PSES 615-11/12 KZN
PSES 615-11/12 KZN
Award Date:
18 June 2012
Case Number: PSES 615-11/12 KZN
Province: KwaZulu-Natal
Applicant: MW Ngcobo obo MM Nkala
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Empangeni
Award Date: 18 June 2012
Arbitrator: AS Dorasamy
IN THE ARBITRATION
CASE NO.: PSES 615-11/12 KZN
IN THE MATTER BETWEEN :-
M W NGCOBO O B O M M NKALA APPLICANT
AND
DEPARTMENT OF EDUCATION-KZN RESPONDENT
________________________________________________________________
DATE : 30 MAY 2012
TIME : 10H00
VENUE : DOE KZN – REGIONAL OFFICE
EMPANGENI
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
M N NGCOBO (ATTORNEY)
IN PERSON
RESPONDENT
A N N KHOZA
.
ARBITRATOR'S AWARD
1. The arbitration proceedings commenced at 10h00 on the 30 May 2012.
ARBITRATOR'S SUMMARY
HEARING AND REPRESENTATION
2. The Mr M N Ngcobo an attorney represented the applicant and Ms A N N Khoza represented the respondent.
3. The respondent raised a Point In Limine and the parties agreed as follows:
3.1 No oral evidence will be tendered.
3.2 The respondent /employer will serve its Heads of Arguments on the on commissioner and applicant on or before 1 June 2012
3.3 The applicant/ employee will serve its Heads of Arguments (opposing) on the commissioner and respondent on or before 8 June 2012
3.4 The respondent will serve its answering Heads of Arguments on the commissioner and applicant on or before 12 June 2012. (NO ANSWERING HOA SUBMITTED)
3.5 THE APPLICANT MADE SUBMISSIONS ON THE 14 JUNE 2012
BACKGROUND
The applicant was on a fixed term contract with the respondent.
He was dismissed by the respondent and seeks a finding that his dismissal was unfair..
The respondent raised a Point in Limine that there was no dismissal but that the applicant’s contract had ended.
APPLICANT’S SUBMISSION
The manner in which the dispute is referred, the Commissioner has to determine whether there was a dismissal or not and whether the dismissal was fair or unfair.
It is the contention of the employer that there was no dismissal in the matter; there was no unbecoming behaviour displayed by the applicant and there was no expectation from the applicant that his contract would be renewed because he knew or ought to have known that he was a replacement for Zikhali.
His dispute is about the post that he never got at Hlungwini when he was serving in it. Therefore this should have been referred to the Council as Unfair Labour Practice instead. But even then post was not vacant because he was a locom tenant.
Even the Post Provisioning Norm of the school had dropped to an extent that one educator who was in a vacant post had to be declared in excess i.e. was expected to leave the school (Annexure C).
The applicant claims to have been dismissed on the 13th April 2011, but from the contract that he signed he was a substitute for Zikhali F.N. who was acting in a senior position (locom tenant) which had a starting date i.e. 20.01.2011 and a stop date i.e. 01.04.2011 (Annexure B – Assumption of duty form).
The applicant claims that the principal did not follow the relevant procedure to dismiss him. However it is the employer’s contention that the applicant was not dismissed and therefore the relevant procedure he is referring to could not have been used i.e. the disciplinary procedure simply because there was no misconduct but the term of the contract had expired. In fact the principal was not dismissing him on the 13th April 2011; instead she was reminding him of his contract which he signed on the 20th April 2011. It should be taken into consideration that the 1st April 2011 was the last day of the first term in 2011 and school were due to reopen on the 11th April 2011. The principal was puzzled when he saw the applicant within the premises to an extent that she called a special meeting to enquire from other staff members if they knew why he was still within the school premises (Annexure C).
Even if it was a vacant post, the applicant would not have been granted a protected status in terms of HRM Circular no. 100 of 2011, paragraph 2 because he was not studying in 2010 he only registered in 2011 but submitted his proof of registration well after his assumption of duty was sent to the Service Centre for processing (Annexure D).
RESPONDENT’S SUBMISSION IN RESPECT OF THE POINT IN LIMINE
SUMMARY FACTS IN SUPPORT OF APPLICANT:
The applicant started to work for Respondent as a temporary
educator for post level 1 in January 2010 earning plus or minus R4 500-00 per month under persal number 63006979.
