IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC314-21/22LP

In the matter between

MADULA K AND 11 OTHRES Applicants

and

DEPARTMENT OF EDUCATION-LIMPOPO Respondent

ARBITRATOR: M.S Mavhungu

HEARD: 30 September 2021

DATE OF AWARD: 28 October 2021

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – unfair labour practice is conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee

SUMMARY: Whether the Employer (the Respondent) perpetrated an Unfair Labour Practice on the Employees (Applicants) when they failed to pay them a rural allowance.

ARBITRATION AWARD

Details of hearing and representation

1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place virtually on 30 September 2021 at 9:00.

2. The applicants, Gaffane M.S, Heliza H.I, Kgopa M.P, Madula K.D, Mafogo T.P, Malatji M.B, Maponya M.A, Motloutsi M.D, Msiza S, Sekokotla M.S, Shai M.R and Tlhokwe H.M were represented by B Perry from Thomas and Swanepoel INC, while the respondent, Limpopo Department of Education was represented by Matlou Mokgoba, its official. The proceedings were digitally voice recorded and conducted in English.

Nature of the dispute

3. The dispute was about the applicants’ alleged unfair labour practice related to benefits. The applicants alleged that the respondent is failing to pay them teachers incentive (rural allowance), even though their school Lepono Secondary School does qualify.

Issues to be decided

4. I must decide whether or not the applicants must be paid teacher incentive (rural allowance) from the date they became aware of the omission or upon approval by the (HOD) Head of Department. I must also determine an appropriate relief, for the alleged unfair labour practice committed by the respondent.

Background to the dispute and common cause issues

5. The applicants are all educators at Lepono Secondary School situated in Bismarck village, Makhutswe circuit, Mopani District. The school is quintile 1 and its weighted distance is above 140 kilometers. The RVQ levels of Educators are RVQ13 or higher.
6. The applicants satisfy the requirements of the incentive and that they qualify to receive same. It was no longer necessary for the applicants to prove that the respondent committed an act of unfair labour practice related to benefits.

7. I am required to determine the effective date of the teacher incentive payment as well as compensation for the unfair labour practice committed by the respondent.

Survey of the Applicants’ evidence and argument

8. The applicants handed a bundle of documents; the applicants mandated one witness (Madula Kabelo), who testified for them. Mr. K Madula testified under oath and in English that:

9. He was mandated by other applicants who signed the mandate to give him opportunity to present evidence on their behalf. He understands the purpose of rural incentive as to attract qualified teachers to work in rural schools. The applicants are attached to Lepono Secondary school and it is a quintile 1 school.

10. The applicants felt betrayed by their employer, particularly in light of the fact that the respondent has paid arrear incentives to educators at neighboring schools, Lekane and Mangwako Primary Schools.

11. He referred to the matter of Lewele and 116 others (PSES554-15/16LP) which he was familiar with. He also indicated that the respondent has not corrected the database as mentioned in the above matter and would have received the benefits if it was corrected. He submitted that he feels betrayed by the respondent for not paying them rural incentive.

12. The applicants have only claimed payment of the arrear incentive from 90 days prior to the referral of the dispute so as to avoid unnecessary litigation.

13. The applicants are devoted and loyal employees whose rights were being violated and infringed upon by the respondent unfair actions in respect of their legal rights and entitlement.

14. During cross examination, Mr. Madula testified that he is claiming compensation because they are quintile 1 school and in the remote areas and other schools close are receiving it.

15. The witness confirmed that they have been receiving their monthly salaries. He indicated that he was prejudiced by the failure by the respondent to pay them the rural incentive, as they are in remote areas and for them to access other things they incur costs. He felt betrayed because the other schools around are getting it.

16. During reexamination, he indicated that he felt the Department treated them unfairly and that is why he is claiming compensation as they were supposed to have been getting the rural incentive.

Survey of the Respondent’s evidence and argument

17. The respondent did not present any evidence and they indicated that there was no evidence or witness to call

Analysis of the evidence and arguments

18. In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The applicants referred an unfair labour practice dispute related to benefits. They allege that the respondent is failing to pay them Teacher Incentive even when their school qualifies.

