Case Number: PSES711- 16/17EC
Applicant: NAPTOSA obo De Donoker, SRS
Respondent: Department of Education Eastern Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Education Department’s district office in Port Elizabeth
Award Date: 12 April 2017
Arbitrator: M Huber
NAPTOSA obo De Donoker, SRS
Department of Education Eastern Cape RESPONDENT
ARBITRATION AWARD - PSES711-16/17EC
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995 (“the LRA”). It was heard at the Education Department’s district office in Port Elizabeth.
2. The Applicant, Ms. De Donoker, was represented by Mr. Adams from NAPTOSA. The Respondent was represented by Messrs Mpati and Zingitwa from the Department of Education Labour Relations and Human Resources respectively.
The issue to be decided
3. The issue to be decided is whether the Applicant’s termination of employment constitutes an unfair dismissal.
4. The Applicant is seeking reinstatement.
Matters that are common cause
5. The parties agreed that the Applicant had applied for a post in terms of the settlement agreement that had been made an order of court in the High Court, Eastern Cape Division, Grahamstown, between the Department of Education and SADTU, Case number 3760/16.
6. The Applicant had been successful in her application and was appointed on a permanent basis on 1st February 2016 as a Post Level 1 Educator to Van Der Kemp Primary School in Port Elizabeth.
7. On the 19th April 2016 the Applicant had been advised by the Deputy Director (HRA&P) that she did not have the required qualifications to be employed at a Primary School, and her appointment was changed to a temporary contract which would expire on the 31st December 2016.
8. The Applicant was accordingly paid her remuneration and an amount of 37% in lieu of benefits for the 2016 year, on the basis of her temporary status.
9. The Applicant was issued with a further temporary contract as a Post level 1 educator, also at Van Der Kemp Primary School, from 1st January 2017 until 31st March 2017.
10. Her temporary contract expired on 31st March 2017, and she was paid her remuneration plus she was entitled to 37% in lieu of benefits for those three months.
11. The parties agree that it is common cause that the Respondent made an error when it determined that the Applicant was not qualified to teach at Primary School Level, and they agree that the Applicant is qualified to teach at primary school level.
12. The parties agree that it is common cause that the decision to convert the Applicant’s permanent contract to a temporary contract was incorrect.
13. The parties agree that it is common cause that the Applicant’s termination of contract on the 31st March 2017 was both substantively and procedurally unfair, on the basis that the Applicant should have remained on a permanent contract from the point of her initial appointment on the 1st February 2016.
14. The parties agree that it is common cause that the status quo in respect of the Applicant’s remuneration and benefits, being her remuneration plus the payment of 37% in lieu of benefits for the period 1 February 2016 through to 31 March 2017 should remain unchanged, however, she should be reinstated to her permanent appointment with retrospective effect, from 1 April 2017.
15. The parties agree that it is common cause that the Applicant’s appointment should be implemented by the Respondent on or before 31 May 2017, retrospectively to 1 April 2017, as a permanent Post Level 1 Educator at Van Der Kemp Primary School, on a notch 85 salary level, with an annual salary of R245 700.00 (TWO HUNDRED AND FORTY FIVE THOUSAND AND SEVEN HUNDRED RANDS). The Applicant will be entitled to the relevant benefits given to permanent employees with effect from 1 April 2017.
16. Based on the facts which are common cause between the parties, the termination of the Applicant’s contract on the 31st March 2017 is found to be a dismissal and to be both procedurally and substantively unfair.
17. The Applicant must be reinstated with back-pay to her permanent post, Post Level 1, Van Der Kemp Primary School with effect from 1 April 2017, at a salary notch level 85 with annual remuneration of R245 700.00 (TWO HUNDRED AND FORTY-FIVE THOUSAND AND SEVEN HUNDRED RANDS).
18. The Applicant is entitled to the relevant benefits of a permanent Post level 1 educator with effect from 1 April 2017.
In the premises, I make the following order:
19. The termination of the Applicant’s contract of employment on 31 March 2017 constitutes a dismissal in terms of section 186(1)(a) of the Labour Relations Act.
20. The dismissal was both substantively and procedurally unfair.
21. The Applicant is reinstated into her Post Level 1 Educator post at Van Der Kemp Primary School on a permanent contract of employment with effect from 1 April 2017, with employment benefits.
22. The Applicant shall be paid remuneration at a salary notch level 85, being an annual salary of R245 700.00 (TWO HUNDRED AND FORTY-FIVE THOUSAND AND SEVEN HUNDRED RANDS), retrospective to 1 April 2017.
23. The Applicant’s entitlement to employment benefits enjoyed by permanent employees shall also be retrospective to 1 April 2017.
24. The Respondent shall effect this reinstatement, with back-pay and back-dated benefits, on or before 31 May 2017.
25. There is no order relating to costs.
SIGNED AT GRAHAMSTOWN ON THIS 12th DAY OF APRIL 2017.