The applicant was employed as such at Hlungwini Primary School
as a replacement for one Zikhali F.N. persal number 61297275 who had been promoted to a post of acting HOD.
At all material times, the applicant was required to sign Notice of
Assumption of Duty by the School Principal whom was then required to submit the aforesaid Notice to the Ulundi Regional Office of the Respondent.
The applicant has alleged that in adhering to the above, applicant
encountered difficulty in that the School Principal used to force the applicant to sign Notices of Assumption of Duty without specific dates on them, and further, the School Principal would sometimes submit those Notices late to the Regional Office of the Respondent. As a result of, the applicant would sometimes receive less salary for days having been worked because of the incorrect dates on his Notices of Assumption of Duty which has always been the crux of the dispute. The applicant tendered proof to that effect which respondent never contested during the proceedings.
See: Para 7 (b) ELRC FORM E1
On the 13 April 2011, the applicant was just verbally informed by
the School Principal that his services were no longer needed by the School without any reasons or notice detailing full explanation for terminating his employment with respondent.
B. ISSUES IN DISPUTE:
15. That applicant started to work for respondent on the 01/01/2011
to 28/02/2011.
That applicant’s employment services got terminated on completion
of a specified period of time or when the alleged PPN Certificate was issued by Respondent.
SUBMISSIONS BY APPLICANT:
16. The applicant unequivocally submits that he started to work for respondent in January 2010 to the last day when he got dismissed by the respondent.
17. It is the applicant’s contention that the respondent has failed to discharge its onus to prove that the dismissal was not unfair. Further, applicant submits that his dismissal was unfair because it was not effected for a fair reason and in accordance with a fair procedure, and it also failed to comply with prescribed notice period enshrined in legislation governing employment.
See: Labour Relations Act 66 of 1995 (hereinafter referred to as LRA) s185 (a) read with s37 of the Basic Conditions of Employment Act 75 of 1997.
18. The applicant unequivocally submits that during his tenure with the respondent he was never summoned to any official meeting about any issued PPN Certificate in respect of Hlungwini Primary School indicating a decrease in the number of pupils enrolled. Further, should there be such a PPN Certificate in existence, the applicant further submits that it was the fundamental responsibility of the School Principal to bring it to applicant’s attention by conveying an official meeting.
19. Further, even if such PPN Certificate existed, applicant submits that he continued to be employed by the respondent as a temporary educator and the replaced educator namely Zikhali F.N. also continued to act as HOD up until his date of dismissal. Thus, a legitimate and reasonable expectation was given to the applicant that he would remain under the employ of respondent up until end of the year 2011 as a temporary educator.
20. It is submitted that the respondent has onus to prove that the applicant has knowledge of the existence of such PPN Certificate which purports to bring about his termination of employment with respondent.
See: LRA s186 (1) (b)
21. In conjunction with:
SA Rugby (Pty) Ltd v CCMA & others 2006 (1) BLLR 27 (LC) and
Mediterranean Woollen Mills (Pty) Ltd v SA Clothing and Textile Workers Union (1998) 19 ILJ 731 (SCA)
McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC)
22.1. The applicant had a right not to be unfairly dismissed by respondent.
22.2 The practices adopted by the School Principal towards applicant are against the express purpose of the LRA.
See: s1 LRA
22.3 Everyone has the right to fair labour practices.
See: The Constitution of South Africa (1996) s23 (1)
23. It is submitted that the actions and omissions of the respondent violated the applicant’s right to be treated with dignity, social justice, fairness and respect and was therefore unconstitutional.
24. It is submitted that this Honourable Council ought to find in favour of the applicant with costs.
ISSUE TO BE DECIDED
I am to determine the following issues:
25.1 Whether the applicant was dismissed that is whether the
applicant had established the existence of the dismissal.
25.2. Whether the applicant may be re-instated and employed on
a permanent basis.
