Case Number: PSES261-16/17LP
Applicant: MAVHUNGU ELVIS MANAGA
Respondent: Department of Education Limpopo
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Offices the Limpopo Department of Education, Polokwane
Award Date: 23 February 2017
Arbitrator: M.N MASETLA
Case number: PSES261-16/17LP
Date of the award: 23/02/ 2017
In the ARBITRATION between
MAVHUNGU ELVIS MANAGA Applicant
DEPARTMENT OF EDUCATION- LIMPOPO Respondent
THE DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in the arbitration hearing between Managa Muvhungu Elvis, the applicant, and the Department of Education- Limpopo, the respondent.
2. The arbitration was held under the auspices of the Education Labour Relations Council in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and the award is issued in terms of Section 138(7) of the LRA.
3. The arbitration hearing was scheduled for two days being the 16th and 17th February 2017 at the offices the Limpopo Department of Education, Polokwane.
4. The applicant was present and represented by Ms Ramango N.P, a union official from SADTU while the respondent was represented by Mr Makhema R, Labour Relations Manager.
ISSUES TO BE DECIDED
5. I am required to determine whether the applicant was dismissed or not.
6. If I find that the applicant was dismissed, I am further required to determine whether the dismissal was procedurally and substantively fair or not.
7. Appropriate relief.
BACKGROUND TO THE ISSUE IN DISPUTE
8. The applicant referred an unfair dismissal dispute to the ELRC on 10 August 2016. The matter was set down for conciliation / pre- arbitration meeting on 26 August 2016 and remained unresolved after conciliation. A certificate confirming non-resolution of the dispute was issued.
9. This matter was then scheduled for an arbitration process on 23 September 2016. The respondent submitted that the ELRC did not have jurisdiction to entertain the dispute because the applicant was previously dismissed in terms of section 14 (1) (a) and (2) of the Employment of Educators Act (EEA). Advocate Ronnie Bracks, ELRC Panellist, ruled that the Council had jurisdiction to hear the matter on 23 September 2016.
10. Dismissal was in dispute.
11. The respondent submitted its bundle of documents marked Exhibit “A” while the applicant’s bundle of documents is marked Exhibit “B’’.
SURVEY OF EVIDENCE AND ARGUMENTS
12. Mavhungu Elvis Managa testified under oath that he applied for a teaching position around November/ December 2013 at Moteti Primary School, Sekhukhune District. He was invited to attend the interviews. He was eventually appointed in that teaching position. He commenced working as teacher when the school re-opened in January 2014. He taught Mathematics, English and Technology in Grade 7. He was appointed with another teacher at the school.
13. In February 2014, the Principal of the school called him and the other teacher to hand them their appointment letters received from the District Offices. Ms Mamogobo, the Principal of the school congratulated him for his permanent appointment at the school. He also signed the contract of employment.
14. In March 2014, his colleague told him that she received her salary. He then went to the Principal and the Circuit Manager to enquire about the non-payment of his salary. The Principal told him to continue working as his salary would be sorted out.
15. He received a letter of termination from the District Office on 23 September 2014 after working for about nine months for the respondent. The respondent however paid him for the nine months that he had worked for. The Principal of the school advised him not to report for work because of the letter. The reason provided in the letter was that he did not comply with Section 14 (2) of the Employment of Educators Act No 76 of 1998 (EEA). Section 14 (2) of the Employment of Educators Act No 76 of 1998 (EEA) provides that if an educator who is deemed to have been discharged under paragraph (a) and (b) of subsection (1) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the re-instatement of the educator in the educator’s former post in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine while he was at home.
16. On 1 July 2016, he wrote a letter to the respondent to which he requested progress report on his case because the respondent allegedly undertook to come up with a policy relating to his case.
17. Under cross examination he denied that his appointment was erroneously made. He maintained that his appointment was fair because he attended the interviews and was appointed. He did not request reinstatement at Mutitidi High School. The appointment was a new one at Moteti Primary School. He further testified that at the time he was deemed dismissed in terms of Section 14 (1) of the EEA in 2003, he was not aware, neither was he advised that he could approach the respondent for a pardon. He only wrote a letter dated 01 July 2016 after he was advised by the Principal and the Circuit Manager in order to resolve the outstanding payment of his salary. He was frustrated because he did not receive his promised salary.
