Case Number: PSES126-18/19KZN
Applicant: MASINGA, NONKULULEKO F
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Department of Education in Dundee
Award Date: 19 October 2019
Arbitrator: NOZIPHO B KHUMALO
MASINGA, NONKULULEKO F “the Applicant”
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”
Case Number: PSES126-18/19KZN
Last date of arbitration: 30/09/2019
Closing Arguments: 07/1 0/2019
Date of award: 19/10/2019
NOZIPHO B KHUMALO
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. The matter was set-down for arbitration in terms of Section 191(5)(a) of the Labour Relations Act (LRA) at the offices of the Department of Education in Dundee, on the 28/06/2019 and 30/09/2019. Mr. S Ngcobo appeared for the Respondent whilst Ms Masinga, the ‘Applicant’ represented herself. At commencement of this arbitration on the 28th/06/2019, the matter was adjourned to allow the Applicant an opportunity to secure legal representation. On the 30/09/2019, the Applicant confirmed that she will represent herself as she did not have a representative.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2 The Applicant was called for an interview by the Respondent at Mgwempisi Secondary School on the 19/02/2019.
3 She assumed duties on the 22/03/2019 at Mgwempisi Secondary School.
4 On the 29/03/2019 she was informed that the circuit manager did not sign her appointment form as she did not meet the minimum requirements. she did not return to work thereafter.
5 The Applicant is seeking reinstatement with full back pay.
6 The Applicant handed in Annexure “B” whilst the Respondent handed in Annexure “A”.
7 I have to decide whether the dismissal of the Applicant was unfair or not. Based on my finding I have to decide on the appropriate relief, if any is applicable.
8. The Applicant requested an adjournment during the first seating which was the 28/09/2018 to seek legal representation. During the second seating the Applicant came without a representative and confirmed that she will be representing herself.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Respondent’s case
9. The Respondent called one witness, Sandla R Gabela. His evidence is summarised as follows. Gabela has worked as an assistant director: HR at Umzinyathi District Office for ten (10) years. His duties include overseeing recruitment of educators and public service staff, transfers and qualification improvements. Gabela stated that it is the district office that appoints temporary educators and substitute educators. A school will send in a request for a substitute or temporary educator to the district office. The school governing body and the principal of the school completes and signs the HR01 form which provides details of the school where the post is. The form is then forwarded to the circuit manager who verifies the information and also signs the form. The chief education specialist, also signs the form and the form is submitted to the district office.
10. At the district office, five (5) candidates who meet the requirements of the post are identified from the database. The Deputy Director: Human Resource Support Services signs the form once the candidates are identified and the form is taken back to the school with the names of these five (5) candidates. The school will continue with the interview process and rank the candidates in order of their preference. One or more candidates may be identified. Once the interview process is finalised, the principal and the chief education specialist sign the HR01 form and the form is taken back to the database to confirm if the preferred candidate meets the requirements of the post. Two (2) offer of employment letters are issued which are both signed by the district director. One of the letters will be addressed to the principal and informing him/her about the recommended candidate and the other letter is for the candidate. The school delivers the letter to the candidate. Upon assumption of duty, the candidate will sign an assumption of duty form which will be taken to the district office to implement on the persal system.
11. Gasela further stated that one cannot be said to be appointed without an offer letter. The Applicant, although she signed the assumption of duty forms, was not appointed as she did not have an offer letter. All applications go through his office and he did not deal with the Applicant’s application. He does not know where and how it was processed.
12. The Applicant testified and her evidence is summarised as follows. On the 16th/02/2018 she was called for an interview which was scheduled to take place on the 19/02/208. At the interview there was Mkhwanazi the principal and the chairperson who both introduced themselves and there were also other school governing body members. The Applicant was asked about her qualifications and she stated that she is qualified to teach intermediate and senior phases. Mkhwanazi then said that the interview will proceed as the four (4) other candidates who were called for an interview did not arrive and the interview proceeded.
13. The Applicant contacted Mkhwanazi after a couple of days. Mkhwanazi informed her that he was still waiting for head office for a response. On the 20th/03/2019 she received a call from the principal that she should come in on the 22nd/03/2018 as her interview was successful. On the 22nd/03/2018 when she arrived at the school, the principal took her into his office where they completed, “B2-22. A Miss Basi handed over the work load to the Applicant. The Applicant immediately went to her class as she was also given the schedule to invigilate.
