Case Number: PSES127-17/18KZN
Applicant: D.J. Buthelezi
Respondent: DEPARTMENT OF EDUCATION – KWAZULU NATAL
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: DOE- Empangeni.
Award Date: 25 April 2018
Arbitrator: Michael Howitz
Commissioner: Michael Howitz
Case No.: PSES127-17/18KZN
Date of Award: 25 April 2018
In the ARBITRATION between:
D.J. Buthelezi (Union / Applicant)
Department of Education - KZN (Respondent)
Union/Applicant’s address: Mandlakayise Myeni – Union Official of NATU
Telephone: 074 806 6362
Respondent’s representative: M.C. Sibanyoni – Assistant Director Human Resources.
Telephone: 081006 2473
Details of hearing and representation
1. This award follows the arbitration that took place on 16 March 2018 at the Department of Education (DOE) KZN – Empangeni offices. The applicant, D.J. Buthelezi, was represented by her union official Mandlakayise Myeni of NATU. The respondent, Department of Education – KZN, was represented by M.C. Sibanyoni who is an assistant director in human resources for the district office of the DOE- Empangeni.
2. The hearing concerned a dispute relating to the alleged unfair conduct against the applicant in terms of section 186(2) (a) Unfair conduct – promotion/demotion/probation//training/benefits as per the Labour Relations Act 66 of 1995 (LRA 66/95).
Issues to be decided
3. Whether the respondent had acted unfairly by not paying the applicant any wages for work that she had performed during the period 1 January 2012 to 31 December 2013 and what remedy should be awarded.
Background to the dispute
4. The applicant is employed as a school teacher and has been working for the respondent since 1992. At the present moment the applicant is earning R15, 000.00 per month.
5. The applicant was in a situation where she had no option but to stay away from work and go off on sick leave because she had been mentally ill for the whole year of 2008. The following year, after she had fully recovered from her illness, the applicant had tried to return to the school where she had always worked, but the principle told her that her post had been filled by another teacher. She was never told that she had been discharged or that her persal number had been blocked.
6. The respondent contends that the department is guided by a policy which states in section 14 that an employee is automatically placed on discharge and the persal number is blocked if the employee is absent for 14 days or more. This action by any employee, if committed, is deemed to be unauthorized absence. In such instances an employee would have to first make an application for the discharge to be uplifted and only if such is uplifted, shall the employee’s persal number be unblocked.
7. The applicant had been dismissed at the end of 2007 for having stayed away on unauthorized absence for more than 14 days. The DOE had not heard from the applicant for a very long time. Only in June 2012, when the applicant had made an application for her discharge to be uplifted, did it come to the respondent’s attention as to why she had been absent for so long. The respondent’s authorities conducted their investigations as to the reasons for her absence. In April 2014 the respondent uplifted the applicant’s discharge and she was then considered a fulltime employee again.
8. The respondent believed that the applicant did not get any permission from the head of the department to be working at any school until her discharge had been officially uplifted. The respondent believes that the applicant had been unduly appointed at the school where she had worked for the years 2012 and 2013. Because she had worked without any authorization, the respondent believes that the applicant does not have a legitimate claim to be paid any wages for the two years that she had worked at the school.
9. The applicant is seeking her wages for the two years (2012/2013) that she had worked as she was never paid at all during that period. The applicant contends that she was never made aware that she had been discharged on 4 December 2007. The applicant reiterated that she had stayed away from work for that year as she was not in a right frame of mind. When she had fully recovered, she tried to return to the school where she had been teaching prior to her condition in 2008.
10. The principle told the applicant that her position had been filled by another teacher and therefore she would need to wait for him to call her. When the principle had not called her, she went and taught at a school in Gauteng for a number of years. She had always received her monthly wages from the Gauteng Department of Education whilst working at the school in Gauteng.
11. The applicant returned to KZN in 2012 and immediately started working at a different school to the one she had previously worked. After working for about four months she had still not been paid her monthly wages. She was advised to contact the H.R. department at the district office so as to inquire as to why she was not being paid. The H.R. administrative office advised her that because she had gone absent for longer than 14 days in November/December 2007, section 14 of the policy automatically deemed her as having been discharged and therefore her persal number had been blocked.
12. The applicant applied for her discharge to be uplifted and her persal number to be unblocked. The applicant continued to report for work every day at the school and taught her subjects to the pupils. She was told that she would eventually receive all her wages once the discharge had been uplifted and her persal number was unblocked.
13. The respondent had eventually uplifted her discharge and her persal number was unblocked. The respondent however refused to pay her out for the work she had performed for the period 1 January 2012 to 31 December 2013. The applicant is seeking to be paid for the two-year period that she had worked. The fact that the applicant had worked as well as the period for which she had worked was not disputed.
