30 August 2021 – ELRC177-21/22EC

In the matter between

NAPTOSA obo Lewis Nyanhi Applicant

and

Eastern Cape Department of Education Respondent

PANELLIST: Dr. GC. Van Der Berg
Award Date: 30 August 2021

ARBITRATION AWARD

Details of hearing and representation
1. The arbitration hearing took place on the 6th of August 20121, via Zoom online video conference at 09:00. The proceedings were both digitally and manually recorded. The applicant, Lewis Nyanhi, was represented by A Witbooi from NAPTOSA The respondent, Eastern Cape Department of Education, was represented by A Slabbert.
Issue to be decided
2. The applicant referred an unfair labour practice dispute regarding benefits in respect of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended to the ELRC.
3. I am required to determine whether or not the respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186(2)(a) of the LRA by not paying the applicant’s relocation cost after promotion to the amount of R90 954.00
4. In terms of appropriate relief in the event that I find that the respondent committed an ULP: (1) Reimburse the amount of R90 954.00 in lieu of relocation cost minus normal tax deductions.
Background to the Dispute
5. The applicant had been promoted in 2019 to Senior Educationalist Specialist: CAT/IT. Applicant is owed the amount of R73 454-00 for accommodation and R17 500 for transport of furniture which amounted to R90 954-00. Applicant has submitted all forms and claims to the Department of Education on numerous occasions from 2020, and has received no reply from the respondent. It was not paid according to prescribed policies by the respondent.
6. The applicant referred the dispute to ELRC for conciliation on the 26th of May 2021 and a certificate of non-resolution was issued on the 17th of June 2021. The dispute was referred for arbitration on the 25th of June and the arbitration proceedings were set down for the 6th of August 2021.
7. The parties assured me that there is no factual dispute between them and that I am merely called upon to determine whether the applicant must be paid the relocation cost of R90 954-00. The parties did not present opening statements and agreed to present heads of arguments on the 13th of August 2021. No witnesses were called by either party and I am requested to make a decision based on the heads of arguments. It was received on the said date. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
8. Both parties submitted one bundle of documents which will be used by both. The bundle was marked as bundle “A” pages 1-4.
Applicant’s submissions and arguments
9. The Applicant, Lewis Nyahni, PERSAL number 54834058, was appointed as SES: CAT/ IT in Port Elizabeth on the 1st of January 2019. Applicant was previously based in Umtata. The Applicant relocated and stayed in a BNB for the first three months. He did this as the District failed to arrange temporary accommodation for him as determined by PSCBC Resolution 3 of 1999. In terms of Resolution 3 of 1999, resettlement will mean the moving of an employee and his/her immediate family and personal belongings from his original work place to the new work place. The resettlement expenditure policy is designed to compensate an employee, who has been transferred or appointed or owing to certain service requirements in the interest of the Department and at state expense in accordance with the Public Service Regulations and the PSCBC Resolutions.
10. The legal mandates are: (1) The Public Services Regulation 2001 Part V E2 (b); Determination by the DPSA on the consideration of the Customer Price Index; (3) The Public Service Coordinating Bargaining Chamber Resolution No 3 of 1999, Part XV.
11. This policy applies to all employees and prospective employees appointed or recruited in terms of the Employment of Educators Act 76 of 1998 within the Eastern Cape Education Department. The PSCBC Resolution No 3 of 1.999, Part XV (subsection 1.1) stipulates that “the employer shall generally meet within reason, the actual resettlement costs within the country incurred by an employee and or his/her immediate family as a result of official duties, or, in some cases, on termination of service or death”.
12. The resolution further describes that for the purpose of resettlement (subsection1.2) an employee’s immediate family includes only an employee’s:
(a) Spouse
(b) Minor Child, adopted child, dependent child and/or
(c) Relative who lives with the employee except when attending an educational institution, and who relies on the employee for the bulk of her or his assistance.
13. The costs are associated with the transfer (PSCBC No 3 of 1999). The Department shall pay the following expenses when employees are transferred due to service delivery requirements and on the Department’s initiatives.
14. The Department provide interim accommodation for a period of three month on assumption of duty at the new station subject to the approval of the Head of Department, and thereafter, the employee should obtain own accommodation at his/her own expense.