18. Shaking Peter Matlala testified under oath that he is a Human Resource Practitioner at Sekhukhune District Office. He has been in human resource section of the respondent for more than twenty three years. He supervises appointments, transfers, salary adjustments and general salary enquiries relating to human resource matters.
19. He wrote a letter dated 23 September 2014 which terminated the applicant’s employment contract after it became impossible to capture the applicant’s personal details on the persal system for payments of his salary. He detected that the applicant was blocked on the persal system because he deserted his principal position in Vhembe District. The applicant’s re-appointment would be impossible unless the persal system is advised to unblock the applicant. The applicant could only be unblocked if the Head of Department approved the applicant’s request for pardon by way of her letter dated 11 August 2014.
20. Under cross-examination, he conceded that the applicant was dismissed because of the HOD’s rejection of the applicant’s request for a pardon. He further conceded that the standard at the respondent was that candidates appointable should be verified on the persal system and the documents thoroughly checked before appointment is made. He further conceded that that the application form completed by the applicant did not make any provision for him to disclose any previous reasons for leaving the respondent. He stated that the application forms have now been amended with clauses that request for such information.
ANALYSIS OF EVIDENCE AND ARGUEMENTS
21. Section 192 (1) and (2) of the Labour Relations Act (LRA) provides in any proceedings concerning any dismissals, the employee must establish the existence of the dismissal. If the existence of the dismissal is established the employee must prove the dismissal was fair. In this case, the respondent disputed that the applicant was dismissed. The respondent’s case is further that the applicant deserted his teaching position in 2003. He could only be re-appointed by the respondent after a pardon by the Head of Department in terms of section 14 (2) of the EEA.
22. The applicant‘s version was that he applied for a position to which he was appointed after attending interviews. He received an appointment letter dated 22 January 2014. He was dismissed by way of letter dated 23 September 2014. The respondent’s Mr Matlala confirmed that the applicant was dismissed by way of this letter. The reason for the applicant’s dismissal was that he could not be captured on the persal system. Every employee in terms of section 185 (a) and (b) has the right not to be unfairly dismissed. Section 188 (1) (a) provides that a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on the employer’s operational requirements. The dismissal has to be effected in accordance with a fair procedure.
23. The respondent sought to create an impression that the applicant could not be dismissed because he was not captured on the persal system and was never an employee. In my view, this cannot be correct. The applicant received an appointment letter. The respondent’s letter dated 23 September 2014 written by Mr Matlala constituted a dismissal in terms of Section 186 (1) (a) of the LRA. Mr Matlala himself conceded that the applicant was dismissed. It is therefore my finding that the applicant has established the existence of his dismissal. It is further my finding that his dismissal was procedurally and substantively unfair.
24. The only possible way for the applicant to be employed was through a pardon by the Head of Department for his desertion in 2003. The applicant did not challenge his deemed dismissal in 2003 because he was not aware of the option. He simply applied for a new position and was successful. It is this termination of the applicant’s dismissal for the new appointment which is challenged. The respondent has thus failed to prove that the applicant’s dismissal was fair both in terms of procedure and substance in the new position.
25. In view of my findings above, it is further my view that there is no evidence to suggest that a trust relationship between the parties is broken. It is my view that reinstatement is the appropriate remedy. The arrear salaries due to the applicant are R435 158.75 as follows:
notch per annum
Salary per month
Period to be paid
1/10/2014 to 31/3/2015 (6 months)
Plus service bonus
in February 2015
1/04/2015 to 31/3/2016 (12 months)
Plus service bonus in February 2016
1/04/2016 to 28/2/2017 (11 months)
Plus service bonus in February 2017
26. The respondent, Department of Education-Limpopo is ordered to reinstate the applicant, Mavhungu Elvis Managa, in its employ on terms and conditions no less favourable to him than those that governed the employment relationship immediately prior to his dismissal.
27. The reinstatement in paragraph 27 above is to operate with retrospective effect from 1 October 2015.
28. As at the date of the award, the remuneration due to the applicant as a result of the retrospective operation of the reinstatement amounted to R435 158.75 minus such deductions of the respondent in terms of the law entitled or obliged to make.
29. The amount in paragraph 27 above is to be paid to the applicant by no later than 28 February 2017.
30. The applicant must tender his services to the respondent on 1 March 2017 at Moteti Primary School.
Panellist: M.N MASETLA