PSES 631-09/10 KZN
PSES 631-09/10 KZN
Award Date:
20 October 2010
Case Number: PSES 631-09/10 KZN
Province: KwaZulu-Natal
Applicant: True-Love Bonakele Shozi
Respondent: Department of Education – KwaZulu-Natal
Issue: Unfair Labour Practice - Probation
Venue: Durban Teachers Centre
Award Date: 20 October 2010
Arbitrator: S.N.Pillay
Arbitration Award
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Panellist: S.N.Pillay
Case No.: PSES631-09/10KZN
Date: 20 October 2010
In the ARBITRATION between
True-Love Bonakele Shozi
(Union/Applicant)
and
Department of Education – KwaZulu-Natal
(Respondent)
Union/Applicant’s representative:
Unrepresented
Union/Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative:
Peter Jenkins
Respondent’s address:
Telephone:
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
[1] This arbitration hearing was set down for the 8th of October 2010 at the Durban Teachers’ Centre, College Rd., Durban.
[2] The applicant, True-Love Bonakele Shozi, appeared in person and was unrepresented whilst the respondent was represented by Mr. Peter J. Jenkins, a Deputy Chief Education Specialist responsible for Employee Relations at the respondent.
[3] The respondent’s representative raised two preliminary matters viz.
i. That the applicant was not appointed to any post within the respondent hence the applicant was not an employee of the respondent.
ii. That the respondent did not dismiss the applicant.
ISSUE TO BE DECIDED
[4] Whether the applicant was an employee of the respondent and if so found, I am to determine whether the applicant was unfairly dismissed by the respondent. If found that the applicant was unfairly dismissed by the respondent, I am to determine the appropriate relief to award to the applicant.
BACKGROUND TO THE ISSUE
[5] It was the applicant’s case that she was employed by the respondent at St. Nivards Primary School from the 11th of January 2010 and that she was unfairly dismissed at the end of January 2010. The applicant was not paid for the period that she worked.
[6] The respondent’s case is that the applicant was not appointed to a post within the respondent and that if the principal of the school called the applicant to commence work at the school, the principal had not acted under the auspices of the respondent. The applicant was not an employee of the respondent and the respondent had not dismissed the applicant.
SURVEY OF EVIDENCE AND ARGUMENT
[7] A 4-page document was submitted by the respondent and the applicant accepted the document to be what it purported to be.
The Applicant’s Evidence
[8] The applicant testified under oath and the relevant aspects of her testimony are summarised hereunder.
8.1 On the 9th of December 2009, the applicant received a call from Mr. Khanyile, the principal of St. Nivards Primary School, for the applicant to attend an interview for a post at the school.
8.2 On the 10th of December 2010, the principal called the applicant back and informed the applicant that she was successful and got the post at the school. The post was a substitute post because the incumbent had passed away and the applicant was to occupy the post until the post was advertised and filled.
8.3 The applicant commenced duties at the school on the 11th of January 2010 and the principal gave her some forms to complete. The forms were to be taken to the Ward Manager in order for the applicant to be paid.
8.4 The applicant completed the forms and the principal indicated that he would give the forms to Ms. Zamisa, who would have to sign the forms.
8.5 Subsequently, on a Friday, the principal indicated to the applicant that Ms. Zamisa did not sign the forms.
8.6 On Monday, the 1st of February 2010, whilst the applicant was on her was to school, the principal stopped the applicant and informed her that he could not allow her to resume duty.
8.7 The applicant was not paid for the period that she worked. She heard nothing further from the respondent.
8.8 Under cross examination the applicant indicated that:
8.8.1 She placed her C.V. at various schools for any suitable vacancy that arose at that school.
8.8.2 When a post became available the applicant would be called.
8.8.3 She did not have a SACE registration number. She did not know that in terms of Section 21(2) of the SACE Act, ‘No person may be employed as an educator by any employer unless the person is registered with the council.’
8.8.4 The applicant did not dispute that the principal was an ex-officio member of the SGB.
8.8.5 There were about 12 persons on the panel of interviewers and she did not know the capacity in which each panellist sat.