Survey of the evidence and argument
14. The provisions of S138 LRA 66/95, as amended, enjoin me to issue the arbitration award with brief reasons. I intend in this award to focus only on the issues that I perceive to be pertinent to the issues that were disputed by the parties.
15. The applicant, D.J. Buthelezi who is a teacher, testified that she had become very ill in December 2007. She was mentally ill and therefor very confused for the whole year of 2008, but when she recovered from her illness she wanted to come back to work in January 2009.
16. The applicant testified that she went back to the school where she worked before she become ill. The principle told her that she could not come back as her position had been filled by another teacher. The principle told her that she should wait for a call from the department to see where she should go and work. They never contacted her so she went to work at a school in Johannesburg for a few years. She then came back to Durban and started to work at the first school that needed a teacher for the subjects that she taught.
17. The applicant testified that she worked at the school from January 2012 to December 2013. She never received any wages for the two years that she had worked. When she inquired as to why she was not receiving her salary, she was told, for the first time, that her persal number had been blocked because she had been discharged in December 2007 and was therefore no longer a teacher on their books.
18. In June 2012 she was told that she should apply for the discharge to be uplifted. It took one and a half years for the discharge to be uplifted and her persal number to be unblocked. During this time she still continued to work every day at the school. Nobody told her not to work and in fact she was told that she would eventually receive all her outstanding salary when her persal number was unblocked.
19. During cross examination the applicant testified that she was last paid her salary in December 2007. She was not mentally well and therefore very confused during 2008 so she accepted the fact that she was not being paid for the year. In 2009 she was only told that the school where she was previously working no longer had a position for her at the time. She when she heard that there was teaching posts in Gauteng she went and worked there for a few years. She came back to KZN and in January 2012 and started working at a school.
20. When she did not get paid she investigated as to why she was not getting her wages. This was the first time that she knew that she was no longer an employee since 2007. This was why she applied for the discharge to be uplifted. She was told by the principle of the school that she could continue working and once the discharge had been uplifted she would get paid for her work that had been done. She always signed the time sheets every day believing that she would be paid once the persal number had been unblocked. The applicant testified that she is only seeking to be paid her wages for the two years that she had worked without having been paid her salary.
21. The witness for the respondent, M.C. Sibanyoni who is the I.R. manager for the district of the DOE, testified that the applicant had been away for five years without a trace. The fact that the applicant had gone and worked elsewhere in Gauteng meant she had worked for another employer so it should be deemed that she was no longer a bona fide employee for the respondent. She was not employable during 2012 and 2013 because she had been discharged on 4 December 2007. She should never have worked for the school because she had been discharged as per section 14 of the Employment of Educators Act, Act No. 76 of 1998 as amended.
22. Sibanyoni testified that the policy states that if an employee is absent for longer than 14 days it will be deemed that the employee is discharged and the persal number automatically gets blocked so that they will not receive a salary unless the discharge is uplifted. Only when an employee is reinstated can it be deemed that the employee is an employee again. Because the applicant was only reemployed in April 2014 she did not have a right to be paid for 2012 and 2013 years that she worked.
23. Sibanyoni testified that he was aware that the applicant had requested to be paid for the time she had worked as a teacher in 2012 and 2013. It was not disputed that the applicant had worked as a teacher at the school for these two years. Management however feels that they do not have the authority to pay any wages to someone who had been discharged and their persal number was blocked. Therefore management is refusing to pay to the applicant for the two years that she had worked. Management is only prepared to pay to the applicant her wages from the time that her discharge had been uplifted and her persal number had been unblocked. The applicant had been paid her wages from the time that her discharge had been uplifted.
Analysis of the evidence and argument
24. This dispute was filed to the Council as an unfair labour practice through section 186 (2) (a) Unfair conduct – promotion/demotion/probation/training/benefits. The parties testified and gave evidence regarding the facts of the applicant’s dispute. Throughout the arbitration the parties focused on whether the respondent should pay to the applicant her alleged wages for the two year period that she had worked at a school. The applicant’s dispute therefore revolves around a wage dispute and not an unfair labour practice.
25. As a wage dispute does not fall within a dispute regarding an unfair labour practice such as benefits, I am not able to make a ruling within an arbitration award as to whether the respondent should pay any wages that are being claimed by an employee or not. In this instance the Council does not have jurisdiction to hear or make a ruling or arbitration award if the dispute involves solely a wage dispute.
33. I find that the conduct complained of by the applicant, the non-payment of wages does not amount to an unfair labour practice relating to benefits.
34. The applicant is therefore not entitled to any relief.
MICHAEL L. HOWITZ