Case Number: PSES 529 13/14 WC
Province: Western Cape
Applicant: NAPTOSA obo T Voight
Respondent: Department of Education, Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Cape Town
Award Date: 19 March 2014
Arbitrator: S H Christie
IN THE EDUCATION LABOUR RELATIONS COUNCIL
IN THE ARBITRATION
NAPTOSA obo T Voight
Department of Education (Western Cape)
CASE NUMBER: PSES 529 13/14 WC
DATE/S OF HEARING: 17 February 2014
DATE AWARD SUBMITTED: 19 March 2014
NAME OF PANELLIST: S H Christie
DETAILS OF HEARING AND REPRESENTATION
The arbitration hearing was held at the premises of the Department in Cape Town on 17 February 2014. The applicant was represented by Mr Faez Tassiem of NAPTOSA, with Mr Glen Snyman as observer, and the respondent by Ms Nuraan Price, a Labour Relations Officer with Mr Freddy Scholtz Assistant Director in the Department of Labour Relations.
ISSUES IN DISPUTE
The Applicant claims that the Department has committed an unfair labour practice in terms of section 186 (1)(a) of the Labour Relations Act.
SUMMARY OF EVIDENCE AND ARGUMENT
The facts were common cause. The applicant qualified as a teacher at the end of 2012. She responded to an advertisement for a contract post at Greyton Primary School for the period 1 January to 31 December 2013. She was interviewed and advised by the principal that she had been successful and was to start on 1 January, 2013.
The contract was expected to be a 12-month contract but broken up into 4 separate three-month contracts. She was not given a formal contract.
At the end of January 2013 the applicant was not paid. She approached the principal Mr Hans. He made enquiries and on 12 February 2013 he told her that he ‘had made a mistake’. The District Office of the Respondent had not given him the authority to make the appointment. In an attempt to settle the matter Mr Hans paid the applicant R5000 personally and offered to pay the balance in instalments of R1000 per month. She was not satisfied with this and declared a dispute.
The principal made efforts to find Ms Voight alternative employment and she eventually found work in Paarl.
The union has misconstrued the provisions of section 186 (1)(a) on which he relies. That section defines dismissal where “an employer has terminated a contract of employment with or without notice”. In order for there to be a dismissal, a claimant must show that she or he was employed. There was never a contract of employment between the respondent and the applicant as it is not disputed that the principal of Greyton had no authority to make the appointment on behalf of the respondent.
Section 213 of the Labour Relations Act (“LRA”) defines an employee as including (b) a “person who in any manner assist in carrying on or conducting the business of an employer.” The applicant did not have a valid contract of employment with the respondent because the principal of Greyton Primary School Mr Hans did not have the necessary powers in terms of the respondent’s delegations to appoint the applicant. However, she worked for the respondent in its public school and rendered service to the respondent and hence falls within the scope of the extended definition in the LRA.
In Phera v The Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC) the appellant assumed duties at a public school without at first securing “written permission from the District Manager” and failed in his attempt to secure payment for the five days that he worked at the school. Phera approached the ELRC alleging (for reasons that are not explained in the judgment) that the Gauteng Department of Education had committed an unfair labour practice. The arbitrator ruled that the ELRC had no jurisdiction to determine the dispute because the respondent had not appointed the applicant and therefore there was no employment relationship. The arbitrator appears not to have considered whether the extended definition of “employee” could apply to the common cause facts. It was not necessary to do so. Phera applied for a post, was interviewed and told he had been successful. Thereafter he was given an application form. The form clearly stated “URGENT; EDUCATORS ARE NOT ALLOWED TO ASSUME DUTY WITHOUT TO WRITTEN PERMISSION OF THE DISCTRICT MANAGER.” He commenced teaching a week later. He voluntarily assumed the risk that his appointment would not be confirmed. Furthermore Phera had previously worked for the Gauteng Department of Education and had been dismissed.
The facts in this case are distinguishable from those in Phera. A newly qualified teacher, having no experience of working let alone in the public sector, she was entitled to assume in good faith that the principal did have the necessary authority to appoint her and to draft the document on 28 January 2013 on behalf of the respondent. She could not have been aware of the internal rules of the respondent and would not therefore have been bound to enquire whether the conduct of the principal in advertising the post, interviewing the applicant and thereafter issuing the 28 January document may have been irregular.
I find that the applicant was an employee within the meaning of part (b) of the definition of an employee even though the respondent was not aware that the principal had purported to bind it. What may have transpired between the principal and the respondent is not known. I consider that she is entitled to be paid for the work that she did in January 2013, less the R5000, 00 that she received from the principal Mr Hans. [The respondent would of course be entitled to recover the monies due to the applicant from the principal.]
The respondent is ordered to pay the applicant R16 141, 84 less income tax before the end of April 2014.
S H Christie