8.8.6 The applicant was previously employed by the SGB at Naidoo Memorial Primary School. The post was a SGB post.
8.8.7 The principal of the school informed the applicant that the post at St. Nivards was a department post.
8.8.8 She completed the application forms (Bundle A) after she started work at the school.
8.8.9 She confirmed her signature on page 4 of the document and indicated that the principal told her to backdate the form to the date she started work, ie. 11 January 2010.
8.8.10 She conceded that the form constituted an application for a post.
8.8.11 She further agreed that the principal did tell her that she did not get appointed because Zamisa did not sign the forms.
8.8.12 The applicant left a SGB post at Naidoo Memorial because she was told that the post at St. Nivards was a state-paid post.
The Respondent’s Evidence
[9] The respondent’s first witness was Mr. Khanyile, the principal of St. Nivards Primary School. He testified under oath and the relevant aspects of his testimony are summarised hereunder.
9.1 He called the applicant for an interview at the school
9.2 All applications for the post were received at school
9.3 The post was advertised at satellite offices, at school, and in the local area.
9.4 The vacancy at the school was reported to the SEM and the witness informed the unions, viz. SADTU and NATU.
9.5 The panel of interviewers were made up of the School Management Team members, SGB members and trade union representatives.
9.6 There were 2 vacancies at the school at that time.
9.7 The applicant was one of the candidates with the top score at the interview.
9.8 After the interview the panel deliberated on which of the candidates to appoint. They agreed that the applicant was one of the persons to be appointed and the witness contacted the applicant on behalf of the School Management Team.
9.9 The applicant started work at the school on the 11th of January 2010.
9.10 The applicant was not appointed by the department but by the school because the school and not the department advertised the post.
9.11 The witness identified Bundle A as the document that is given to every teacher appointed to a school.
9.12 The applicant started work in January hence there was no need to backdate the form.
9.13 The witness confirmed that clause 16 on page 2 of the bundle was left blank hence the applicant could not be appointed by the respondent as the applicant was not a member of SACE.
9.14 The witness confirmed that he gave the applicant the form as the head of the institution and he acted on behalf of the respondent.
9.15 The witness outlined the steps in the employment of an educator as follows:
9.15.1 Vacancy is reported to the SEM.
9.15.2 Principal is given the authority to advertise the position.
9.15.3 SMT and SGB are informed of the vacancy.
9.15.4 Unions are invited to the short-listing process and the interviews.
9.15.5 Interviews are held.
9.15.6 Successful applicants are telephoned and requested to assume duty.
9.15.7 On arrival at the school to assume duty, the educator is given the ‘Application for Employment’ form to fill. (Bundle A)
9.15.8 The form is completed and together with assumption of duty forms and the qualification documents, is submitted to the SEM for endorsement.
9.15.9 It is thereafter submitted to the circuit office.
9.15.10 The letter of appointment then comes from the department, which occurs much later.
9.15.11 If there is some hurdle in the process that precludes the educator from being appointed, the appointment is stopped.
9.16 At the end of January 2010, the SEM informed the witness that the applicant did not qualify for appointment. The witness then requested the applicant to stop tendering service at the school because she (applicant) would not be paid, as the department did not appoint her.
9.17 The applicant was not appointed by the responded.
9.18 Under cross examination, the witness indicated that:
9.18.1 He did tell the witness that she would be paid by the department.
9.18.2 He did ask the applicant to backdate the application form to the day she started work.
9.18.3 He could not remember asking the applicant about SACE.
9.18.4 He did call the applicant and tell her not to take the transport to go to school
9.19 Under re-examination the witness
9.19.1 Indicated that he usually asks applicants about SACE registration.
9.19.2 Clauses 2 & 3 on page 3 of the bundle were in conflict.
9.19.3 He was aware that the applicant was studying towards a relevant qualification.
9.19.4 He believed that the applicant did have a degree.
[10] The respondent’s second witness was Ms. Zamisa. She testified under oath and the relevant aspects of her testimony are summarised hereunder.
10.1She was the Ward Manager of the ward in which St. Nivards Primary School was situated.
10.2She was aware of the vacancies at the school due to the death of an educator.
10.3The process of appointment to a post at the respondent was as follows.