15. The ECDOE Systems Manual HR Administration states: (1) If the employee and his immediate family must unavoidably rent interim furnished accommodation at the old and new place of work, the employer may meet reasonable actual costs; (2) The Department will cover the expense of interim accommodation in rented furnished accommodation at the old and/or new place of work. Expenses related to boarding and lodging/hotel costs are limited to accommodation, meals, laundry and parking for a maximum of three calendar months. Expenditure related to private telephone calls, dry-cleaning services and alcoholic beverages are excluded. Limits on expenditure are: (a) Daily Tariff as described DPSA and/or (b) Department will issue and order for the accommodation.
16. However, Regulation 90 of the Regulations regarding the Terms and Conditions of Employment of Educators makes provision for the reimbursement of resettlement expenditure under certain conditions. The regulation provides as follows:
(1) Resettlement Expenditure; Upon the transfer, appointment or termination of service of an educator in terms of the Act or of his or her death, such an educator or his or her estate, whichever is applicable, shall be compensated by the employer for the reasonable resettlement expenditure actually and necessarily incurred as a result thereof within the framework of the provisions of this regulation and taking into account the following measures and guidelines:
(a) The Head of Education, within the context of the provisions, determine policy regarding aspects such as maximum periods of compensation, limits of expenditure, restrictions in respect of the quantity and kind of personal effects, the number and brand of motor vehicles, classes of travel, means of transport, costs of property transfer and any other possible form of expenditure or facet of transfer costs which may come to the fore.
(b) In considering the implications in terms of costs, it must be seen to that effective competition takes place where services are rendered for the purpose of resettling an educator or employee and that all available alternatives are taken into consideration to ensure that the most suitable option is exercised under the circumstances.
(c) The status of the educator being resettled in terms of his or her rank and taking into account the particular circumstances and underlying reasons.
(d) The principle of fairness and reasonableness by the employer in the application of the relevant measures.
(e) The delegation of any of the powers vested in the Minister in terms of the provisions of this regulation, must be done taking into account the provisions of the Exchequer Act, 1975 (Act No. 66 of 1975).
(2) The following expenses shall be payable to an educator on transfer:
(a) The accommodation and transport expenditure of an educator and a member of his or her household arising from a visit beforehand to the new headquarters.
(b) The accommodation and transport expenditure of an educator and his or her household arising from the transfer to the new headquarters including the transport of personal effects from packing to the eventual unpacking thereof at permanent accommodation as well as the all-inclusive insurance cover thereof.
(c) The expense of storage of personal effects as well as the all-inclusive insurance thereof.
(d) The expense of interim accommodation at the old or new headquarters.
Furthermore the three months accommodation and subsistence costs claimed by the applicant was approved by the District Director. The Director HR at Head Office in a letter dated the 6th of January 2020 indicated that the employer (ECDOE) will pay for relocation cost.
17. In the Labour Court case Trans-Caledon Tunnel Authority v. Commission for Conciliation, Mediation and Arbitration & Others (2013) 34 ILJ 2643 (LC) the judge confirmed that the provisions regarding unfair labour practice cannot be used to assert an entitlement to new benefits, new forms of remuneration or new policies not previously provided by the employer. However, where there is a claim about the unfair conduct of the employer in relation to the existing employment structure, conditions of employment, policies or practices, it could be referred to the CCMA as an unfair labour practice relating to benefits.
18. In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC) at para 50 the Court applied these general principles applicable to the challenge of the exercise of discretion on the basis of being unfair, as follows: ‘… unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended. In my view the better approach would be to interpret the term “benefit” to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgment “benefit” in section 186(2)(a) of the LRA means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice ( subject to the employer’s discretion).
19. It is clear based on the evidence and documentation presented, that the Applicant is entitled to claim for reasonable costs for his interim accommodation and transport in Port Elizabeth. The fact that head office acknowledge that they would pay if he can supply the slips and totals of the cost. He arranged his own accommodation is void of any reasonable explanation as the applicant had to assume duties on the 1st of January 2019. He requested the ECDOE to arrange accommodation but was in fact told to arrange it himself and he will be reimbursed by the ECDOE.
20. The representative of the applicant therefore pray for the following: The ECDOE pay the applicant the amount of R73 454 (Accommodation) + R17 500 (transport of Furniture) = R 90 954 before 31 August 2021.
Respondent’s submissions and argument
