Case Number: ELRC-579-25/26 EC
Commissioner: Hadley Saayman
Date: 17 December 2025

In the ARBITRATION between

(Union/Applicant)
SAOU obo Ruan Jonck
And
Department of Education –Eastern Cape
(Respondent)

Applicant’s representative: Ms. D Harvey
Applicant’s address: SAOU
21 Barton Rd
Cotswold
Gqeberha, 6045
Telephone: 041-364 0500
Telefax:
E-mail: debbieh@saou.co.za

Respondent’s representative: Mr. E Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
Bisho
5606
Telephone: 040 608 4540
Telefax: 040 608 4313
E-mail: Eun.hector@ecdoe.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the ELRC in terms Section 186(2)(a) of the Labour Relations Act 66
   of 1995 (LRA) set down for a virtual Arbitration on 21 November 2023.
2. The Applicants were represented by Ms. D Harvey, a Union Official.
3. The Respondent was represented by Mr. E Hector, Labour Relations Officer.

ISSUES TO BE DECIDED

4. I must decide whether the applicant is entitled to the benefits claimed as contemplated in terms of 186(2)(a) of the Labour Relations Act.

SURVEY OF EVIDENCE

5. This is a summary of submissions and evidence considered, as provided for in terms of Section 138(7)(a) of the Act, relevant to the dispute at hand. BACKGROUND
6. The Applicant, Mr. Ruan Jonck, has been employed by the Eastern Cape Department of Education (hereinafter referred to as the Respondent) as a Post Level 1 Educator since 21 November 2023.
7. The Applicant was transferred from Kirkwood High School in the Sarah Baartman District to
   Waayplaatz Primary School in the Chris Hani West District, effective 1 October 2024.
8. On 20 May 2025, the Applicant did not receive his salary payment and subsequently requested his Union to investigate the matter on his behalf.
9. Following the investigation, it was established that the Sarah Baartman District (the Respondent) erroneously terminated the services of the Applicant, with effect from 1 May 2025.
10. On 26 May 2025, the Union notified the District Director (the Respondent) of the erroneous
    termination of the Applicant by the Sarah Baartman District, as detailed in Annexure B attached
    hereto, and requested immediate remedial action to ensure the payment of any outstanding salary
    due to the Applicant as a matter of urgency. APPLICANT’S EVIDENCE/SUBMISSIONS
11. On 30 May 2025, the Applicant received a GEMS contribution reconciliation statement,
    reflecting an outstanding Subsidy share amounting to R20,868.00 and a member share of
    R9,930.00, which are payable to GEMS prior to the reinstatement of membership.
12. On 9 June 2025, the Respondent reinstated the Applicant’s employment and effected
    payment of the outstanding salary and pension contributions as per his May 2025 salary
    advice.
13. On 10 June 2025, the Applicant received an email from GEMS notifying him that his
    GEMS membership had been terminated effective 30 April 2024, and that any claims
    incurred after this date would be the responsibility of the member.
14. On 12 June 2025, the Sarah Baartman District Director (the Respondent) notified GEMS
    of the error and formally requested the reactivation and reinstatement of the Applicant’s
    medical aid benefits.
15. On 7 July 2025, the Applicant received further correspondence from GEMS, a
    statement, which detailed outstanding claims payable to medical providers in the
    amount of R5,857.23.
16. As a result of the Respondent’s grossly negligent conduct, as detailed above, the Applicant has
    suffered and continues to suffer unfair prejudice, including significant financial detriment to
    himself and his dependents. Accordingly, it is necessary to submit a claim for the outstanding
    GEMS membership contributions and reimbursement for payments due to medical providers. RESPONDENT’S EVIDENCE/SUBMISSIONS
17. The employer submitted that all financial obligations owing to the employee have been duly and
    fully settled.
18. The claimed membership fees amounting to R9,930.00, it is pertinent to clarify that enrolment in
    a medical aid scheme is at the sole discretion of the employee, who may choose any medical aid
    provider independently. There is no evidence indicating that the employee made any payments
    on behalf of the employer; consequently, no reimbursement is justified.
19. The employer’s obligations concerning medical aid are limited to the subsidization of membership
    fees exclusively for employees enrolled in the Government Employees Medical Scheme (GEMS).
    Allowing the applicant to claim reimbursement for fees during a period in which no such
    contributions were made is inequitable to the employer. Therefore, the employer is only liable to
    subsidize amounts actually paid by the employee towards GEMS membership, and no
    substantiating evidence has been provided to support the claim.
20. The applicant is not entitled to reimbursement for medical expenses from the employer, given that
    the employee was aware of not being registered with any medical aid scheme when such
    expenses were incurred. This may be construed as an act of bad faith.
21. The Eastern Cape Department of Education does not have the authority to enroll or mandate
    GEMS to reinstate an employee’s membership, as it lacks jurisdiction over GEMS, an
    independent medical aid provider. The claims put forth are unsupported by proof of payment by
    the applicant. Accordingly, entitlement to reimbursement cannot be established in the absence of
    any payment.
22. The relief sought therein cannot be granted, as any remedy or relief in this matter depends solely
    on the cooperation of the applicant, Mr. Jonck. It is submitted that had Mr. Jonck adhered to the
    various advice provided, including that of his representative, this matter would have been
    resolved. All benefits legally within the authority and jurisdiction of the employer have been
    reinstated, and all payments have been made in full.