14. On the 29th/03/2019 the Applicant received a call from Mkhwanazi to inform her that Ms Mkhize who is the Circuit manager at Umvoti will not sign the Applicant’s assumption of duty forms as she did not meet the minimum requirements. Mkhwanazi told her that he was very confused by this as he had followed all the procedures set by the department. He provided the Applicant with Mkhize’s number. On the 30/10/2019 the Applicant contacted Mkhize who informed her that she did not meet the minimum requirements as the post was for FET. The Applicant then went and collected all her belongings and went back home to KwaMashu, Durban. She is seeking compensation
SUMMARY OF ARGUMENTS
15. The Respondent argued that there was no employer employee relationship between the Respondent and the Applicant and therefore there was no dismissal. The Applicant failed to prove that she was employed by the Respondent and could not bring the principal to corroborate her story. Furthermore, the Applicant pays no subscription to the ELRC and the ELRC therefore has no jurisdiction to hear the Applicant’s matter. The Applicant’s matter should therefore be dismissed.
16. The Applicant argued that the Respondent’s witness, Gabela failed to prove that the Applicant misled the panel. The evidence lead by Gabela was just a strategy of the respondent to hide away from admitting its error. Furthermore, the principal, Mkhwanazi has ostensible authority in the school and she had no reason to doubt him. She had no knowledge of the Respondent’s recruitment processes. Relocating from Durban to Mgwempisi Secondary School cost her over R10 000-00. The Applicant further stated that she is a mother of two (2) and has suffered enough.
ANALYSIS OF EVIDENCE AND ARGUMENT
17. In this case, the following facts are common cause. Firstly, that the Applicant applied on the department’s database. Secondly, that she did not meet the minimum requirements for the post. Thirdly, she was called for an interview, which took place on the 19/02/2018. Fourthly, that she assumed duty on the 22nd/03/2019 at Mngwempisi Combined School, without an appointment letter. Lastly, she signed the notice of assumption on the 22nd/03/2018.
18. The Applicant assumed duty on the 22nd/03/2018 and completed an assumption of duty form which she was issued by Mkhwanazi. She was later informed by the circuit manager Mkhize that her application was unsuccessful because she did not meet the minimum requirements. This was not the first time that the Applicant has been told that she did not meet the requirements of the post. She stated in her evidence that Mkhwanazi, the principal, said that she does not meet the requirements of the post on the day of the interview after she had told the panel about her qualifications.
19. The Applicant further stated that after having informed the panel about her qualification, the principal directed the interview to proceed, nonetheless. This evidence was not tested as the principal was not called to testify.
20. In terms of the evidence led by Gabela, suitable candidates are identified from the department’s database. The Applicant also stated in her evidence that she was selected from the database as a suitable candidate. She further stated that she had captured all her qualifications accordingly in the database. The Respondent however, argued that the Applicant had misled the department. Again this statement and argument could not be tested as the was no evidence to validate the Applicants evidence or the Respondent’s argument.
21. The Applicant did not dispute that she did not have an appointment letter before assumption of duty. In terms of Regulation 57(5) of the Public Service Regulations, an appointment shall take effect after approval by the relevant executive authority. The Applicant was further informed by the circuit manager, Mkhize that her application was not approved because she did not meet the requirements. Mkhize therefore did not sign her assumption of duty forms. In this regard it is safe to say that the Applicant was not appointed by the Respondent since her appointment was not approved. Furthermore, HRM Circular No.63 of 2017 clearly states all the conditions applicable during appointment of educators, “A”. The Circular clearly states that no employee may assume duty without the necessary prior approval obtained in terms of the delegated authority. The Applicant assuming duty on the 22nd/03/2018 may have been due to some negligence on the part of the school.
22. I find that the Applicant was never appointed by the Respondent, as she did not meet the requirements.
23. The application of the Applicant is dismissed. I make no order as to costs.
Commissioner: Nozipho B Khumalo
Date : 19/10/2019