Case Number: PSES101-12/13 KZN
Applicant: SADTU obo MS Mbhense
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Probation
Award Date: 27 December 2012
Arbitrator: Mlungisi Sabela
AT THE EDUCATION LABOUR RELATIONS COUNCIL
Commissioner: MLUNGISI SABELA
Case No.: PSES101-12/13KZN
Date of Award: 27/12/2012
In the MATTER between:
SADTU obo MS MBHENSE (Union / Applicant)
DEPARTMENT OF EDUCATION-KWA ZULU NATAL (Respondent)
DETAILS OF HEARING AND REPRESENTATION:
This matter was set down for an Arbitration hearing on 16 November 2012 at 09:30 at the Respondent’s offices at Ladysmith between SADTU obo MS MBHENSE, the Applicant and Department of Education-Kwa Zulu Natal, the Respondent.
The Applicant was represented by Mr M Hlengane union official from SADTU.
The Respondent was represented by Mr MN Zulu an assistant manager.
During the hearing parties submitted documents which I marked exhibits A to D.
ISSUE TO BE DECIDED:
Whether MS Mbhense (Mbhense) was dismissed or not.
Should dismissal be established I must determine whether such dismissal was
both procedurally and substantively fair or not.
BACKGROUND TO THE ISSUE:
Mbhense was employed by the Respondent on 14 June 2005 as an educator
earning R7400.00 a month.
His services were terminated on 29 August 2011.
SURVEY OF THE EVIDENCE AND ARGUMENT:
Applicant’s evidence and argument
Mr Hlengane submitted that at a pre-arb meeting it was agreed that certain documents would be supplied by the Respondent to the Applicant and had since not been supplied.
Mbhense was employed on a fixed term contract from 14 June 2005. He was offered a permanent status as appearing on page 17 of exhibit A. He was then given a protected status in terms of HRM Circular no 99 of 2010 appearing on page 10 of exhibit A and a letter on page 18. He was then served with three letters appearing on pages 16 and 25 of exhibit A and page 1 of exhibit B ending the contract.
Mbhense was not paid his salary from 29 August 2012 but was eventually paid after the last letter of termination. How ever there is a one month salary still outstanding. When his services were terminated it was as if he was a temporary employee despite letters converting his status to permanent.
The Applicant acknowledges that Mbhense was erroneously offered a permanence status and a protected status. They are disputing the manner in which the Respondent corrected the error by not affording Mbhense an opportunity to make submissions. The Respondent did not follow its own procedure in terminating a contract of a temporary educator. They are also disputing the reasons of terminating the services.
They do not dispute that when Mbhense completed the forms he stated that he was studying where as he was not studying.
The Respondent says services were terminated in terms of HRM Circular no 88 of 2011. But there are two more circulars like the one on page 11 of exhibit A. Item 3 and 4 of HRM Circular 89 of 2011 clarifies unoccupied posts.
Mbhense’s post was not vacant as it was occupied by him. He will not be calling any witness as every thing was explained on documents and they seek reinstatement from the date of dismissal with all benefits.
Respondent’s evidence and argument
Mr Zulu submitted that the Respondent did provide documents that were available to the Respondent and those not, it was practically not possible to provide them.
The Respondent will prove that Mbhense was not unfairly terminated. A letter offering him permanent status was written but there were certain conditions implemented. For an example Mbhense had to have a diploma and other requirements as mentioned in the letter. This was to avoid a mistake in respect of of a substantive nature of a contract. So that should there be a mistake by either party the contract became null and void.
There was a mistake which Mbhense that his status was not permanent. In 2011 Mbhense completed the convention form and falsified the information by stating that he was studying knowing very well that he was not. A letter of protected status was very clear as it was later discovered that Mbhense falsified the application. In terms of HRM Circular 89 of 2011 the requirements are as shown on item 2.1 and 2.3. Mbhense had to get a new appointment in 2012 and he did not meet the requirements.
The Respondent is not aware of any short payment.
Sifiso Alpheus Zulu testified that he is employed by the Respondent as human resources provisioning. He is familiar with a notification of termination of service on exhibit B addressed to Mbhense. This was correctly issued as Mbhense was a temporary educator employed on temporary basis. His contract was not renewed because of the circular on exhibit C. This circular does not allow that such a person as Mbhense be employed.
A temporary unprotected is some who can be terminated at any time when the need arise by being given 30 days notice.
A protected one is some studying towards attaining a qualification and would be given two years to pursue his studies. For an unprotected the period is annual. When the school principal recruits he stipulates that the person is from which date to which date. That post is a vacant post until it is filled by a qualified educator.
In terms of exhibit C Mbhense’s contract was not supposed to be renewed in
2012 but was renewed from January to May after approval by HOD (head of
department) as some of the educators had already assumed duties.
ANALYSIS OF EVIDENCE:
In terms of section 192 (1) of the Labour Relations Act 66 of 1995 in any
proceedings concerning any dismissal, the employee must establish the
existence of the dismissal. The standard of proof is on balance of probabilities
which mean the version of one party has to be more probable than that of the
other party. The Applicant had the onus to prove that he was dismissed.
Evidence has shown that Mbhense was employed as a temporary educator
which would be renewed at the beginning of the year. Through his representative
Mbhense conceded that his status to permanent was erroneously done.
HRM Circular no 89 of 2011 clearly stated in item 6 that no person that are in
possession of qualifications less than that stipulated in HRM 98 of 2010 will be
allowed to be employed as educators in any capacity. It is quite clear that the
Respondent only extended those contracts to May as some educators had
already assumed duties.
Mbhense did not have any qualification and his appointment was always on a
fixed term. The Applicant has accordingly failed to discharge the onus of proving
The Application is dismissed.
There is no order as to costs.