In the matter between
NAPTOSA obo Williams, Estrolita Thea Applicant
And
Education Department of Eastern Cape Respondent
Appearances: For the Applicant: Advocate Saayman (NAPTOSA)
For the Respondent: Mr. X Sam (Assistant Director: HRD)
Arbitrator: Thobela Ncetezo
Heard: 7 September 12 September 2024
Delivered: 23 September 2024
SUMMARY: Interpretation and Application of Collective Agreement.
ARBITRATION AWARD
Details of hearing and representation
1. The dispute was set down for arbitration on 7 August and 12 September 2024. Advocate Saayman of NAPTOSA represented the Applicant, Williams, Estrolita Thea. Mr. Sam who is employed as Assistant Director: HR represented the Respondent, Education Department of Eastern Cape.
2. The Applicant submitted a bundle of documents, which was accepted by the Respondent. She testified in person and introduced one witness. The Respondent introduced one witness. All witnesses testified under oath. The proceedings were digitally recorded and conducted in English.
Issue to be decided
3. I am required to decide whether the Applicant is entitled to a housing allowance benefit in terms of Resolution 7 of 2015.
Background to the dispute
4. The Applicant submitted that she is a Post Level 1 educator and was employed by the Respondent on 1 June 2018. On 1 August she applied for housing allowance in terms of Resolution 7 of 2015 and signed a logbook as proof of her submission. She submitted that the amount that is due to her is R73 264.30, which is from 1 August 2020 to June 2024. The breakdown of the above amount is as follows:
4.1 1 August 2020 – 30 June 2021 = R16 026.34
4.2 1 July 2021 – 30 June 2022 = R18 000.84
4.3 1 July 2022 -30 June 2023 = R18 940.00
4.4 1 July 2023 – 30 June 2024 = R20 296.86
Applicant’s case
5. The Applicant testified that on 25 August 2020 she applied for housing allowance but could not remember the name of the official to whom she submitted the application forms. She was with a colleague who also was also applying for the housing allowance. They signed a logbook on submission of their applications. Attached to her application was her contract of employment and lease agreement as proof that she was renting. The official who received their application forms informed them that they will be informed of the outcome but to date the Applicant has not received the housing allowance or any communication regarding her application. The colleague with whom she submitted the housing allowance application forms is receiving the housing allowance.
6. Under cross-examination the Applicant stated that she became aware of her entitlement to housing allowance in 2019 when she started renting. A colleague also informed her that such entitlement is indicated in the payslip.
7. Her witness, Mrs. Susan Wyngaard, testified that she is an educator at Louis Rex Primary School the same as the Applicant. In August 2020, together with the Applicant they submitted housing allowance application forms (she could not remember the name of the official who received their forms) and signed as proof of submission. At the time of application, she was renting from her family. The witness received her allowance in 2020, but she could not remember in which month.
8. Under cross-examination the witness testified that she became aware of the housing allowance benefit in 2020. The documents which she submitted on 25 August 2020 were to get the savings portion of the housing allowance. She could not recall if all of the Applicant’s documents were attached to the application when they submitted the forms.
Respondent’s case
9. The witness of the Respondent, Mandisi Xhanti Mayongo, testified that he is Acting Deputy Director: Human Resource Administration.
10. He further testified that if an employee does not have a house, the allowance goes to his or her savings account. If he or she buys a house, the savings are paid into the employee’s bank account through Government Employees Housing Scheme (GEHS). An employee must complete rental forms, attach an affidavit, lease agreement and submit these to the human resources section for capturing. A rental code will then be allocated, and the amount will not go to her bank but savings account.
11. He further testified that a submission register is used to record an application which has been submitted and he was not aware of the logbook, which the Applicant and Wyngaard alleged they signed when they submitted their housing allowance application. The name of the Applicant was not on the submission register. He testified that if the Applicant had submitted the application, she would be entitled to R76 516.00 which was calculated as follows:
11.1 1 August 2020 – 30 June 2021 = R15 381.85
11.2 1 July 2021 – 30 June 2022 = R17 483.28
11.3 1 July 2022 -30 June 2023 = R18 000.84
11.4 1 July 2023 – 30 June 2024 = R20 296.56
11.5 1 July 2024 – 30 September 2024 = R5 353.65.
12. Under cross-examination the witness testified that the Applicant enrolled with GEHS on 1 July 2020 but does not have proof that she submitted her application for a housing allowance
Analysis of evidence and arguments.
13. Section 138(1) of the Labour Relations Act, no 55 of 1995 (as amended) (LRA) provides that a commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) of the LRA further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.
14. The testimony of the Applicant was that she applied for housing allowance in 2020 and submitted all the required documentation, including the lease agreement as proof that she was renting at the time. She also submitted enrolment confirmation dated 1 August 2020. One of the objectives of Resolution 7 of 2015 is to assist employees to rent houses with a view to buy and own a home.
15. The Applicant had subpoenaed a document on which she had signed when she submitted her application for the housing allowance, but the Respondent failed to make this document available. The witness testified that they could not find the submission record for the month and year in question. That document is supposed to be in the custody of the Respondent and in my view, it would not be reasonable to hold the Applicant responsible for not submitting it as proof that she submitted her application. The fact that the Applicant signed her housing allowance application on 25 August makes her version more probable than not. I cannot conclude that the name of the Applicant was not in the register when the Respondent has failed to make this document available. It was not denied that the witness of the Applicant is receiving the allowance. The claim by the Applicant could have been easily rebutted if the Respondent had made available the submission register that was signed by the Applicant’s witness. Their testimony was that they signed the logbook on the same day. The witness of the Respondent confirmed that employees signed when they submitted their housing allowance applications. That document which the Respondent failed to make available could have proved one way or the other whether the Applicant submitted her housing subsidy application. The blame for its unavailability cannot be placed on the shoulders of the Applicant but that of the Respondent as the custodian of the said documents.
16. I find that the Applicant has proven on a balance of probabilities that she that she submitted her housing allowance application in the proper manner and is therefore entitled to the housing allowance in terms of PSCBC Resolution 7 of 2015.
17. I accordingly make the following award;
Award
18. The Applicant, Williams, Estrolita Thea, is entitled to the housing allowance on terms of PSCBC Resolution 7 of 2015.
19. The Respondent, Education Department of Eastern Cape, is ordered to backpay the Applicant an amount of R76 516.00 for her outstanding housing allowance, which has been calculated as follows:
19.1 1 August 2020 – 30 June 2021 = R15 381.85
19.2 1 July 2021 – 30 June 2022 = R17 483.28
19.3 1 July 2022 -30 June 2023 = R18 000.84
19.4 1 July 2023 – 30 June 2024 = R20 296.56
19.5 1 July 2024 – 30 September 2024 = R5 353.65.
20. The amount due to the Applicant in terms of the above paragraph must be paid by the Respondent, by no later than, 18 October 2024, failing which the sum shall bear interest from the date of this award to the date of payment at the rate of interest applicable from time to time to judgement debts.
Signature:
Commissioner: Thobela Ncetezo
Sector: Education