Case Number: PSES31-17/18NC
Province: Northern Cape
Applicant: SAOU OBO VAN NIEKERK, J
Respondent: Department of Education Northern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education Offices in Kimberly
Award Date: 2 August 2017
Arbitrator: Khuduga Tlale
Panellist: Khuduga Tlale
Case Reference No.: PSES31-17/18NC
Date of award: 02 August 2017
In the matter between:
SAOU OBO VAN NIEKERK, J APPLICANT
NORTHERN CAPE DEPARTMENT OF BASIC EDUCATION RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Van Niekerk, J (“the Applicant”) and Northern Cape Department of Basic Education (“the Respondent”) was held on 26 July 2017 at the Respondent’s Offices in Kimberley. The Applicant appeared in person and was represented by Mr. JC Strydom, a shop steward. Mr. T Obusitse, Assistant-Director: Employee Relations represented the Respondent.
2. This proceeding were electronically recorded.
ISSUES TO BE DECIDED
3. The following are issues to be decided:
3.1 whether there was an employment relationship between the Applicant and Respondent on 10 October 2016; and
3.2 whether the Applicant must be appointed and remunerated with effect from 01 October 2016.
BACKGROUND TO THE ISSUE
4. The Applicant is a qualified educator and the Respondent employed her as a substitute educator at Hartsvaal Primary School. Mr. Nel was booked off sick from 01 October 2016 to 30 December 2016. The School Governing Body (“the SGB”) recommended that the Applicant be appointed as a substitute educator from 01 October 2016 to 31 December 2016. The Respondent approved the Applicant appointment with effect from 24 October 2016 with the salary scale of R228 984, 00, per annum plus 37% in lieu of benefits.
5. She had the expectation to be appointed from 10 October 2016 to 31 December 2016. The Applicant assumed duty on the re-opening of the third school term on 10 October 2016 without the authorization of the Respondent. She was remunerated from the 24 October 2016 instead from the 01 October 2016.
6. The Applicant referred an unfair labour practice dispute to the Council on 10 April 2017. The Applicant alleged that the Respondent’s conduct was unfair when they appointed and remunerated her with effect from 24 October 2016. She sought to be appointed and remunerated with effect from 01 October 2016.
7. The Applicant submitted a bundle of document that was marked bundle A, pages 1-87.
SURVEY OF EVIDENCE AND ARGUMENT
First Witness: Ms. Julene Van Niekerk
8. The witness testified under oath that she was the Applicant in this matter. She is a qualified educator with eight (8) years teaching experience. She is currently employed as an educator at Hartsvaal Primary School. She was employed in the position of Mr. Nel who was booked off sick. Mr. Nel’s illness started from the year 2015 to date.
9. The Respondent employed her after receiving the recommendation from the SGB. She has no appointment letter to proof that the Respondent appointed her from 24 October 2016. It was the Respondent practice to employ her without an appointment letter and remunerated her accordingly. She resumed duty at Hartsvaal Primary School on 10 October 2016 as per document “A48” but she was remunerated from 24 October 2016. She had an expectation to be remunerated from 01 October 2016. It was the Respondent’s policy to remunerate educators from the 1st day of the month as per document “A66”.
10. Under cross-examination, she stated that it was the school principal who would give an educator permission to resume duty. The Respondent approved the appointment of an educator after receiving the recommendation from the SGB.
11. She stated that no one appointed her from 10 October 2016 to 23 October 2016. She confirmed that there was no employment relationship between her and the Respondent. It was the Respondent practice to employ her without an appointment letter and accordingly remunerated her. She was asked by the principal and the SGB to assume duty on 10 October 2016. She confirmed that the SGB recommendation does not mean she was appointed.
Second Witness: Ms. Elmien Nel
12. The witness testified under oath that she is an acting principal at Hartsvaal Primary School. The Applicant was appointed as a substitute educator in the position of Mr. Nel who was booked off sick. The SGB recommended the appointment of the Applicant to the Respondent for approval. It was not the first time that the Applicant was employed at the school and the Respondent did not issue any appointment letters. Even from the 24 October 2016, no appointment letter was issued to the Applicant.
13. In this matter, the SGB sent the recommendation to appoint the Applicant after two weeks of the re-opening of the school. The Respondent used to pay the Applicant from the beginning of the school term. The Applicant resumed duty on 10 October 2016 but she was paid from 24 October 2016 because the school sent the recommendation late to the Respondent as per document “A43”. The SGB recommended that the Applicant be appointed from 01 October 2016 to 31 December 2016. The learners’ need to be taught from the beginning of the school term and no classroom must be without an educator.
14. Under cross-examination, she stated that the SGB must recommend and send their recommendation to the Respondent for approval. She said that the SGB recommendation was to appoint her. She mentioned that the Respondent never issued her with an appointment letter. She confirmed that there was no employment relationship between her and the Respondent from 10 October 2016 to 23 October 2016.