ANALYSIS OF EVIDENCE AND ARGUMENT

23. The Respondent has conceded that it erroneously terminated the Applicant’s services in its
    system, rather than recording a transfer as intended. Consequently, the Applicant’s medical aid
    benefits were also terminated as a result of this error.
24. It is common cause that the GEMS statement reflects an outstanding subsidy share amounting to R20 868.00 and a member share of R 9 930.00, both of which are payable to GEMS prior to the reinstatement of membership.
25. The Labour Appeal Court in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (2013) 34 ILJ 1120 (LAC) held that the distinction drawn by courts between remuneration and benefits is artificial and unsustainable. It also held that the definition of benefits is not limited to entitlements arising ex contractu or ex lege and may include advantages or privileges granted in terms of policy or practice subject to employer’s discretion:
    “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 s 186(2)(a) of the Act 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”
26. What the Apollo Tyres case in essence means is that in order for a dispute to qualify as an
    unfair labour practice dispute relating to benefits that can be arbitrated in terms of section 186(2)
    the following requirements must be met:

• There must be an existing practice or policy in the workplace that gives the employer a discretion to grant certain benefits; and
• A demand must be made by the employee that his employer must grant those benefits to him/her; and
• The employee must claim that his/her demands should be met because the employer has acted unfairly in exercising his discretion and refusing the benefits,

23. In Apollo Tyres the Court said the following in relation to fairness:
    “… unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.”
24. Considering all of the above, the Applicant, Ruan Jonck (persal number: 58370854) is entitled to the outstanding benefits for the periods as indicated above table in the amount R 15 787.23 (Fifteen thousand Seven hundred and Eighty-seven rand and twenty- three cents), which include (R 9 930.00 employer’s contribution and R 5 857.23 unpaid medical claims). I therefore deem it reasonable to make the following award: AWARD
25. The Respondent, Department of Education-EC is ordered to pay the Applicant, Ruan Jonck
    (persal number: 58370854) the amount of R 15 787.23 (Fifteen thousand Seven hundred
    and Eighty-seven rand and twenty- three cents), calculated as R 9 930.00 employer’s
    contribution and R 5 857.23 unpaid medical claims.
26. The above-mentioned amount must be paid by the Respondent to the Applicant by no later than 20 January 2026 and would not be subjected to normal statutory deductions.
27. The Head of The Department of Education-EC, (HOD) is ordered to ensure that payment is
    effected to the Applicant,Ruan Jonck (persal number: 58370854) as stated above.

Signature:

Commissioner: Hadley Saayman

Sector: Education