10.3.1 The school communicates with the Ward Manager about the vacancy at the school.
10.3.2 When approved, the ward manager issues a form that is completed and signed by the ward manager.
10.3.3 The vacancy is then advertised at schools, shops, etc.
10.3.4 Interested persons apply for the post usually within 10 days and applications are usually sent to the principal.
10.3.5 Applications are sifted and the applicants that were qualified to fill the post are identified.
10.3.6 Short-listing and interviewing occurs thereafter.
10.3.7 When interviews are complete but before the person assumes duty, the documents are submitted to the ward manager who verifies that all details are correct.
10.3.8 The principal is then instructed to inform the successful applicant, and the applicant then assumes duty.
10.3.9 When the successful applicant assumes duty, the respondent is advised accordingly and information for salaries, is processed.
10.4The principal, Mr. Khanyile, took the applicant’s and another form to the witness to check and sign.
10.5One form was okay and the witness signed but the other application was not approved because the applicant did not have the required minimum qualifications.
10.6The principal tried to convince the witness to sign the form because the applicant was already on duty.
10.7The witness informed the principal that he had no authority to appoint the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
[11] This applicant’s entire case turns on whether she was an employee of the respondent or not. If I find that the applicant was an employee then it may follow that the applicant was dismissed and that the dismissal may have been unfair.
[12] From the evidence and argument of the applicant, she believed that the principal of the school, Mr. Khanyile, acted on behalf of the respondent, and that he had the necessary authority to appoint the applicant to the post.
[13] The uncontested evidence of both the principal of the school and the ward manager was that the principal did not have the necessary authority to appoint the applicant to a departmental post at the school.
[14] Clearly the principal acted outside the scope of his authority in engaging the services of the applicant in the current case. Whilst his testimony was contradictory in many respects, he did not dispute that he informed the applicant that she should assume duty at St. Nivards Primary School and that the post the applicant was to occupy was a departmental post. This caused the applicant to be misled into believing that the respondent was her employer and that the principal had the necessary authority to act on behalf of the respondent.
[15] After the applicant assumed duty at the school, she was requested to complete an application form for employment, and to submit copies of her qualifications, which were to be submitted to the ward manager for approval. The respondent argued that the applicant ought to have known at this stage that the principal of the school did not have the authority to appoint her to the post and that her employment was subject to the approval of the ward manager. Whilst I agree with the respondent, I do not believe that much will turn on this fact because the applicant was already rendering services at the school prior to the applicant being requested to complete the forms.
[16] The determination that I am required to make is whether or not the respondent can be held to be the employer of the applicant owing to the conduct of the principal of the school, when he engaged the services of the applicant to fill a vacant post. Whilst the respondent and/or the principal, as an employee of the respondent, may be vicariously liable for damages in delict, I do not believe that the principal, acting without the necessary authority, could have caused the respondent to become the employer of the applicant. This would cause utter chaos within the respondent and have serious financial implications if the respondent is found to be the employer of individuals who are merely placed into posts by the respondent’s employees to whom such authority was never delegated.
[17] The procedure outlined by the principal and the ward manager, which was similar in all material respects, was not challenged by the applicant. It confirms that the authority to appoint persons was not delegated to the principal. Although evidence was led that the applicant failed to meet the minimum requirements for appointment and therefore was precluded from being appointed, I do not believe that is relevant to this dispute. I am not required to determine whether or not the respondent was correct in its decision not to appoint the applicant. I am required to determine whether or not the applicant was appointed to the post by the respondent and thereafter dismissed by the respondent.
[18] Whilst I do have sympathy for the applicant who was misled by the principal of the school, I find that that the applicant was not appointed to the post by the respondent. Based on the evidence led, there is no provision by which the principal could have appointed the applicant to the post on behalf of the respondent as the requisite authority was not delegated to him. Since the applicant was not employed by the respondent, it follows that she was not an employee of the respondent.
[19] As the applicant was not an employee of the respondent, the ELRC has no jurisdiction to arbitrate this dispute.
RULING
[20] In the circumstance, I make the following ruling:
17.1The applicant was not an employee of the respondent.
17.2The ELRC does not have jurisdiction to arbitrate this dispute.
17.3There is no order as to costs.
