7 April 2021 – ELRC626-19/20KZN

Award Date:

31 March 2021

Text

THE ELRC ARBITRATION
BETWEEN:

B MGOBHOZI “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC626-19/20KZN
Date of award: 31/03/2021
NOZIPHO B KHUMALO
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 24 of the Labour Relations Act (LRA). The arbitration was held virtually on the 19/11/2020. The Applicant represented himself while Mr Indran Pillay appeared for the Respondent. Parties agreed to make written submissions.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2 The Applicant was a shop steward of a union, SADTU. One of his responsibilities is attending union meetings. In 2016, the Applicant took leave amounting to fifty-four (54) days, which he alleges were for trade union activities. In 2017, he took leave amounting to eleven (11) days. The Respondent effected deduction of leave without pay for these days.

3 The Applicant lodged a dispute for interpretation and application of PSCBC collective agreement; Determination of leave of absence in the public service. The sections to be interpreted are Section 5.5.1 and 5.2 of the Determination of leave of absence in the public service collective agreement.

4 The Applicant handed in Annexure “A”, whilst the Respondent handed in Annexure “B”.

5 I have to decide whether the Collective Agreement Resolution 8 of 1995 and the Personnel Administrative Measures (PAM) Chapter F is applicable to the Applicant or whether the PSCBC collective agreement: Determination of Leave of Absent in the Public Service on the pooling of leave is applicable.

PRELIMINARY ISSUES

6. The Respondent party raised a preliminary point that the collective agreement, Determination of Leave in the Public Service does not apply to the Applicant as he is employed under the Employment of Educators Act.

SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s case

7. The Applicant’s cause of disagreement is with the number of days that he was entitled to for union activities. The sections to be interpreted are contained in the Determination of Leave of Absence in the Public Service, “A”50; Section 5.1 …office bearers and shop stewards of recognised employee organisations shall receive 15 working days paid leave per annum for activities related to his/her union position. Section 5.2. The 15 working days shall be pooled per recognised trade union. Office- bearers or shop stewards belonging to the same recognised trade union may apply for leave days from the pool.
Or “B”15,
Section 27.3… The 15 working days shall be pooled per recognised trade union. Office bearers or shop stewards belonging to the same recognised trade union may apply for leave days from the pool…. 27.4. The head of Department shall appoint an administrator of the pool. …. 27.5. A shop steward may apply for leave from the pool in respect of the recognised employee organisation she/he belongs to only. …. The department is failing to explain the meaning of pool as stated in these sections.

8. The Applicant argued that the public service is a service to serve all members of the community. The government usually provides it to people living within its jurisdiction, either directly or by financing provision of the service. The Department of Education falls under public service by it receiving funding from the government and also servicing members of the community makes it a public service sector. The council that deals with all public service and administration is the PSCBC. For the fact that increments are based on decisions made by the Minister of Public Service, they do answer and should have knowledge of the Determination and Directive on Leave of Absence in the Public Service document.

9. Further, the bundle submitted by the Respondent has extracts from the Determination of leave of Absence in the Public Service which proves that this document is relevant to the Department.

The Respondent’s case

10. The Respondent’s argument is summarised as follows. The Applicant alleges that he was on leave for union activities. There was no application made to the principal before or after the leave was taken. The Applicant had an obligation to seek permission for leave before he departs and not supply documents some two years later when deductions to recover the salaries paid during absence had commenced. Chapter F of the Personnel Administrative Measures provides only for twelve (12) days per annum. Chapter F Clause 3.1.4 states clearly the leave that can be accessed by the Applicant. The leave without pay deductions against the Applicant salary was stopped in 2019 to give him a chance to make representations. He failed to provide these documents at that time. The Applicant does not dispute that he took fifty – four (54) days for union activities and he should therefore consult with his union. The Respondent will not pay any days beyond the twelve (12) days provided for in PAM.

11. The collective agreement that the Applicant is referring to does not apply to the Applicant as he is employed in terms of the Employment of Educators Act 76 of 1998. The collective agreement he is referring to is for the Public Service Coordinating Bargaining Council and not educators. The Public Service Act regulates the terms and conditions of employment for public servants. The “Determination of the leave of absence” is applicable to employees within the General Public Service. It is not applicable to educators. Furthermore, in terms of the definitions within the Public Service Act and Employment of Educators Act, the Head of Department is the employer of educators. The MEC is the employer of Public Servants. Educators are not Public Servants.

12. Trade union shop stewards in the public service do not educate learners and their leave pool is quite different from that of educators. Section 28(2) of the constitution states that the best interests of the child are of paramount importance in all matters concern the child. The collective agreement for Educators mentions the best interests of the child. For this reason, shop stewards are allowed twelve (12) days only.

SUMMARY OF ARGUMENTS

13. The Respondent argued that the Applicant is employed in terms of the Employment of Educators Act and the PAM in terms of this Act, are applicable to the Applicant.

14. The Applicant argued that the Directive for Leave of Absence in the Public Service is applicable to all those that are employed in terms of the Public Service Act and fall within the scope of PSCBC. The Respondent by default, therefore falls under the PSCBC and the Public Service Act.

ANALYSIS OF EVIDENCE AND ARGUMENT

15. In this case, the following facts are common cause. Firstly, that the Applicant took 54 days leave in 2016 which was far beyond the 12days leave granted by the Respondent for union activities. In 2017, he took a further 11 days out of the 12 days granted by the Respondent. Secondly, the Respondent deducted money from the Applicant’s salary for the excess leave taken by the Applicant.

16. The Applicant relied on the Determination for Leave of Absence in the Public Service, which gives effect to leave in the general public service. This collective agreement / directive, forms part of the Public Service Act. It is important to note that the PSCBC is formed in terms of section 35 and 36 of the Labour Relations Act 66 of 1995 as amended to perform dispute resolution functions in the general public service. The ELRC, which deals with labour disputes in the education sector, is a designated sector dispute resolution entity formed in terms of section 37 of the LRA. In terms of Section 37(5), a bargaining council established in terms of subsection (2) has exclusive jurisdiction in respect of matters that are specific to that sector and in respect of which the State as employer in that sector, has the requisite authority to conclude collective agreements and resolve labour disputes. The Employment of Educators Act thus regulates the Employment of educators. The Determination of Leave of Absence in the Public Service is applicable only to employees in the general public service and not to educators.

17. Furthermore, Chapter G, Clause 3.2(b)(ii) of PAM states that the amount of time-off to be allowed must not exceed a maximum of 3 school days at a time and the entitlement is limited to a maximum of 12 school days per annum. Should additional time-off be essential and in the interest of labour peace, the employer may, with due regard to the principles of reasonableness, consider a motivated request for additional time-off. The Applicant in this case, failed to prove firstly that a request was made for additional time-off. “A”1 – 45 are documents pertaining to the meeting attended by the Applicant for the periods in question. However, the Applicant failed to prove that applications for leave in respect of the periods in question were made to the Respondent.

FINDING

18. I find that the Determination for Leave of Absent in the Public Service is not applicable to the Applicant.

AWARD

19. The application of the Applicant is dismissed. I make no order as to costs.

Commissioner: Nozipho B Khumalo
Date : 31/03/2021.