IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Date: 02 September 2021
Case No. ELRC777-20/21EC

In the matter between

NAPTOSA obo VALASHIYA JOSEPH MBUYISELO Applicant

And

EASTERN CAPE DEPARTMENT OF EDUCATION Respondent

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 01 June 2021 at 9:00AM. The applicant, Valashiya Joseph Mbuyiselo was represented by Anton Adams from National Professional Teachers Organisation of South Africa (NAPTOSA), while the respondent, Eastern Cape Department of Education was represented by Nokulunga Sikithi, its official. The matter was decided on papers of records submitted by the parties.

Nature of the dispute

2. The dispute was about the applicant’s alleged unfair labour practice related to benefits. The applicant is alleging that the respondent failed to pay him the resettlement allowance as provided for in terms of the Public Service Coordinating Bargaining Council (PSCBC) Resolution 3 of 1999 read together with Regulation 90 regarding Terms and Conditions of Employment of Educators.

Issues to be decided.

3. I must decide whether the applicant qualified for the payment of resettlement allowance or not. I must determine an appropriate relief if it is found that the applicant qualifies.

Background to the dispute and common cause issues

4. The matter was scheduled for virtual arbitration hearing on 01 June 2021. During the arbitration hearing, the parties agreed for the matter to be decided on the papers of records. It was agreed by the parties that the applicant will submit his heads of argument by no later than 06 June 2021. The respondent will then respond by no later than 15 June 2021. The applicant will after that reply by no later than 18 June 2021. However, the applicant filed his heads of arguments on 09 June 2021 and the respondent did not respond up until the 16th of August 2021. There was no reply from the applicant.
5. It is common cause that the applicant has been employed since 1 December 2017. He is employed as a Subject Advisor, earning a salary of R35 300.75 per month. He was transferred from Bloemfontein to Sterkspruit in the Eastern Cape. The applicant qualifies for resettlement allowance amounting to R31 230.00 (R35 730.00 – R4 500.00 = R31 230.00)

Survey of the Applicant’s submission and argument

The applicant, Valashiya Joseph Mbuyiselo submitted that;

6. He was transferred from Bloemfontein to Sterkspruit in the Eastern Cape with effect from 1 December 2017. He agreed with the respondent to arrange his temporary accommodation for three months and the respondent would re-imburse him. He prays that the respondent pays him an amount of R35 333.00 R397.00 x 89 days), which was part of the costs associated with State initiated transfer as provided for in terms of PSCBC Resolution 3 of 1999.

Survey of the Respondent’s submission and argument

The respondent submitted that;

7. The applicant was paid sundry costs (once off basic salary) and three months’ rental fees. The applicant does not qualify for the payment of daily allowance and meals as he opted to accommodate himself on a private accommodation. Daily allowance and meals are only applicable when officials are booked in a B&B or hotel by the respondent.

Analysis of the submissions and arguments

8. The applicant submitted that the respondent did not pay him the daily allowance for 89 days amounting to R35 333.00. The respondent disputed that and submitted that the applicant was paid sundry costs, but there was no figure given by the respondent. However, I find these arguments by both the applicant and the respondent irrelevant because both parties agreed that it is common cause that the applicant qualifies for resettlement allowance amounting to R31 230.00. There was no dispute in terms of the payment of the other costs which was associated with transfer, except the resettlement costs of moving to a new place of work by the applicant, hence it is common cause that the applicant qualifies for this cost.
9. In view of the above, I therefore find that the applicant qualifies for the payment of the resettlement allowance. However, I differ with the amount to be paid. It is also common cause that the applicant was earning a salary of R35 300. 75 per month at the time of the incident. It was again common cause that from the amount of resettlement to be paid, R4 500.00 should be subtracted, because he was already paid this amount. Therefore, the amount to be paid to the applicant as resettlement allowance would be R30 800.75 (R35 300.75 – R4 500.00 = R30 800.75)

Award

10. I find that the conduct of the respondent, Eastern Cape Department of Education was unfair.
11. The respondent, Eastern Cape Department of Education is hereby ordered to pay the applicant, Valashiya Joseph Mbuyiselo in the amount of R30 800.75 (Thirty Thousand Eight Hundred Rand Seventy Five Cents), being his month’s salary calculated at R35 300.75 per month less R4 500.00.
12. The whole amount of R30 800.75 must be paid to the applicant on or before 30 September 2021, failing which it shall earn interest in terms of section 143 of the Act.

V. Madula
Panelist