15. During the clarity questions, she stated that the SGB sent their recommendation for her appointment on 25 October 2016.
16. The Respondent representative stated that they were not going to call any witnesses.
17. The Applicant representative stated that the Applicant resumed duty on 10 October 2016 as she has done on previous occasions. She did this without any written authorization from the Respondent. It was the Applicant’s undisputed version that it was the Respondent’s standard procedure not to furnish substitute educators with appointment letters. Therefore, the Applicant had a reasonable expectation that she would be appointed from the beginning of the school term. Both parties had an employment relationship based on past practice.
18. The Respondent approved the Applicant’s appointment on 24 October 2016 instead of 10 October 2016. The Applicant representative in his argument referred me to Truter v Mecham (1997) 18 ILJ 803 and argued that this case was his authority for the view that the number of times that a contract has been renewed, was one of three criteria for determining of the reasonableness of an expectation of appointment.
19. The Respondent acted unfairly by not appointing the Applicant from the beginning of the school term, 10 October 2016. The Respondent failed to comply with the Personnel Administrative Measures (“PAM”) by ensuring that the Applicant was appointed in writing. The Applicant’s appointment benefited both parties. The Applicant sought appointment with effect from 01 October 2016.
20. The Respondent representative stated that the Applicant as the witness testified that there was no employment relationship between her and the Respondent on 10 to 23 October 2016. The SGB gave the Applicant consent to resume duty without the Respondent approval. Ms. Nel testified that the school submitted the recommendation for the appointment of the Applicant on 25 October 2016. The Applicant’s dispute must be dismissed because there was no employment relationship between the parties.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. Section 186(2)(a) of the Labour Relations Act, (“the Act”), states that ‘unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving – unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.
22. The case law referred to by the Applicant representative was not relevant to the issue in dispute. The matter before me was not about the non-renewal of a fixed term contract.
Whether there was an employment relationship?
23. Chapter 1 of the of the Employment of Educators Act defines an educators as any person who teaches educates or trains other person or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act.
24. In terms of section 6(1)(b) of the Employment of Educators Act the appointment of any person in the service of a Provincial Department of Basic Education shall be made by the Head of Department. Section 6(3)(a) of the Employment of Educators Act states that any appointment to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school.
25. It is common cause that the Applicant commenced teaching at the school on 10 October 2016. At this time, the SGB did not submit their recommendation to the Respondent for the approval of her appointment. The SGB sent their recommendation to the Respondent on 25 October 2016. The Respondent approved the Applicant’s appointment with effect from 24 October 2016 and she was remunerated from that date.
26. It was clear that the true nature of the Applicant’s dispute was an appointment and remuneration and her dispute was based on the Respondent past practices when she was appointed. The Respondent standard practices cannot supersede the Employment of Educators Act. In Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC), it was held that where an employee resumes for duty without written permission from the Department, such assumption of duties would not establish an employment relationship per se.
27. The unfair labour practice can only occur between an employer and an employee and as such there must be an employment relationship in existence. Bases on the facts and evidence presented before me, it was clear that there was never any existence of an employer and employee relationship for the period 10 October 2016 to 23 October 2016. Even the Applicant confirmed that there was no an employment relationship between her and the Respondent for the period 10 October 2016 to 23 October 2016. The Respondent never appointed the Applicant as its employee.
28. There is a closed list of an unfair labour practices in the Labour Relations Act, (“the Act”). That means that only employer actions that fall within the scope of the four (4) categories expressly listed in section 186(2)(a-d) of the Act, could be an unfair labour practice. If a certain action does not fall within the scope of the definition, it will not be an unfair labour practice in terms of the Act. The Council can only arbitrate a dispute if that dispute falls within the scope of the unfair labour practice definition.
29. In the matter between Booysen v SAPS & another  JOL 22262 (LC), Cheadle AJ at  held as follows:
“An unfair labour practice is defined in section 186(2). That definition is a closed definition. Unlike its predecessor in the 1958 Labour Relations Act, it is not open-ended. It is restricted to the practices listed. Those practices do not include an unfair act in the conduct of a disciplinary procedure. The listed unfair labour practice "involving suspension or any other unfair disciplinary action short of dismissal" is clearly directed to the substantive fairness of the action and not the procedure.”
30. In these circumstances, I find the Applicant failed to discharge the onus to prove that she was an employee who suffered an unfair labour practice against the Respondent.
31. The Education Labour Relations Council lacks jurisdiction to entertain the Applicant’s referral in that no employment relationship existed when her alleged cause of action arose. Furthermore, the conduct that the Applicant is complaining of does not amount to an unfair labour practice.
31. There is no order as to costs.
Panelist: Khuduga Tlale