SURVEY OF EVIDENCE AND ARGUMENT
26. The applicant in this matter seeks a finding that his dismissal is unfair.
27. The respondent raised a Point In Limine that the applicant was not dismissed but that his contract came to an end.
28. The respondent prays for the matter to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
30. Firstly the issue to be determined is whether the applicant was dismissed or not. The applicant was employed by the respondent on a fixed term in place of Ms Zikhali F.N.
31. The applicant was aware that his contract was on a temporary basis and this was further confirmed by his submissions.
32. The fact that the applicant’s temporary contract had reached its expiry date coupled with the fact that he has not submitted evidence of his registration with SACE the applicant cannot claim to have a reasonable expectation that his contract would be extended.
33. As a consequence of the above I determine that the applicant was not dismissed but that his temporary contract had reached its end date.
34. Secondly I intend dealing with the matter for completeness. The applicant cannot be appointed on a permanent basis. In order for the applicant to be appointed he must satisfy the requirements dealing with appointments and this aspect is covered in Chapter 3 of the Employment of Educator Act 76 of 1998. The crucial provision is that in terms of section (3) (b) and read as follows:
The Head of Department may only decline the recommendation of the governing body of the public school……………if-
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators (SACE).
35. The question that arise is what is the requirement to qualify for registration with SACE
The following is recorded in Chapter 3 Of the South African Council of Educators Act 31 of 2000.
REGISTRATION OF EDUCATORS
Compulsory registration of educators
21. (1) A person who qualifies for registration in terms of this Act must
register with the council prior to being appointed as an educator.
(2) No person may be employed as an educator by any employer
unless the person is registered with the council.
36. In order not to prolong the determination the following must be noted:
37. The applicant has not shown any evidence of his registration with SACE.
As a consequence of the above and bearing in mind the provisions of
Section 21 (2) above the applicant cannot be employed as an educator by the respondent.
Therefore the relief sought by the applicant is not possible resulting in the application/matter being dismissed.
AWARD
38. The applicant was not dismissed but that his temporary contract had ended.
39. The matter is dismissed.
40. There is no order as to costs.
DATED AT DURBAN ON THIS 18 DAY OF JUNE 2012.
AS DORASAMY
ARBITRATOR
Province: KwaZulu-Natal
Applicant: MW Ngcobo obo MM Nkala
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Empangeni
Award Date: 18 June 2012
Arbitrator: AS Dorasamy
IN THE ARBITRATION
CASE NO.: PSES 615-11/12 KZN
IN THE MATTER BETWEEN :-
M W NGCOBO O B O M M NKALA APPLICANT
AND
DEPARTMENT OF EDUCATION-KZN RESPONDENT
________________________________________________________________
DATE : 30 MAY 2012
TIME : 10H00
VENUE : DOE KZN – REGIONAL OFFICE
EMPANGENI
ARBITRATOR : A S DORASAMY
ATTENDANCE/S : APPLICANT
M N NGCOBO (ATTORNEY)
IN PERSON
RESPONDENT
A N N KHOZA
.
ARBITRATOR'S AWARD
1. The arbitration proceedings commenced at 10h00 on the 30 May 2012.
ARBITRATOR'S SUMMARY
HEARING AND REPRESENTATION
2. The Mr M N Ngcobo an attorney represented the applicant and Ms A N N Khoza represented the respondent.
3. The respondent raised a Point In Limine and the parties agreed as follows:
3.1 No oral evidence will be tendered.
3.2 The respondent /employer will serve its Heads of Arguments on the on commissioner and applicant on or before 1 June 2012
3.3 The applicant/ employee will serve its Heads of Arguments (opposing) on the commissioner and respondent on or before 8 June 2012
3.4 The respondent will serve its answering Heads of Arguments on the commissioner and applicant on or before 12 June 2012. (NO ANSWERING HOA SUBMITTED)
3.5 THE APPLICANT MADE SUBMISSIONS ON THE 14 JUNE 2012
BACKGROUND
The applicant was on a fixed term contract with the respondent.
He was dismissed by the respondent and seeks a finding that his dismissal was unfair..
The respondent raised a Point in Limine that there was no dismissal but that the applicant’s contract had ended.
APPLICANT’S SUBMISSION
The manner in which the dispute is referred, the Commissioner has to determine whether there was a dismissal or not and whether the dismissal was fair or unfair.