Signature:
Commissioner:
Leon Pillay
Sector:
Education
Province: KwaZulu-Natal
Applicant: True-Love Bonakele Shozi
Respondent: Department of Education – KwaZulu-Natal
Issue: Unfair Labour Practice - Probation
Venue: Durban Teachers Centre
Award Date: 20 October 2010
Arbitrator: S.N.Pillay
Arbitration Award
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Panellist: S.N.Pillay
Case No.: PSES631-09/10KZN
Date: 20 October 2010
In the ARBITRATION between
True-Love Bonakele Shozi
(Union/Applicant)
and
Department of Education – KwaZulu-Natal
(Respondent)
Union/Applicant’s representative:
Unrepresented
Union/Applicant’s address:
Telephone:
Telefax:
E-mail:
Respondent’s representative:
Peter Jenkins
Respondent’s address:
Telephone:
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
[1] This arbitration hearing was set down for the 8th of October 2010 at the Durban Teachers’ Centre, College Rd., Durban.
[2] The applicant, True-Love Bonakele Shozi, appeared in person and was unrepresented whilst the respondent was represented by Mr. Peter J. Jenkins, a Deputy Chief Education Specialist responsible for Employee Relations at the respondent.
[3] The respondent’s representative raised two preliminary matters viz.
i. That the applicant was not appointed to any post within the respondent hence the applicant was not an employee of the respondent.
ii. That the respondent did not dismiss the applicant.
ISSUE TO BE DECIDED
[4] Whether the applicant was an employee of the respondent and if so found, I am to determine whether the applicant was unfairly dismissed by the respondent. If found that the applicant was unfairly dismissed by the respondent, I am to determine the appropriate relief to award to the applicant.
BACKGROUND TO THE ISSUE
[5] It was the applicant’s case that she was employed by the respondent at St. Nivards Primary School from the 11th of January 2010 and that she was unfairly dismissed at the end of January 2010. The applicant was not paid for the period that she worked.
[6] The respondent’s case is that the applicant was not appointed to a post within the respondent and that if the principal of the school called the applicant to commence work at the school, the principal had not acted under the auspices of the respondent. The applicant was not an employee of the respondent and the respondent had not dismissed the applicant.
SURVEY OF EVIDENCE AND ARGUMENT
[7] A 4-page document was submitted by the respondent and the applicant accepted the document to be what it purported to be.
The Applicant’s Evidence
[8] The applicant testified under oath and the relevant aspects of her testimony are summarised hereunder.
8.1 On the 9th of December 2009, the applicant received a call from Mr. Khanyile, the principal of St. Nivards Primary School, for the applicant to attend an interview for a post at the school.
8.2 On the 10th of December 2010, the principal called the applicant back and informed the applicant that she was successful and got the post at the school. The post was a substitute post because the incumbent had passed away and the applicant was to occupy the post until the post was advertised and filled.
8.3 The applicant commenced duties at the school on the 11th of January 2010 and the principal gave her some forms to complete. The forms were to be taken to the Ward Manager in order for the applicant to be paid.
8.4 The applicant completed the forms and the principal indicated that he would give the forms to Ms. Zamisa, who would have to sign the forms.
8.5 Subsequently, on a Friday, the principal indicated to the applicant that Ms. Zamisa did not sign the forms.
8.6 On Monday, the 1st of February 2010, whilst the applicant was on her was to school, the principal stopped the applicant and informed her that he could not allow her to resume duty.
8.7 The applicant was not paid for the period that she worked. She heard nothing further from the respondent.
8.8 Under cross examination the applicant indicated that:
8.8.1 She placed her C.V. at various schools for any suitable vacancy that arose at that school.
8.8.2 When a post became available the applicant would be called.
8.8.3 She did not have a SACE registration number. She did not know that in terms of Section 21(2) of the SACE Act, ‘No person may be employed as an educator by any employer unless the person is registered with the council.’
8.8.4 The applicant did not dispute that the principal was an ex-officio member of the SGB.
8.8.5 There were about 12 persons on the panel of interviewers and she did not know the capacity in which each panellist sat.
