In the ARBITRATION between:
MOHULI, N M.
(Union / Applicant)
and
Education Department of KwaZulu-Natal
(Respondent)
Applicant: Email: NMohuli76@gmail.com
Persal number: 62194411
Applicant’s representative: Ms Saresha Govender – FAM Attorneys
Email: Saresha@famattorneys.co.za
Respondent’s representative: Mr Manjith Bejanath – DOE KZN
Email: Manjith.Bejanath@kzndoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(A)(iv) of the Labour Relations Act 66 of 1995 (“the LRA”), for the alleged unfair conduct of withholding salary payment due to the Applicant, Ms Ngkemeleng M. Mohuli, by the Education Department of KwaZulu-Natal, the Respondent in this matter.
2. This arbitration was conducted virtually via Zoom and video-recorded with the consent of the parties, on 13 April 2022.
3. At the arbitration the Applicant was present and represented by Ms Saresha Govender an attorney from FAM Attorneys.
4. The Respondent, the Department of Education of KwaZulu-Natal, was represented by Mr Manjith Bejanath.
5. The parties both did not submit formal bundles of evidence, as it was agreed between the parties that the evidence would be led primarily by means of testimony.
6. The Applicant did nevertheless share the Applicant’s payslip and a copy of her bank statement – these in support of salaried employment during the course of her fixed term contract, and of non-payment into her bank account.
7. In turn the Respondent’s Mr Bejanath submitted a letter dated 31 January 2022 confirming payment outstanding for the Applicant’s employment period from the 1st of February 2021 to the 1st of August 2021.
8. In terms of the LRA the Applicant bears the onus to show that the Respondent committed an unfair act or omission that may be construed as an unfair labour practice.
9. The parties submitted verbal closing arguments at the conclusion of the arbitration.
ISSUE TO BE DECIDED
10. I have to determine on a balance of probabilities whether the Applicant was subjected to an unfair act or omission relating to the provision of benefits by the Respondent in this matter.
11. Then, if an unfair act or omission relating to the provision of benefits has been confirmed, I must determine the appropriate remedy in terms of sections 193 of the LRA.
BACKGROUND
12. In terms of the Applicant’s payslip in evidence the payslip was for Pay Date 20210204 – hence 4 February 2021 – with her gross salary of R 29 915.84 per month.
13. The letter submitted into evidence by the Respondent further confirmed the Applicant’s employment period from the 1st of February 2021 to the 1st of August 2021.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE
14. Ms Mohuli was placed under oath, after which she confirmed she had been employed in the service of the Respondent, KwaZulu-Natal Department of Education (KZNDOE), on a fixed term contract from the 1st of February 2021 to the 1st of August 2021.
15. This was at the Respondent’s Sobonakhona Secondary School, as confirmed by the letter dated 31 January 2022 in evidence.
16. The Applicant party’s contention is that Ms Mohuli had not been paid her salaries by the Respondent for the entire period of her fixed term contract – from 1 February 2021 to 1 August 2021 – amounting to 6 months’ salaries.
17. Ms Mohuli’s payslip submitted as evidence confirms her gross salary as R 29 915.84 per month.
18. The amount the Applicant is claiming in terms of this dispute therefore amounts to what she was entitled to be paid, for that 6 month period.
19. Ms Mohuli testified she brought this problem to the attention of the KZN DOE by alerting first the school principal of Sobonakhona Secondary School, then the circuit manager, and also various human resource ladies at the head office of the Department of Education of the KZN province. She still received no payment, hence she referred this dispute to the ELRC.
RESPONDENT’S EVIDENCE
20. Mr Manjith Bejanath was placed under oath, after which he testified that the Respondent agrees and confirms the Applicant is indeed entitled to outstanding salaries from the Respondent for the period 1 February 2021 to 1 August 2021 – amounting to 6 months’ salaries.
21. Mr Bejanath explained that payment of the Applicant’s outstanding salaries had not been effected as it should have, and that he had since the conciliation process of this matter made various attempts to receive clarity on this from Umlazi District Circuit Manager, Mr T Moloi. Regrettably Circuit Manager Mr Moloi refused to take Mr Bejanath’s calls, nor respond to his emails on the non-payment of the Applicant Ms Mohuli’s outstanding salaries.
22. Nothing that Ms Mohuli testified to is in dispute, from the side of the KZN DOE.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. I am in full agreement with the parties that the Applicant in this matter is entitled to the amount claimed from the Respondent.
24. It is common cause between the parties that the Applicant was employed for the 6 months period from 1 February 2021 to 1 August 2021, and that she was not paid her salaries for this entire period is duly confirmed by the letter dated 31 January 2022 in evidence, together with the Applicant’s bank statement.
25. Understandably the Applicant expected that the Respondent would pay her salaries while she continued to tender her services month after month, to which she also duly escalated the non-payment to the applicable entities in the Department of Education KwaZulu-Natal.
26. The Respondent further did not dispute the Applicant’s entitlement, and the matter is clearly brought on an unopposed basis.
AWARD
27. The Applicant, Ms Ngkemeleng M Mohuli, was during the period from 1 February 2021 to 1 August 2021, whilst in the employ of the Respondent, the Department of Education of KwaZulu-Natal, not paid her salaries.
28. Ms Ngkemeleng M Mohuli is entitled to the relief of payment of six salaries, calculated as follows:
Monthly Salary of R 29 915.84 X 6 months = R 179 495.04
29. The Department of Education of KwaZulu-Natal must pay Ms Ngkemeleng M Mohuli with Persal Number 62194411 the amount of R 179 495.04 by no later than 30 June 2022.
Commissioner Sally-Jean Pabst
ELRC Arbitrator