Panelist: Jonathan Gruss
Date of Award: 25th July 2024
In the ARBITRATION between:
SAOU obo Francis Felix Booysen
(Applicant)
and
Department of Education: Eastern Cape
(Respondent)
Applicant’s representative: Ma Venita van Wyk
Respondent’s representative: Mr. Euan Wade Hecktor – Labour Relations Officer
Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, claim for salary and bonus owed.
DETAILS OF HEARING AND REPRESENTATION
1. This 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 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held utilising the virtual Teams platform on 25 July 2024 and the proceedings were electronically recorded. The applicant’s union, SAOU referred an enforcement dispute on behalf of the applicant, Francis Felix Booysen to the ELRC. The applicant was represented by Ms Venita van Wyk, an official of SAOU. The respondent, Department of Education: Eastern Cape was represented by Mr. Euan Wade Hector, a Labour Relations Officer.
ISSUE TO BE DECIDED
2. This dispute concerns the alleged non-payment of the applicant’s salary for the month of November 2022 and March 2023. I am required to determine whether the respondent is indebted to the applicant for the payment of any outstanding remuneration.
BACKGROUND TO THE ISSUES
3. The applicant referred an enforcement dispute claiming that the respondent owes her salary for the month of November 2022 and March 2023. The respondent, at the commencement of the proceedings, conceded that they owe the applicant her salary for the months as claimed and submitted that the payments are busy being processed and are imminent.
SURVEY OF EVIDENCE
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
5. The applicant gave evidence under oath to the following effect. She is currently employed as a post level 2 educator, departmental head at Jeffreys Bay Comprehensive School. She commenced employment with the respondent on 1 February 2012. The respondent at month end November 2022 and March 2023 paid her salary into her bank account. Unfortunately, the bank placed a block on her cheque account with Standard Bank for the month of November 2022 and March 2023. As a consequence to the applicant’s bank account been blocked at the time, the funds electronically transferred to the applicant’s bank account was returned to the respondent. As confirmed in a letter dated 28 March 2023 originating from the applicant’s bank, the block on the applicant’s bank account was not the applicant’s fault but that of the bank. As confirmed by the salary advice for the applicant for the month of November 2022 and March 2023, the gross amount owing before deductions to the applicant for each month was R32 257.82 and the net amount that should have been paid to the applicant after deduction for each month was R17428.41. The total gross amount before deductions due and owing to the applicant for the month of November 2022 and March 2023 is R64 515.64 after deductions the amount owing is R348 56.82.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 1 of 2023 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
6.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
6.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
7. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
7.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
7.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee’s employer is a party to the Council;
8. Clause 69.8 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 8 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
9. Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act 75 of 1997 (as amended) (BCEA); the Employment of Educators Act; the Personnel Administration Measures (PAM), or any regulation or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in respective the Province where an educator is employed as it relates to conditions of service, a collective agreement and the contract of employment.
10. Section 32(1) of the BCEA states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee.
11. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
12. The payment of any employee’s wages forms part of their conditions of service.
13. It was not in dispute that the applicant’s salary that was paid into her bank account at month end for November 2022 and March 2023 was returned by the bank due to a block on the applicant’s bank account. It is common cause that the Applicant tendered her services and taught learners and therefore the respondent is indebted to the applicant for the outstanding wages.
14. I must compliment the respondent’s representative for her honesty and integrity in these proceedings, for in so doing he assisted us to speedily resolve the dispute.
15. I therefore make the following award.
AWARD
16. The respondent, Department of Education: Eastern Cape is indebted to the applicant, Francis Felix Booysen for outstanding salary for the months of November 2022 and March 2023 in the gross amount of R64 515.64 that excludes statutory deductions.
17. The respondent is ordered to pay the applicant a gross amount of R64 515.64 subject to statutory deductions by no later than 30 August 2024.
Name: Jonathan Gruss
(ELRC) Arbitrator