Case Number: PSES 556-17/18NW
Province: North West
Applicant: E IBEAWUCHI
Respondent: DEPARTMENT OF EDUCATION – KWAZULU NATAL
Issue: Unfair Labour Practice - Provision of Benefits
Venue: District Office of the Bojanala Department of Education
Award Date: 14 July 2018
Arbitrator: S Fourie
Commissioner: S Fourie
Case No.: PSES 556-17/18NW
Date of Award: 14 July 2018
In the ARBITRATION between:
(Union / Applicant)
DEPARTMENT OF EDUCATION (North West)
Union/Applicant’s representative: Mr. E Ibeawuchi
Tel: 073 343 6688
Respondent’s representative: Mr. B Monkwe
Tel: 018 388 5067
Telefax: 018 388 2561
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 14th of May 2018 and finalized on the 28th of June 2018. The Applicant represented himself and Mr. T Monkwe an ER official from the Department of Education represented the Respondent. The parties were thereafter afforded the opportunity to present written heads of argument to be submitted by the 5th of July 2018. The hearing was held at the District Office of the Bojanala Department of Education, Rustenburg and the process was digitally recorded.
ISSUE TO BE DECIDED
3. Whether there was an employment relationship between the applicant and the respondent and, if so, whether the applicant is entitled to a salary for the period commencing from 1 January 2015 and not from 20 January 2015 and also for the period commencing from 5 January 2016 and not from 27 January 2016.
5. The Applicant alleged that he assumed duties on the 07 January 2015 and not on the 20 January 2015. The Departmental Circular 18 of 2015 that relates to “the appointment functions and other related functions with financial implications” was issued on the 19th of May 2015 whilst the Principal requested the Applicant to resume duties in January 2015. For 2016, the principal requested the Applicant to commence duty on the 06 January 2016 whilst processing the Applicant’s appointment contract with the Respondent. The Principal then stopped the Applicant from working on the 21st January 2016 around 10:30am, because he received a circular around 10:20am on the 21 January 2016 which instructed Principals let educators assume duties until the approval of their appointments. The Applicant required to be remunerated for the periods he worked during January 2015 and 2016. The Respondent agreed that the service bonus of the Applicant for 1 April 2016 to 31 December 2016 is in process to be paid to the Applicant and that the Applicant would pursue the January and February 2017 salary dispute separately under another separate case already lodged with the Council.
SURVEY OF EVIDENCE AND ARGUMENT
6. For purposes of this award, I do not intend, to record verbatim the evidence led, the submissions made and or the arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented. The Applicant led his own testimony and the Respondent called one witness. The Applicant entered into evidence a bundle of documents, submitted Bundle A with pages 1 – 62 and the Respondent submitted a bundle of documents as Bundle R, with pages 1 – 46.
7. Mr. Ibeawuchi testified that during December 2014, the he was informed by the recruiting agent of the Department, being the SGB and the Principal to resume duty on 12 January 2015 but resumed duty on the 7th of January 2015. It is a common practice that the school will identify a teacher to resume duty whilst the appointment is processed and then to be paid from the date the teacher started to work. He did not sign the assumption of duty form on which the actual date for assumption of duty was changed from the 7th of January 2015 to the 20th of January 2015. The Departmental Circular 18 of 2015 that relates to “the appointment functions and other related functions with financial implications” (paragraph 4 of the circular) was issued on the 19th of May 2015 whilst the Principal requested the Applicant to resume duties in January 2015 therefore, the instructions or directives contained in the circular cannot be applied to the Applicant’s appointment since the circular was issued four months after the Applicant assumed duties. In 2012, the Applicant’s contract expired on the 31st of March 2012 but the Principal requested the Applicant resume duties on the 1st of April 2012 while his contract was processed. The approval of his appointed was made only on 29th October 2012, five months after he assumed duties and was paid for the five months period notwithstanding that his contract was not approved before he assumed duties.
8. The Principal requested the Applicant to commence duties on the 6th of January 2016 whilst processing his appointment contract with the Respondent and from the 6th of January 2016 (the beginning of the term) till the 21st of January 2016. The attendance register showed his attendance at work and on the 21st of January 2016 the Principal requested the Applicant to stop working around 10:30am because he said that he received a Circular from the Respondent at around 10:20am on the 21st of January 2016. Such Circular instructed Principals not to have educators to assume duties until the approval of their appointments by the Respondent. The Principal had already requested the Applicant to assume duties before receiving the circular that directed Principals in 2016 not to ask educators to assume duties before approval of their appointments. The Applicant assumed duties on the 6th of January 2016 and not on the 27th of January 2016 as indicated in the assumption of duty form therefore, the date of assumption of duty as contained in the assumption of duty form should be disregarded and be replaced with 06 January 2016.
9. Ms Daisy Motingoa testified under oath that the Respondent uses an assumption of duty form to determine the actual date of assumption of educators. This form is an official form signed by the school principal, SGB chairperson and the area manager who confirms, the educator’s official date of assumption. This form is a communication between the School’s area office and the HR section of the Respondent for the purpose of salary payment. The Applicant only started to have a relationship with the employer from 20 January 2015 as per the commencement date in his appointment letter. She further stated that after the approval of annexure D, an approval letter is sent to Schools and it empowers Principals to allow educators to assume duty. It will be at that point that an assumption of duty form will be completed and subsequently an appointment letter will be dispatched from the District Director.