8.8.6 The applicant was previously employed by the SGB at Naidoo Memorial Primary School. The post was a SGB post.
8.8.7 The principal of the school informed the applicant that the post at St. Nivards was a department post.
8.8.8 She completed the application forms (Bundle A) after she started work at the school.
8.8.9 She confirmed her signature on page 4 of the document and indicated that the principal told her to backdate the form to the date she started work, ie. 11 January 2010.
8.8.10 She conceded that the form constituted an application for a post.
8.8.11 She further agreed that the principal did tell her that she did not get appointed because Zamisa did not sign the forms.
8.8.12 The applicant left a SGB post at Naidoo Memorial because she was told that the post at St. Nivards was a state-paid post.
The Respondent’s Evidence
[9] The respondent’s first witness was Mr. Khanyile, the principal of St. Nivards Primary School. He testified under oath and the relevant aspects of his testimony are summarised hereunder.
9.1 He called the applicant for an interview at the school
9.2 All applications for the post were received at school
9.3 The post was advertised at satellite offices, at school, and in the local area.
9.4 The vacancy at the school was reported to the SEM and the witness informed the unions, viz. SADTU and NATU.
9.5 The panel of interviewers were made up of the School Management Team members, SGB members and trade union representatives.
9.6 There were 2 vacancies at the school at that time.
9.7 The applicant was one of the candidates with the top score at the interview.
9.8 After the interview the panel deliberated on which of the candidates to appoint. They agreed that the applicant was one of the persons to be appointed and the witness contacted the applicant on behalf of the School Management Team.
9.9 The applicant started work at the school on the 11th of January 2010.
9.10 The applicant was not appointed by the department but by the school because the school and not the department advertised the post.
9.11 The witness identified Bundle A as the document that is given to every teacher appointed to a school.
9.12 The applicant started work in January hence there was no need to backdate the form.
9.13 The witness confirmed that clause 16 on page 2 of the bundle was left blank hence the applicant could not be appointed by the respondent as the applicant was not a member of SACE.
9.14 The witness confirmed that he gave the applicant the form as the head of the institution and he acted on behalf of the respondent.
9.15 The witness outlined the steps in the employment of an educator as follows:
9.15.1 Vacancy is reported to the SEM.
9.15.2 Principal is given the authority to advertise the position.
9.15.3 SMT and SGB are informed of the vacancy.
9.15.4 Unions are invited to the short-listing process and the interviews.
9.15.5 Interviews are held.
9.15.6 Successful applicants are telephoned and requested to assume duty.
9.15.7 On arrival at the school to assume duty, the educator is given the ‘Application for Employment’ form to fill. (Bundle A)
9.15.8 The form is completed and together with assumption of duty forms and the qualification documents, is submitted to the SEM for endorsement.
9.15.9 It is thereafter submitted to the circuit office.
9.15.10 The letter of appointment then comes from the department, which occurs much later.
9.15.11 If there is some hurdle in the process that precludes the educator from being appointed, the appointment is stopped.
9.16 At the end of January 2010, the SEM informed the witness that the applicant did not qualify for appointment. The witness then requested the applicant to stop tendering service at the school because she (applicant) would not be paid, as the department did not appoint her.
9.17 The applicant was not appointed by the responded.
9.18 Under cross examination, the witness indicated that:
9.18.1 He did tell the witness that she would be paid by the department.
9.18.2 He did ask the applicant to backdate the application form to the day she started work.
9.18.3 He could not remember asking the applicant about SACE.
9.18.4 He did call the applicant and tell her not to take the transport to go to school
9.19 Under re-examination the witness
9.19.1 Indicated that he usually asks applicants about SACE registration.
9.19.2 Clauses 2 & 3 on page 3 of the bundle were in conflict.
9.19.3 He was aware that the applicant was studying towards a relevant qualification.
9.19.4 He believed that the applicant did have a degree.
[10] The respondent’s second witness was Ms. Zamisa. She testified under oath and the relevant aspects of her testimony are summarised hereunder.
10.1She was the Ward Manager of the ward in which St. Nivards Primary School was situated.
10.2She was aware of the vacancies at the school due to the death of an educator.
10.3The process of appointment to a post at the respondent was as follows.
