Case Number: PSES373-17/18NW
Province: North West
Applicant: MOGOEMANG, NB
Respondent: Department of Education North West
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Department of Education – North West,
Award Date: 8 January 2018
Arbitrator: Mohau Clement Ntaopane
Case Number: PSES373-17/18NW
Arbitrator: Mohau Clement Ntaopane
Date of Award: 08 January 2018
In the ARBITRATION between
DEPARTMENT OF EDUCATION – NORTH WEST
Applicant’s legal representative: WP Scholtz
Telephone: (018) 293 2822
Fax: (018) 293 2847
E-mail: firstname.lastname@example.org; email@example.com
Respondent’s representative: T Monkwe
Telephone: (018) 388 3384
Fax: (018) 388 1703
E-mail: firstname.lastname@example.org; email@example.com
DETAILS OF HEARING AND REPRESENTATION
 This is the award in the arbitration between Ms NB Mogoemang, the applicant, and the Department of Education – North West, the respondent.
 The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iii) of the Labour Relations Act, 1995 as amended (“the LRA”) and the award is issued in terms of section 138 (7) of the LRA.
 The arbitration was heard on 08 December 2017 at the Dr Kenneth Kaunda District Office. Mr WP Scholtz, an attorney from Schotlz Attorneys, represented the applicant. Mr T Monkwe, from labour relations, represented the respondent.
 The process was conducted in English and digitally recorded. Both parties submitted bundles of documents into the record.
 The respondent raised a jurisdictional point arguing that the applicant was not an employee, which point it was decided will be dealt with through evidence as it was part and parcel of the dismissal dispute. Common cause facts, the applicant alleged, created an employment relationship and established a dismissal, were acknowledged as such. The respondent however submitted that this should not be interpreted to mean that an employment relationship existed. The parties agreed to submit heads of arguments to enable me to determine whether the onus borne by the applicant was discharged.
ISSUES TO BE DECIDED
 The dispute is whether the applicant was an employee and whether she was dismissed. Should it be found that a dismissal took place, I am also to determine whether it was procedurally and substantively unfair.
 The relief to be awarded is also in issue.
BACKGROUND TO THE DISPUTE AND COMMON CAUSE FACTS
 The dispute was transferred to the ELRC on 21 August 2017, the original referral having been received by the CCMA on 16 March 2017. A certificate of non-resolution was issued on 20 September 2017. The applicant requested that the matter be resolved through arbitration on 21 September 2017.
 The issues leading to the dispute are as follows:
• On 1 January 2017 the applicant applied for a vacancy at Hallowayrust Primary (pages 2 – 11 of her bundle), which vacancy had been approved by the district director in terms of the “Annexure D” applications approval (page 25). The applicant was the school governing body preferred candidate (page 9);
• On 11 January 2017 the school principal issued a letter confirming the vacant post and the fact that the applicant would be teaching Foundation Phase: all subjects Grade R-3 (page 26), subject to her registration South African Council of Educators (SACE);
• Upon submission of the SACE registration certificate on 12 January 2017, the applicant was provided with the assumption of duty form and informed that she may assume duties on 16 January 2017, by the school principal, which she did;
• On that day the applicant was instructed to cease her teaching duties by the circuit manager, Mr Taunyane.
• The removal of the applicant was premised on the fact that the application for the teaching post or the assumption of duty form had not been signed by the circuit manager and the fact that no appointment letter had been issued to the applicant.
SURVEY OF ARGUMENTS
 The applicant argued that the approval of the vacant post by the district director could be inferred on the basis that the school principal was allowed to make the appointment as an agent of the respondent, which was in line with section 6(3)(b) of the Educators Act since the applicant met the only condition the appointment was subject to in terms of that provision, that of the SACE registration. The assumption of duty form did not provide for any other requirements that needed to be fulfilled and if there was a condition that the applicant did not meet then, as per the view held in Phera v Education Labour Relations Council & others , it would be conceded that the applicant could not be considered an employee.
 The applicant argued further that the employment relationship was established when the applicant accepted the offer of employment by completing the assumption of duty form and rendering her services on 16 January 2017. The appointment was valid because it created an employment relationship as envisaged by section 213 of the LRA. The provisions of the Educators Act in terms of which the Head of Department makes the appointment is trumped by the provisions of the LRA since in terms of section 210 of that act, the LRA prevails where there is a conflict between its provisions and those of any other act, save for the Constitution or any other act amending the LRA. This view was supported in Discovery Health v CCMA where it was held that an invalid contract does not disqualify one of the status of an employee as provided for in section 213 of the LRA.
 The respondent submitted in terms of the Section 6(1) of the Employment of Educators Act (1998) the principal of the school did not have the authority to appoint an educator. Assumption of duty forms are not completed by applicants, but by the principal and co-signed by the circuit manager. The principal informing the applicant to assume duty had acted ultra vires since in terms of the Departmental Circular 18 of 2015:
(5.) Principal must not appoint any teacher at school before approval has been granted (i.e. no teacher must assume duty until an approval has been granted by provincial treasury). (page20 of the respondent’s bundle)
 The “Annexure D” approval was not a directive to the school or the governing body to make appointments, but to forward such applications to the district director for approval. After the district director approved the appointment, the principal and the circuit manager would then complete the assumption of duty form. The approval being a confirmation that a vacancy exists cannot be understood to be an approval to appoint as argued by the applicant as nowhere on the document did it state that an appointment could be made. The delegation of responsibilities in the public service is communicated and not subject to inferences.