10. The Departmental Circular 18 of 2015 stated in paragraph 5 that Principals 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). The Applicant’s appointment letter indicates his commencement date was 27 January 2016 though he received it after having assumed duty. This is also the day from which the Applicant was paid and the relationship with the Respondent commenced. She referred to Section 6(1) (a) and (b) of the Employment of Educators Act 76 of 1998 that states that the appointment of any person, or promotion or transfer of any educator in the service of a provincial department of education shall be made by the Head of Department. The sole role of Principals is to complete the assumption of duty form with annexure D, to submit the completed documents to the area office.
SUBMISSIONS IN ARGUMENT
11. Both parties submitted argument in writing. That of the employer party was extremely detailed, thorough and extremely useful in its analysis of applicable case law, much of which has been repeated in the analysis below. The submissions of both parties were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. Before analyzing the evidence presented, I will comment on the credibility of the witnesses. The Applicant testified in detail and his demeanor reflected earnestness although some of his supporting documentation did not corroborate his version. The Respondent’s witness, did impressed me as credible and reliable witnesses who stated only what she knew and was willing to make concessions that were detrimental to the case of the Respondent. Both versions are credible and factual.
13. It is common cause that the Applicant is a foreign national in possession of a permanent residence permit to reside within South Africa. It is also common cause that the Applicant was appointed in a temporary capacity from 1 April 2012 until 30 June 2017. This appointment was replaced by another temporary appointment from 1 April 2012 until 31 December 2014. He stated that the approval of this appointment was made only on 29th October 2012 (being the date of the official stamp on the appointment), five months after he assumed duties and was paid for the five months period. The Applicant however did not submit any supporting proof of such payments for the 5 months and from which entity it was paid into his bank account. In my view it is probable that it could have been the SGB that has remunerated the Applicant for that period.
14. During December 2014, the Applicant was informed by the recruiting agent of the Department, being the SGB and the Principal to resume duty on 12 January 2015 but resumed duty on the 7th of January 2015. In casu the Applicant during his evidence, kept on referring to the Principal and the SGB as the recruitment agent of the Respondent. The SGB is a legal person on its own, and regulated in terms of the Section 16 of the South African Schools Act 84 of 1996 and may appoint educators as well as Section 20(4) of the South African Schools Act states that a public school may establish posts for educators and employ educators additional to the establishment as determined by the Member of the Executive Council in terms of section 3 of the Educators of Employment Act, 1994. The Respondent uses an assumption of duty form to determine the actual date of assumption of educators, which form (being an official document) was signed by the school’s Principal, the chairperson of the SGB and the Area Manager in relation to the assumption of duty to commence on 20th January 2015. Indeed the date was changed from 7 January 2015 to the 20th of January 2015. This date, the 20th of January 2015 correlates with the commencement date as approved by the District Director in the appointment letter of the Applicant with an official date being 22 April 2015. The Applicant in his evidence stated that the Principle requested him to commence on the 12th of January 2015 although he commenced on the 7th already. The attendance register submitted showed the Applicant for the week 12 to 16 January 2015, he reported for duty at the school on the 13th of January 2015 a day he was requested by the Principal to assume duty. He did not submit any attendance register to show that he was present at the School the previous week nor did he call the Principal, SGB chairman or Area Manager to corroborate his case that the assumption of duty was captured incorrectly on the appointment.
15. The Principal requested the Applicant to commence duties on the 6th of January 2016 whilst processing his appointment contract with the Respondent and from the 6th of January 2016 (the beginning of the term) till the 21st of January 2016. The attendance register showed his attendance at work and on the 21st of January 2016 the Principal requested the Applicant to stop working around 10:30am because he said that he received a Circular from the Respondent at around 10:20am on the 21st of January 2016. The Applicant did not present the Principal to rebut the assumption of duty date to be another date that what was approved by the District Director.
16. Section 6(1) (b) of the Employment of Educators Act 76 of 1998 (EEA) states that the appointment of any person, or promotion or transfer of any educator in the service of a provincial department of education shall be made by the Head of Department. The Applicant concurred that the Head of Department is responsible to appoint educators and in the North West Province such powers to appoint have been delegated to District Directors and not the School Principals or SGB chairperson as recruiting agent of the Department. Therefore an approval of an appointment by the District Director, no educator may assume duty for the Respondent but surely may do so for the SGB. I am of the view that the Departmental Circular 18 of 2015 was a reminder and an emphasis of the legal position in relation to Section 6 (1) (b) of the Employment of Educators Act that Principals do not appoint. The legal position affect the Applicant’s position in my view, the Circular, does not affect him but served as a reminder to the addressees in the Circular. When it was released the Applicant was already appointed and is misguided to believe that the Principal or the Chairperson of the SGB is a recruiting agent for the Respondent.
17. I accept the Respondent’s argument that the Principal is not the employer and did not have authority to appoint the Applicant. Section 6 (1) of the EEA provides that, “subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-
(a) in the service of the Department of Education shall be made by the Director-General; or
(b) in the service of a provincial department of education shall be made by the Head of Department.
It was held in Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC) that, “where an employee assumes duties without written permission from the Department, such assumption of duties would not establish an employment relationship per se.” It follows then that there was no employment relationship between the Applicant and the Respondent is thus not entitled to any remuneration from the Respondent (the Department).
18. There was no employment relationship between the Applicant and the Respondent and the Applicant, Mr. Emmanuel Ositadinma Ibeawuchi is thus not entitled to the salaries claimed in this application.
19. The matter is therefore dismissed.
15 July 2018