other Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 26 October 2021
DATE OF AWARD: 27 October 2021
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 ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Department of Education – Eastern Cape has failed to pay out the educator’s leave gratuity – whether the Department of Education – Eastern Cape has contravened the provisions of PSCBC Resolution 3 of 19999 (PAM Chapter E) in that the Department of Education – Eastern Cape has failed to pay out the educator’s pro-rata bonus.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 69.5 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (As amended). The Virtual Arbitration hearing was held on 26 October 2021 via Zoom.
2. The Applicants, Ms AW Zeelie – Persal Number 50120913 and Mr A Slabbert – Persal Number 51456281, were present and were represented by Ms S De Brugge from the Suid Afrikaanse Onderwys Unie (SAOU).
3. The Respondent, Department of Education – Eastern Cape, was represented by Mr E Hector from the Labour Relations Department.
ISSUES IN DISPUTE
4. I am required to determine whether the Respondent contravened the provisions of ELRC Resolution 7 of 2001 (PAM Chapter H) in that the Respondent has failed to pay out the Applicants’ leave gratuity and if the Respondent has contravened the provisions of Resolution 7 of 2001 (PAM Chapter H) order payment of the Applicants’ leave gratuity, and whether the Respondent has contravened the provisions of PSCBC Resolution 3 of 1999 (PAM Chapter E) in that the Respondent has failed to pay out the Applicants’ pro-rata bonus and if the Respondent has contravened the provisions of PSCBC Resolution 3 of 1999 (PAM Chapter E) order payment of the Applicants’ pro-rata bonus.
BACKGROUND TO THE DISPUTE
5. The Applicant, AW Zeelie, was previously employed by the Respondent as a Post Level 1 Educator at Humansdorp Senior Secondary School in Humansdorp and went on retirement on 31 December 2020. The Applicant has received her pension, however has still not been paid her leave gratuity.
6. The Applicant, AW Zeelie, seeks to have the leave gratuity paid out by the Respondent.
7. The Applicant, A Slabbert, was previously employed by the Respondent as a Principal at Hankey Primary School in Hankey and went on retirement on 28 February 2021. The Applicant has received his pension, however has still not been paid his leave gratuity and pro-rata bonus.
8. The Applicant, A Slabbert, seeks to have the leave gratuity as well as the pro-rata bonus paid out by the Respondent.
9. Both parties submitted bundles of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
SURVEY OF EVIDENCE AND ARGUMENT
10. It is common cause between the parties:
AW Zeelie
– That the Applicant retired on 31 December 2020.
– That the Applicant was employed by the Respondent as a Post level 1 Educator at Humansdorp Senior Secondary School.
– That the Applicant’s monthly salary was R36 916.25 at the time of retirement.
– That the Applicant had 19.28 days capped leave. (Audited).
– That the Applicant had received her pension.
– That the Applicant had received no payment as yet for her capped leave.
A Slabbert
– That the Applicant retired on 28 February 2021.
– That the Applicant was employed by the Respondent as a Principal at Hankey Primary School.
– That the Applicant’s monthly salary was R41 805.00 at the time of retirement.
– That the Applicant had 108.20 days capped leave on his last payslip. (The Respondent had still not audited the Applicant’s leave file).
– That the Applicant had received his pension.
– That the Applicant still needed to receive a pro-rata bonus as confirmed in the Notice of Retirement Letter.
– That the Applicant’s birthday was on 6 October 2020 and was entitled to 4 month’s pro-rata bonus.
– That the Applicant had not received payment as yet for the capped leave or pro-rata bonus.
– That all internal avenues have been exhausted to attempt to resolve the issues.
– That the Respondent’s Representative was in agreement that the Applicants must be paid their capped leave and Slabbert his pro-rata bonus.