10.3.1 The school communicates with the Ward Manager about the vacancy at the school.
10.3.2 When approved, the ward manager issues a form that is completed and signed by the ward manager.
10.3.3 The vacancy is then advertised at schools, shops, etc.
10.3.4 Interested persons apply for the post usually within 10 days and applications are usually sent to the principal.
10.3.5 Applications are sifted and the applicants that were qualified to fill the post are identified.
10.3.6 Short-listing and interviewing occurs thereafter.
10.3.7 When interviews are complete but before the person assumes duty, the documents are submitted to the ward manager who verifies that all details are correct.
10.3.8 The principal is then instructed to inform the successful applicant, and the applicant then assumes duty.
10.3.9 When the successful applicant assumes duty, the respondent is advised accordingly and information for salaries, is processed.
10.4The principal, Mr. Khanyile, took the applicant’s and another form to the witness to check and sign.
10.5One form was okay and the witness signed but the other application was not approved because the applicant did not have the required minimum qualifications.
10.6The principal tried to convince the witness to sign the form because the applicant was already on duty.
10.7The witness informed the principal that he had no authority to appoint the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
[11] This applicant’s entire case turns on whether she was an employee of the respondent or not. If I find that the applicant was an employee then it may follow that the applicant was dismissed and that the dismissal may have been unfair.
[12] From the evidence and argument of the applicant, she believed that the principal of the school, Mr. Khanyile, acted on behalf of the respondent, and that he had the necessary authority to appoint the applicant to the post.
[13] The uncontested evidence of both the principal of the school and the ward manager was that the principal did not have the necessary authority to appoint the applicant to a departmental post at the school.
[14] Clearly the principal acted outside the scope of his authority in engaging the services of the applicant in the current case. Whilst his testimony was contradictory in many respects, he did not dispute that he informed the applicant that she should assume duty at St. Nivards Primary School and that the post the applicant was to occupy was a departmental post. This caused the applicant to be misled into believing that the respondent was her employer and that the principal had the necessary authority to act on behalf of the respondent.
[15] After the applicant assumed duty at the school, she was requested to complete an application form for employment, and to submit copies of her qualifications, which were to be submitted to the ward manager for approval. The respondent argued that the applicant ought to have known at this stage that the principal of the school did not have the authority to appoint her to the post and that her employment was subject to the approval of the ward manager. Whilst I agree with the respondent, I do not believe that much will turn on this fact because the applicant was already rendering services at the school prior to the applicant being requested to complete the forms.
[16] The determination that I am required to make is whether or not the respondent can be held to be the employer of the applicant owing to the conduct of the principal of the school, when he engaged the services of the applicant to fill a vacant post. Whilst the respondent and/or the principal, as an employee of the respondent, may be vicariously liable for damages in delict, I do not believe that the principal, acting without the necessary authority, could have caused the respondent to become the employer of the applicant. This would cause utter chaos within the respondent and have serious financial implications if the respondent is found to be the employer of individuals who are merely placed into posts by the respondent’s employees to whom such authority was never delegated.
[17] The procedure outlined by the principal and the ward manager, which was similar in all material respects, was not challenged by the applicant. It confirms that the authority to appoint persons was not delegated to the principal. Although evidence was led that the applicant failed to meet the minimum requirements for appointment and therefore was precluded from being appointed, I do not believe that is relevant to this dispute. I am not required to determine whether or not the respondent was correct in its decision not to appoint the applicant. I am required to determine whether or not the applicant was appointed to the post by the respondent and thereafter dismissed by the respondent.
[18] Whilst I do have sympathy for the applicant who was misled by the principal of the school, I find that that the applicant was not appointed to the post by the respondent. Based on the evidence led, there is no provision by which the principal could have appointed the applicant to the post on behalf of the respondent as the requisite authority was not delegated to him. Since the applicant was not employed by the respondent, it follows that she was not an employee of the respondent.
[19] As the applicant was not an employee of the respondent, the ELRC has no jurisdiction to arbitrate this dispute.
RULING
[20] In the circumstance, I make the following ruling:
17.1The applicant was not an employee of the respondent.
17.2The ELRC does not have jurisdiction to arbitrate this dispute.
17.3There is no order as to costs.
Signature:
Commissioner:
Leon Pillay
Sector:
Education