It is the contention of the employer that there was no dismissal in the matter; there was no unbecoming behaviour displayed by the applicant and there was no expectation from the applicant that his contract would be renewed because he knew or ought to have known that he was a replacement for Zikhali.
His dispute is about the post that he never got at Hlungwini when he was serving in it. Therefore this should have been referred to the Council as Unfair Labour Practice instead. But even then post was not vacant because he was a locom tenant.
Even the Post Provisioning Norm of the school had dropped to an extent that one educator who was in a vacant post had to be declared in excess i.e. was expected to leave the school (Annexure C).
The applicant claims to have been dismissed on the 13th April 2011, but from the contract that he signed he was a substitute for Zikhali F.N. who was acting in a senior position (locom tenant) which had a starting date i.e. 20.01.2011 and a stop date i.e. 01.04.2011 (Annexure B – Assumption of duty form).
The applicant claims that the principal did not follow the relevant procedure to dismiss him. However it is the employer’s contention that the applicant was not dismissed and therefore the relevant procedure he is referring to could not have been used i.e. the disciplinary procedure simply because there was no misconduct but the term of the contract had expired. In fact the principal was not dismissing him on the 13th April 2011; instead she was reminding him of his contract which he signed on the 20th April 2011. It should be taken into consideration that the 1st April 2011 was the last day of the first term in 2011 and school were due to reopen on the 11th April 2011. The principal was puzzled when he saw the applicant within the premises to an extent that she called a special meeting to enquire from other staff members if they knew why he was still within the school premises (Annexure C).
Even if it was a vacant post, the applicant would not have been granted a protected status in terms of HRM Circular no. 100 of 2011, paragraph 2 because he was not studying in 2010 he only registered in 2011 but submitted his proof of registration well after his assumption of duty was sent to the Service Centre for processing (Annexure D).
RESPONDENT’S SUBMISSION IN RESPECT OF THE POINT IN LIMINE
SUMMARY FACTS IN SUPPORT OF APPLICANT:
The applicant started to work for Respondent as a temporary
educator for post level 1 in January 2010 earning plus or minus R4 500-00 per month under persal number 63006979.
The applicant was employed as such at Hlungwini Primary School
as a replacement for one Zikhali F.N. persal number 61297275 who had been promoted to a post of acting HOD.
At all material times, the applicant was required to sign Notice of
Assumption of Duty by the School Principal whom was then required to submit the aforesaid Notice to the Ulundi Regional Office of the Respondent.
The applicant has alleged that in adhering to the above, applicant
encountered difficulty in that the School Principal used to force the applicant to sign Notices of Assumption of Duty without specific dates on them, and further, the School Principal would sometimes submit those Notices late to the Regional Office of the Respondent. As a result of, the applicant would sometimes receive less salary for days having been worked because of the incorrect dates on his Notices of Assumption of Duty which has always been the crux of the dispute. The applicant tendered proof to that effect which respondent never contested during the proceedings.
See: Para 7 (b) ELRC FORM E1
On the 13 April 2011, the applicant was just verbally informed by
the School Principal that his services were no longer needed by the School without any reasons or notice detailing full explanation for terminating his employment with respondent.
B. ISSUES IN DISPUTE:
15. That applicant started to work for respondent on the 01/01/2011
to 28/02/2011.
That applicant’s employment services got terminated on completion
of a specified period of time or when the alleged PPN Certificate was issued by Respondent.
SUBMISSIONS BY APPLICANT:
16. The applicant unequivocally submits that he started to work for respondent in January 2010 to the last day when he got dismissed by the respondent.
17. It is the applicant’s contention that the respondent has failed to discharge its onus to prove that the dismissal was not unfair. Further, applicant submits that his dismissal was unfair because it was not effected for a fair reason and in accordance with a fair procedure, and it also failed to comply with prescribed notice period enshrined in legislation governing employment.
See: Labour Relations Act 66 of 1995 (hereinafter referred to as LRA) s185 (a) read with s37 of the Basic Conditions of Employment Act 75 of 1997.
