Award  Date:
9 September 2016
Case Number: PSES626-15/16NW
Province: North West
Applicant: MOATSHE A N
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Provision of Benefits
Venue: offices of the respondent in Rustenburg
Award Date: 9 September 2016
Case Number: PSES626-15/16NW
Date of Award: 09 September 2016

In the ARBITRATION between

(Applicant/ Employee)


(Respondent/ Employer)


1. This matter was heard in the offices of the respondent in Rustenburg on 23 August 2016. The applicant, Ms. A.N. Moatshe attended the hearing and represented herself. Ms. B. Phulwane, an official of North West District represented the respondent. The proceedings were electronically recorded. The applicant led her own testimony and the respondent did not call any witnesses. The respondent entered into evidence bundles of documents in substantiation of its case.
2. The dispute was referred in terms of clause 23 of the collective agreement 1 of 2006 in terms of the Constitution: Negotiation, Consultation and Dispute Resolution Procedures (Annexure B) which provides that a panellist appointed on the panel of the ELRC has all the powers granted to an arbitrator in terms of Sections 138 and 142 of the Labour Relations Act 66 of 1995 as amended (“the LRA”). This enforcement power by the general secretary of the ELRC includes non-compliance with the provisions of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) as well as non-compliance with a contract of employment.
3. I therefore have the power to enforce compliance of any term or provision contained in a contract of employment or contained within the BCEA. Such matters are not conciliated prior to arbitration. The current case falls under this specific provision.


4.The applicant’s assertion was that she was employed by the respondent on a temporary basis to replace a permanent teacher who went on maternity leave for a period of four months. The respondent failed to pay her salaries for the said period.
5. The respondent’s contention was that the applicant was never employed by the department and is thus not entitled to any remuneration.


6. Whether there was an employment relationship between the applicant and the respondent and, if so, whether the applicant is entitled to a salary from 25 September 2014 to 13 February 2015 respectively;


7. The applicant’s testimony in essence was that she filled in the application form on 24 September 2014 and on 25 September 2014 she started working until 13 February 2015. During this period the respondent failed to pay her salaries. She enquired with the principal and she was advised that her post has been approved and her salaries will be paid. In January 2015 the principal told her that her qualifications were not approved. He advised her to find someone else from Gauteng who has a Persal number where her salaries could be paid. She refused this arrangement since she had her own Persal number and the arrangement was not in line with the respondent’s policy. She was not issued with the approval documents and the appointment letter for the post.

8. The principal could not provide her with any straight answers hence she ended up referring the matter to the District and later to the ELRC. She was not issued the letter dated 10 November 2014 from the department which reads, “Kindly be informed that educators with ADULT EDUCATION QUALIFICATIONS are not appointable in the mainstream.” She was further never told about the governing body when she was appointed.


9. The respondent argued that the applicant was not their employee and thus not entitled to any salary from the department. The applicant could not provide any document to support her assertion that she was appointed by the department. Schools schools have two employers. Some educators are employed by the respondent and others by the governing body of the school. The principal had no authority to appoint the applicant. The HOD is the appointing authority of the respondent who delegates its powers to the district director as contemplated in s6 (3) of the Employment of Educators Act (EEA).


10. The relief sought by the applicant was an order that the respondent should pay her salaries for the period of 25 September 2014 – 13 February 2016.

11. The respondent’s assertion was that there was no employment relationship between the department and the applicant. It is common cause that the applicant applied for the position as per her testimony and the documentary evidence.

12. In the normal cause of events, a job applicant would apply for a post and await appointment prior to commencing her duties. The applicant’s version suggests that the application was just a formality in that on the day of completing the forms the principal told her to resume duties the following day.

13. It was held in Bayat v Durban Institute of Technology (2006) 27 ILJ188 (CCMA) that, “where the offer of employment is conditional upon the fulfilling of a future uncertain event, no employment relationship comes into being until the condition was fulfilled.”

14. In this case the applicant was never issued with any offer of employment. She did not receive approval documents nor was she issued a contract of employment. It is provided in section 3 (1 )(b) of the EEA that,” the HOD shall be the employer of educators in the service of the provincial department basic education posts on the educator establishment of that department for all purposes of employment.”

15. I accept the respondent’s argument that the principal is not the employer and did not have authority to appoint the applicant. Section 6 (1) of the EEA provides that, “subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-
(a) in the service of the Department of Education shall be made by the Director-General; or
(b) in the service of a provincial department of education shall be made by the Head of Department.
16. Documentary evidence presented before me shows that the applicant’s appointment was not approved due to her qualifications (Adult Education Qualifications) were such that she was not appointable in the mainstream.

17. It was held in Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839(LAC) that, “where an employee assumes duties without written permission from the Department, such assumption of duties would not establish an employment relationship per se.”

18. It follows then that there was no employment relationship between the parties and the applicant is thus not entitled to any salaries from the department in relation to this matter.

19. There was no employment relationship between the applicant and the respondent and the applicant is thus not entitled to the salaries claimed in this application.
20. This application is dismissed.

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