 The letter written by the Principal (page 26 of the applicant’s bundle) could not be equated to an appointment letter. The subject of the letter indicated that it was a 'confirmation of an existing post'. The contents of the letter correlated with the subject that there was an existing vacancy. Even if this could be interpreted as an appointment letter, the Principal did not have the authority to issue such a letter because it is a legislative prerogative of the Head of Department and in the North West this has been delegated to district directors. The applicant applied for a vacant post and such application forms could not be interpreted as a job offer. The application is subject to an approval, which was not given. The school governing body only recommends to the Head of Department, not to the school principal, as such the recommendation cannot be implemented without allowing the delegated official to process it.
 There was no contradiction between the LRA and Employment of Educators Act in as far as defining an employee. The applicant may well have been an employee of the school governing body in terms of section 20(4) of the South African Schools Act (1996), but she was not an employee of the department, hence the assertion that the ELRC lacked the jurisdiction as there was no employment relationship between the applicant and the respondent. The Labour Appeal Court in Phera v Education Labour Relations Council and Others (JA 81/10)  ZALC 18;  11 BLLR 11377 [LAC] concluded that the applicant cannot assume duty until there is a written approval from the district director who is delegated to appoint. Similarly, in the respondent’s case, the Head of Department had issued Departmental Circular 18 of 2015 that barred principals from allowing applicants to assume duty when there is no approval.
ANALYSIS OF FACTS AND ARGUMENT
 Section 192 of the LRA requires the employee to establish the existence of a dismissal, following which the dismissal must be shown to have been fair by the employer. The learned author John Grogan, in book entitled “Dismissal” states the following:
‘In many dismissal disputes, the employer challenges the jurisdiction of the forum entertaining the matter on the basis that the employee has not in fact been dismissed. This is because, in dismissal matters, the “existence” of a dismissal is considered a jurisdictional precondition to conciliation or arbitration in the CCMA and bargaining council, or adjudication in the Labour Court.’
 The respondent challenged the jurisdiction of the council to entertain the matter on the basis that no dismissal could be said to have taken place as there was no employment relationship in existence. Section 138 (1) of the LRA provides that a commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. It was my view that it was expedient to consider the evidence and arguments for the purpose of determining the point of jurisdiction, to also determine the dismissal dispute. It appeared to me unreasonable to determine the jurisdictional point only on whether there existed an employment relationship, and where I find that the council held the requisite jurisdiction, request the council to set the matter down for an arbitration for the purposes of determining the dismissal dispute where the evidence would inevitably have been the same evidence used in the jurisdictional enquiry. Where it is found that no employment relationship existed, the enquiry would end there as council would not have jurisdiction. Where it is found that an employment relationship existed, the facts as relayed in the arbitration being common cause would likely establish whether a dismissal occurred.
 The Labour Appeal Court(LAC) has held that where an employee assumes duties without written permission from the Department, such assumption of duties would not establish an employment relationship per se . This view was based on the fact that the existence of the employment relationship was dependent on the suspensive condition. The applicant argued that the only condition that needed to be fulfilled was by the applicant herself and that she satisfied it when she was registered with the South African Council of Educators. The applicant, however, also referred to the requirements in terms of section 6(1) of the Employment of Educators Act (1998) in advancing that the SACE requirement was met by the applicant, but seemed to suggest that the other requirements could not be used by the respondent to show that an employment relationship had not come into existence because of the events leading to the applicant’s assumption of duty on 16 January 2017. These events, according to the applicant, created an employment relationship as envisaged by section 213 of the LRA, which provision trumped the provisions of section 6(1) of the Employment of Educators Act (1998) in terms of section 210 of the LRA.
 The applicant was clearly advancing one of two cases in order to show that an employment relationship existed. The first was that there was only one condition the applicant was seemingly aware of and this condition was met. The LAC was critical of the suggestion by Phera that conditions of employment were either not known or could not be relied upon in an instance where there was an assumption of duty. The applicant held a second view, which was also similar to that held by Phera to the effect that the facts of the case should be seen to have created an employment relationship. The applicant highlighted a conflict between the LRA and the Employment of Educators Act in this regard. The applicant relied on Discovery Health to show that a contract of employment had existed, and that its invalidity does not mean one is not employee. The LAC in Phera stated that it was neither the respondent’s case, nor the commissioner’s finding, that an employment relationship is solely dependent on the construction of a contract recognized as valid and enforceable in terms of the common law. This is my view is what would create the conflict between the two Acts, a conflict which would be resolved through the application of the LRA in terms of section 210.
 The applicant’s view was that the principal was acting on behalf of the respondent and as such the decision to allow the applicant to assume duties should be seen as the decision of the respondent. The respondent argued that the principal was instructed by the Departmental Circular 18 of 2015 not to allow educators to assume duties until there was approval and that principals did not have any discretion on whether to comply. The circular provides reasons as to why appointment should be made by the relevant authority and such reasons relate to financial governance. The respondent submitted that no contract of employment was issued to the applicant, nor was she issued with an appointment letter. It is therefore my finding that as per the LAC’s finding in Phera, the assumption of duty by Ms Mogoemang did not create an employment relationship. It is, however, in my view troubling that there are instances where people are allowed to assume duties with the proper procedures not being followed and the suggestion is that the applicant should have been able to refuse to assume duty on this basis. I cannot imagine that decisions to the effect that an assumption of duty does not create an employment relationship will continue to be made in cases where schools have allowed people to assume duty. The respondent will do well to ensure that these oversights do not continue because of the potential prejudice that befalls those who are allowed to assume duty.
 The applicant has not established the existence of an employment relationship; as such the Education Labour Relations Council lacks the jurisdiction to determine the unfair dismissal dispute.
 I make no order as to costs.