18. The applicant unequivocally submits that during his tenure with the respondent he was never summoned to any official meeting about any issued PPN Certificate in respect of Hlungwini Primary School indicating a decrease in the number of pupils enrolled. Further, should there be such a PPN Certificate in existence, the applicant further submits that it was the fundamental responsibility of the School Principal to bring it to applicant’s attention by conveying an official meeting.
19. Further, even if such PPN Certificate existed, applicant submits that he continued to be employed by the respondent as a temporary educator and the replaced educator namely Zikhali F.N. also continued to act as HOD up until his date of dismissal. Thus, a legitimate and reasonable expectation was given to the applicant that he would remain under the employ of respondent up until end of the year 2011 as a temporary educator.
20. It is submitted that the respondent has onus to prove that the applicant has knowledge of the existence of such PPN Certificate which purports to bring about his termination of employment with respondent.
See: LRA s186 (1) (b)
21. In conjunction with:
SA Rugby (Pty) Ltd v CCMA & others 2006 (1) BLLR 27 (LC) and
Mediterranean Woollen Mills (Pty) Ltd v SA Clothing and Textile Workers Union (1998) 19 ILJ 731 (SCA)
McInnes v Technikon Natal (2000) 21 ILJ 1138 (LC)
22.1. The applicant had a right not to be unfairly dismissed by respondent.
22.2 The practices adopted by the School Principal towards applicant are against the express purpose of the LRA.
See: s1 LRA
22.3 Everyone has the right to fair labour practices.
See: The Constitution of South Africa (1996) s23 (1)
23. It is submitted that the actions and omissions of the respondent violated the applicant’s right to be treated with dignity, social justice, fairness and respect and was therefore unconstitutional.
24. It is submitted that this Honourable Council ought to find in favour of the applicant with costs.
ISSUE TO BE DECIDED
I am to determine the following issues:
25.1 Whether the applicant was dismissed that is whether the
applicant had established the existence of the dismissal.
25.2. Whether the applicant may be re-instated and employed on
a permanent basis.
SURVEY OF EVIDENCE AND ARGUMENT
26. The applicant in this matter seeks a finding that his dismissal is unfair.
27. The respondent raised a Point In Limine that the applicant was not dismissed but that his contract came to an end.
28. The respondent prays for the matter to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
29. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where the commissioner held that arbitration hearings constitutes a rehearing de novo on the merits.
30. Firstly the issue to be determined is whether the applicant was dismissed or not. The applicant was employed by the respondent on a fixed term in place of Ms Zikhali F.N.
31. The applicant was aware that his contract was on a temporary basis and this was further confirmed by his submissions.
32. The fact that the applicant’s temporary contract had reached its expiry date coupled with the fact that he has not submitted evidence of his registration with SACE the applicant cannot claim to have a reasonable expectation that his contract would be extended.
33. As a consequence of the above I determine that the applicant was not dismissed but that his temporary contract had reached its end date.
34. Secondly I intend dealing with the matter for completeness. The applicant cannot be appointed on a permanent basis. In order for the applicant to be appointed he must satisfy the requirements dealing with appointments and this aspect is covered in Chapter 3 of the Employment of Educator Act 76 of 1998. The crucial provision is that in terms of section (3) (b) and read as follows:
The Head of Department may only decline the recommendation of the governing body of the public school……………if-
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators (SACE).
35. The question that arise is what is the requirement to qualify for registration with SACE
The following is recorded in Chapter 3 Of the South African Council of Educators Act 31 of 2000.
REGISTRATION OF EDUCATORS
Compulsory registration of educators
21. (1) A person who qualifies for registration in terms of this Act must
register with the council prior to being appointed as an educator.
(2) No person may be employed as an educator by any employer
unless the person is registered with the council.
36. In order not to prolong the determination the following must be noted:
37. The applicant has not shown any evidence of his registration with SACE.
As a consequence of the above and bearing in mind the provisions of
Section 21 (2) above the applicant cannot be employed as an educator by the respondent.
Therefore the relief sought by the applicant is not possible resulting in the application/matter being dismissed.
AWARD
38. The applicant was not dismissed but that his temporary contract had ended.
39. The matter is dismissed.
40. There is no order as to costs.
DATED AT DURBAN ON THIS 18 DAY OF JUNE 2012.
AS DORASAMY
ARBITRATOR