21. The Appliocant, Lewis Nyahni, Persal number: 54834058, was appointed as SES: CAT/ IT in Port Elizabeth on the 1st of January 2019.
22. The Applicant had to be relocated to assume duties in said post as he was previously based in Umtatha.
23. In terms of Resolution 3 of 1999, resettlement means the moving of an employee and his/her immediate family and personal belongings from his original work place (Umtatha) to the new work place (Port Elizabeth). It is therefore agreed that the Applicant be paid the amount of R73 454 for accommodation and the amount of R17 500 in respect of the transport of his furniture. The total amount to be paid is R 90 954 less tax deductions.
Analysis of evidence and argument
24. This is a summary of the relevant submissions and does not reflect all of the submissions and arguments heard and considered in reaching my decision on this matter. The dispute was referred in terms of section 186(2)(a) of the Labour Relations Act: “Unfair Labour Practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the employer…. relating to the provision of benefits to an employee. There is no dispute of fact as both parties agreed on the facts about relocation cost.
25. The Panellist is expected to determine whether the respondent’s failure to pay the relocation cost to the applicant after promotion was substantively unfair. From a procedural aspect the Panellist must be satisfied that the applicant suffered prejudice. Fairness requires an evaluation that is multidimensional. The fairness required in determination of an unfair labour practice must be fairness against both applicant and respondent.
26. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must prove that the decision not to reimburse his relocation cost was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.
27. The representative of the Applicant submits that it is clearly based on the submissions and documentation presented, that the Applicant is entitled to claim for reasonable costs for his interim accommodation and transport in Port Elizabeth. The fact that head office acknowledge that they would pay if he can supply the slips and totals is known. He arranged his own accommodation is void of any reasonable explanation as the applicant had to assume duties on the 1st of January 2019. He requested the ECDOE to arrange accommodation but were in fact told to arrange it himself and he will be reimbursed.
28. The policy applies to all employees and prospective employees appointed or recruited in terms of the Employment of educators Act 76 of 1998 within the Eastern Cape Education department. The PSCBC Resolution No 3 of 1.999, Part XV (subsection 1.1) stipulates that “the employer shall generally meet within reason, the actual resettlement costs within the country incurred by an employee and or his/her immediate family as a result of official duties, or, in some cases, on termination of service or death”.
29. The resolution further describes that for the purpose of resettlement (subsection1.2) an employee’s immediate family includes only an employee’s
(a) Spouse
(b) Minor Child, adopted child, dependent child and/or
(c) Relative who lives with the employee except when attending an educational institution, and who relies on the employee for the bulk of her or his assistance.
30. The costs associated with the transfer (PSCBC No 3 of 1999). The Department shall pay the following expenses when employees are transferred due to service delivery requirements and on the Department’s initiatives.
31. The Department provide interim accommodation for a period of three month on assumption of duty at the new station subject to the approval of the Head of Department, and thereafter, the employee should obtain own accommodation at his/her own expense.
32. The representative of the respondent submitted that the applicant had to be relocated to assume duties in said post as he was previously based in Umtatha. In terms of Resolution 3 of 1999, resettlement means the moving of an employee and his/her immediate family and personal belongings from his original work place (Umtatha) to the new work place (Port Elizabeth). It is therefore agreed that the Applicant be paid the amount of R73 454 for accommodation and the amount of R17 500 in respect of the transport of his furniture. The total amount to be paid is R 90 954 less tax deductions.
33. The applicant proved not only the existence of the unfair labour practice, but also that it was unfair. From a procedural aspect I am satisfied that the applicant did suffer prejudice as a result of the non-payment of his settlement cost after promotion. I therefore find that the respondent committed an unfair labour practice (ULP) in terms of Section 186(2)(a) of the LRA by not paying the applicant’s relocation cost after promotion in the amount of R90 954.00
34. In light of the above I make the following award:
AWARD
35. The respondent committed an unfair labour practice (ULP) regarding benefits for the non-reimbursement of the applicant for settlement costs after he was promoted.
36. The respondent, Eastern Cape Education Department, is ordered to pay the Applicant, Lewis Nyanhi, the amount of R90 954-00 (ninety thousand nine hundred and fifty four rand) in respect of accommodation and transport of his furniture by not later than the 25th of September 2021.
37. There is no order as to costs