19. It was agreed by parties that the applicants qualify for teacher incentive as they satisfy the requirements to be paid the incentive as per Departmental Circular No. 71 of 2017.
20. The legislation and policy governing the payment and qualification of rural incentive are Government Gazette 30678 no 25. The current incentive is set as R2333.65 p/m.

21. The respondent submitted that the educators will only be paid the teacher incentive as from the date of approval by the Head of Department of Limpopo Department of Education which is 02 September 2021.

22. The applicants on the other hand submitted that they would want to be paid teacher incentive as from the date the dispute arose which is in April 2021.

23. The respondent disputed that the applicants will have to be paid teacher incentive as from April 2021 as the process to verify if the they qualify for the benefits took some time to finalise.

24. The respondent further submitted that approval by the HOD for the applicants to be paid was only granted on 02 September 2021 as such the applicants qualify for the benefits as from the approval date. A reference was made to chapter 1 of the Public Service Regulation of 2001-part v para C.7, which gives the Executing Authority powers to effect payments on the date of approval.

25. The respondent has on previous cases dealt with similar issues to the ones of the applicants. A reference was made to case of Lewele and 116 others v The Department of Basic Education and others (PSES554-15/16LP).

26. The respondent also submitted that, they started with the process to verifying if all the teachers are professionally qualified and if the school is a quintile 1. It was further submitted that due to myriads number of rural cases, the respondent was dealing with, the process to finalize the verification was only completed on the 25 August 2021. The approval by the Head of Department was only granted on 02 September 2021.

27. It was not submitted as to when the respondent started with their process of verifying the qualifying schools. I do not find the submission by the respondent that it took them some time to verify to be acceptable and reasonable. The progressive employer should have from the time they became aware of the rural incentive policy to have verified the qualifying schools and paid them the rural incentive.

28. I also do not agree with the submission by the respondent that payments for the qualifying schools should await the approval by the Head of Department. It was also not indicated as to whether it was a requirement that payments will only be made after the approval by the Head of Department.

29. I therefore accordingly find that the applicants are entitled to payment of due and arrear incentives as from the date the dispute arose which is April 2021.

30. I now have to deal with whether the applicants qualify to be paid compensation for the unfair labour practice committed by the respondent.

31. Mr. Madula who testified as the applicants witness stated that the applicants felt betrayed by their employer particularly in light of the fact that the respondent has paid arrear incentives to educators at neighboring schools, Lekane and Mangwako Primary Schools.

32. He stated that the applicants are devoted and loyal employees whose rights were being violated and infringed upon by the respondent’s unfair actions in respect of their legal rights and entitlement.

33. It was submitted by the applicants that they suffered financial loss and prejudice as the result of the respondent unfair labour practice. The applicants did not suffer any reputational loss nor their dignity degraded.

34. The applicants did not present compelling reasons that warranted them to be paid compensation for the unfair labour practice committed by the respondent.

Award

35. I find that the respondent, Limpopo Department of Education committed an unfair labour practice related to benefits against the applicants, Gaffane M.S, Heliza H.I, Kgopa M.P, Madula K.D, Mafogo T.P, Malatji M.B, Maponya M.A, Motloutsi M.D, Msiza S, Sekokotla M.S, Shai M.R and Tlhokwe H.M

36. The respondent is ordered to pay the applicants, Gaffane M.S, Heliza H.I, Kgopa M.P, Madula K.D, Mafogo T.P, Malatjio M.B, Maponya M.A, Motloutsi M.D, Msiza S, Sekokotla M.S, Shai M.R and Tlhokwe H.M, collectively the sum one hundred and sixty eight thousand rand (R168 022, 80) on or before 01 December 2021. Each applicant must therefore be paid an amount of R14 001. 90 for the period April to September 2021.

37. The amounts referred to above is subject to statutory deductions as the employer is in terms of the law entitled or obliged to make.

38. As provided for by section 143 (2) of the LRA, any unpaid amount due in terms of this award will attract interest at the rate prescribed in terms of section 2 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from 1 April 2021, the date on which it was due.

M.S Mavhungu
Panelist