The Applicant’s Submissions
11. The Applicants’ Representative requested that the capped leave and pro-rata bonus be paid out to the Applicants.
The Respondent’s Submissions
12. The Respondent’s Representative stated that the Respondent did not dispute the fact that the Applicants needed to be paid their leave gratuity and Slabbert his pro-rata bonus.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
13. It is common cause between the parties that the Applicants’ leave gratuity needed to be paid out by the Respondent.
14. Resolution 7 of 2001 Annexure A, Chapter F Paragraph 5.2 clearly states that:
The payouts in respect of such leave credits shall be made in the event of:
5.2.1 Death
5.2.2 Retirement, including early retirement or
5.2.3 Medical boarding
15. These same conditions for payout of leave credits are stated in the Personnel Administrative Measure (PAM) document Chapter H Paragraph H.4.5.3.
16. This principle was instilled by the Basic Conditions of Employment Act No 75 of 1997 (BCEA) Section 40 (b), which clearly states:
Payments on Termination
On termination of employment, an employer must pay an employee –
(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken.
17. It is common cause that the Applicant, AW Zeelie, has 19.28 days capped leave due to her.
18. The amount due to the Applicant, AW Zeelie, for her leave gratuity is:
Gross Salary per month R36 916.25 ÷ 4.33 = R8 525.69 per week ÷ 5 days work week = R1 705.14 per day.
R1 705.14 per day X 19.28 days accrued leave = R32 875.09
19. According to the Applicant, A Slabbert, his last available payslip had 108.20 days leave gratuity accrued. After some 8 months the Respondent is still not in a position to pay the Applicant his capped leave and had not even attempted to audit the Applicant’s leave file.
20. The Applicant’s payslip (September 2020) is a document issued by the Respondent and contains the relevant information which for all intentions and purposes should be correct and I do not see why this matter cannot be finalized on the days indicated on the payslip.
21. The amount due to the Applicant, A Slabbert, for his leave gratuity is:
Gross Salary per month R41 805.00 ÷ 4.33 = R9 654.73 per week ÷ 5 days work week = R1 930.95 per day.
R1 930.95 per day X 108.20 days accrued leave = R208 928.79
22. It is my finding based on the above submissions that the Respondent has contravened Resolution 7 of 2001 by failing to pay out the Applicants their leave gratuity. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicants their leave gratuity.
23. It is common cause, as well as a common practice within the Department of Education to pay an educator a pro-rata service bonus should the educator’s services be terminated prior to their birthday month. Hence the Respondent not disputing this claim.
24. The amount due to the Applicant, A Slabbert, for his pro-rata bonus is:
Gross Salary per month R41 805.00 ÷ 12 months = R3 483.75 X 4 months = R13 935.00
25. It is further my finding that by failing to pay out the Applicant’s pro-rata service bonus, the Respondent has not complied with PAM Chapter E paragraph 2.3.5. I believe the appropriate relief would be to instruct the Respondent to pay out the Applicant’s pro-rata service bonus.
AWARD
26. The Respondent, Department of Education – Eastern Cape, is hereby instructed to pay the Applicant, AW Zeelie – Persal Number 50120913, the amount of R32 875.09 (Thirty Two Thousand Eight Hundred and Seventy Five Rand and Nine Cents) less PAYE.
27. The Respondent, Department of Education – Eastern Cape, is hereby instructed to pay the Applicant, A Slabbert – Persal Number 51456281, the amount of R222 863.79 (Two Hundred and Twenty Two Thousand Eight Hundred and Sixty Three Rand and Seventy Nine Cents) less PAYE, being the amount as calculated in paragraph (21) above plus the amount as calculated in paragraph (24) above.
28. The payment mentioned in paragraph (26) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, AW Zeelie – Persal Number 50120913, must be done by no later than 30 November 2021.
29. The payment mentioned in paragraph (27) above by the Respondent, Department of Education – Eastern Cape, to the Applicant, A Slabbert – Persal Number 51456281 must be done by no later than 30 November 2021.
Panellist: AW Howden
ELRC