Case Number: PSES 305 NP
Applicant: J A MIDDELTON
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 20 June 2001
Arbitrator: A M CARRIM
EDUCATION LABOUR RELATIONS COUNCIL:
Case no: PSES 305NP
In the matter between:
MR J A MIDDELTON Applicant
DEPARTMENT OF EDUCATION: NORTHERN
DETAILS OF THE HEARING AND REPRESENTATION:
1.1 The arbitration hearing was held on 6 June 2001 at Voorwarts Building at the corner of Hospital and Hans van Rensburg Streets, Pietersburg, Norhern Province.
1.2 The employee party Mrs J A Middelton, was absent and was represented by Ms L V Malumbete of Stemmett and Coetzee Inc of Pietersburg.
1.3 The employer party, the Department of Education, Northern Province was represented by Ms Makhafola L K from the Department’s Labour Relations Department.
ISSUE TO BE DECIDED:
Whether Ms Middelton was an employee of the Department of Education, Northern Province or not and whether there is salary and employment benefits due to Mrs Middelton.
The dispute was referred to conciliation and a certificate stating that the dispute remains unresolved was issued. The dispute was referred to arbitration.
4.1 A bundle of documents was handed in;
4.2 Both parties gave opening statements;
4.3 The employer raised points in liminé.
POINTS IN LIMINé:
5.1 The Applicant was not an employee of the Department. She was an employee of the School Governing Body (SGB). She referred to Exhibits “A”, “B1”, “B2” and “B3” of the bundle.
5.2 Because the Applicant was not an employee of the Department, the ELRC has no jurisdiction.
5.3 Because the Applicant was not in the country the referral to arbitration was not signed by herself but by her attorney. According to Resolution 6 of ELRC, item 16, the referral form must be signed by the Applicant and not a representative. She referred to the CCMA arbitration case of Maroka v Console Glass, GA49523, in which the referral form was signed by an attorney and was then regarded as invalid.
6.1 Ms Malumbete, for the Applicant, referred to page 1 of the bundle which indicated that the post was advertised and sent to Makweng office. She argued that there is nothing to say that the Department did not give mandate. She said that page 1 (the advertisement), was taken to the district manager in Mankweng and therefore the proper procedure was followed.
6.2 She testified that the employee was employed by School Governing Body (SGB), but page 19 of the bundle clearly states that whatever advances made must be repaid to the school. Page 18 of the bundle is a payslip from Haenertsburg School. She indicated that on page 19 SGB felt that they could not lose Mrs Middelton and were prepared to advance money to her until she received payment from the Department of Education. She argued that from May 2000 when she assumed duty until 11 October 2000 there was no communication from the Department at the school concerning her appointment. She indicated that the Applicant made four submissions and she was therefore in the employ of the Department.
6.3 She indicated that the Applicant was an employee of the Department of Education based on pages 1 and 2 of the bundle, despite the fact that she did not receive a letter of appointment. She said that the appointment procedure was followed by SGB. She said that SGB made a submission and there was no response from the Department of Education which means that until such time that they said that they were not prepared to employ her, she was an employee of the Department of Education. She referred to the Employment of Educators Act, chapter 3, concerning appointment. Clause 6B of the Act outlines circumstances when the Department can decline recommendations of the SGB. The ELRC therefore has jurisdiction.
6.4 She testified that the conciliation referral was signed by the Applicant but the arbitration referral was not signed by the Applicant as she was overseas. The Applicant signed a special power of attorney, authorising her to proceed with her legal matter.
6.5 Both parties gave closing arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT:
7.1 I first had to decide whether the Applicant was an employee of the Department of Education. In January 2001 the Applicant was informed in writing by the Chairperson of the SGB that it was highly unlikely that the Department of Education would employ her. The SGB therefore felt that they were in need of a teacher and requested her to stay on. After considering the argument of both sides, I am of the view that the Applicant was not an employee of the Department of Education of the Northern Province in terms of Circular 1 of 2000. Points 5.2, 6 and 7 of that circular reads as follows:
5.2.1 the school/college must make a motivated submission to the Department for approval in accordance with the attached format;
5.2.2 the educator MUST not assume duty UNTIL written approval from the Department is obtained.
6. This circular withdraws the previously issued Circulars no’s 98 & 99 of 1999.
7. Any school/college failing to comply with any provision of this Circular will be deemed to be acting on the basis of their own source of mandate (legislation) and budget, and, as such, the accounting officer (principal/rector), joined the Governing Council of such an institution, will assume all the consequential responsibilities attached to their actions”.
7.2 This Circular was addressed to all Regional Directors, District Managers, Circuit Managers, Heads of Education Institutions, Teaching and Lecturing staff, School Governing Bodies and College Governing Councils. There was no evidence or argument indicating that the Applicant or the SGB or the principal of the school was not aware of such circular. I am of the view that 5.2.1 was followed. However, 5.2.1 was not complied with as the educator never received any written approval from the Department.
7.3 The Applicant’s application for an educator’s post was dated 19 April 2000. The circular 1 (one) of 2000 from the Department was dated 4 January 2001, therefore I am of the view that procedure as indicated in Circular 1 of 2000 was not followed and the Applicant was never appointed as an employee of the Department of Education of the Northern Province.
I find the Applicant was not an employee of the Department op Education of the Northern Province and therefore there is no salary and employment benefits due to her from the Department of Education of the Northern Province.
A M CARRIM
SIGNED: 20 JUNE 2001
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 305 NP
APPLICANT J A MIDDELTON
RESPONDENT DEPARTMENT OF EDUCATION
NATURE SALARY (PAYMENT OF)
ARBITRATOR A M CARRIM
DATE OF ARBITRATION 6 JUNE 2001
APPLICANT MR L V MALUMBETE
RESPONDENT L K MAKHAFOLA
The Applicant was not an employee of the Department op Education of the Northern Province and therefore there is no salary and employment benefits due to her from the Department of Education of the Northern Province.
DATE OF AWARD 20 JUNE 2001