Case Number: PSES258-19/20KZN
Applicant: GCABA M
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Department of Education offices in Ulundi
Award Date: 10 December 2019
Arbitrator: SIZIWE GCAYI
GCABA M APPLICANT
DEPARTMENT OF EDUCATION – KZN RESPONDENT
CASE NO PSES258-19/20KZN
DATE/S OF HEARING 27 AUGUST 2019- 03 DECEMBER 2019
DATE AWARD SUBMITTED 10 DECEMBER 2019
NAME OF PANELIST SIZIWE GCAYI
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down for arbitration in terms of s191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Ulundi on 27 August 2019, at 10h00. The Applicant was represented by Mr SGE Mdunge. Mr C Sibanyoni an official, represented the Respondent, (Department of Education Kwa Zulu Natal). The proceedings were electronically and manually recorded. The parties were given up until 06 December 2019 to submit closing arguments.
ISSUES TO BE DECIDED
2. I am required to determine whether the dismissal of the Applicant by the Respondent was fair. Further, depending on my finding, l am required to determine the appropriate relief.
BACKGROUND OF THE DISPUTE
3. The Applicant was employed as a temporary educator since 04 February 2008. His salary was R12373-72 a month. On 31 May 2019, his services were terminated by the Respondent as he was an unqualified educator. Applicant seeks reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
4. The Respondent called four witnesses and their evidence is summarised as follows.
5. Mr N Mgoza [“Mgoza”] testified as follows: He is employed by the Respondent as Assistant Director in the Human Resource section. He mentioned that his job duties consists of recruitment selection, appointment, establishment control and persal control. He also mentioned that, they regulate temporary and substitute educators. Appointment of unqualified educators- appointed on the vacant post through the need of the department and substitute educator appointed to fill the vacancy of an educator currently on leave.
6. Ms X Cele [ “Cele”] testified as follows: She is employed by the Respondent as a Circuit manager at Ceza circuit since 01 April 2019. Mhlambansila School was under Ceza circuit. In relation to the termination of the Applicant, she mentioned that as on 01 April 2019, the Applicant was already served with the termination letter. It was served on him in January 2019. On 03 April 2019, there was a meeting between her and the Applicant, where the Applicant explained dissatisfaction about his termination. She investigated the matter. On 24 April 2019, she visited the school of the Applicant [Mhlambansila school] The Applicant was not at school. On 09 May 2019, she went with the circuit team to the school and the Applicant was not at school. On 16 May 2019 she visited the school and met with the Applicant. In their discussion, the Applicant informed her that he had a pending case with the department.
7. Ms ST Luthuli [“Luthuli”] testified as follows: She is employed by the Respondent as Deputy Director for Human Support services. Her duties included recruitment and termination of services for employees. In commencing her duties, she was instructed to implement the termination of unqualified educators on the system. The Applicants name was amongst the names to be terminated. She further mentioned that, she had a one on one session with the Applicant. The Applicant provided her with his academic record. The Applicant was last registered in 2011. The Applicant was not a qualified educator, the termination of his services was fair, the Applicant was replaced with a suitable qualified educator. He was given 30 days’ notice.
8. Mr BA Zwane [“Zwane”] testified as follows: He is employed by the Respondent as the Manager for Human Resource Services as from 01 January 2016. He is responsible among other duties for provision of educators in the system, HR administration in respect of public personnel, persal and establishment in the entire organisation. He further explained that the purpose of HRM 100 of 2011. It was meant for the protection of temporary unqualified educators. The department of education KZN had categorize of temporary educators namely: Unqualified educator, Professionally unqualified educator in possession of a degree or diploma. Before 2010 or as at 31 December 2010 educators who occupied posts were provided with protected status, on condition they were registered with the recognised institution of higher learning towards the teaching qualification. To enjoy the protected status, an agreement was concluded between the educator and the Respondent. On annually basis the educator had to submit the academic record or transcript. For unqualified temporary educators not studying, their contracts were to be terminated at any time should a suitable qualified educator be appointed. They were to be given 30 days’ notice. In relation to the Applicant he mentioned that, the termination of the Applicant met the requirements of termination as he was given 30 days’ notice. On the persal system the reason provided for termination was resignation. It was written resignation to afford the employees an opportunity to re-join the department without the difficulties.
9. The Applicant called no witness in support of his case. He testified as follows:
He was employed by the Respondent as an educator since 2008 until 2019. He last received his salary on 30 April 2019. For the month of May 2019, he did not receive his salary. He approached the district office and was advised that he resigned as per the system. He mentioned that he never resigned. He further mentioned that, since he joined the department, he continued with his studies. It was in 2018 that, he had financial difficulties, he did not afford the school fees. He had one module outstanding. He last submitted his academic record in 2016 in the circuit managers’ office. As from 2010 he was a protected educator provided he continued with his studies. Bundle “A” was a letter to medical aid GEMS. He taught scarce skills subjects: Accounting, Business studies and EMS.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. Section 192(1) of the LRA places an onus on the employee to establish the existence of dismissal. In this matter the existence of dismissal is not in dispute. The onus now shifts to the Employer in terms of section 192(2) of the LRA to prove on the balance of probabilities the substantive and procedural fairness of the dismissal.
11. Procedural Fairness: The Applicant testified and under cross-examination, he confirmed that he was served with the termination letter. Bundle “A” p.g 34. As per the letter he was given 30 days’ notice. The Applicant failed to challenge the Respondent on procedural fairness. Section 37 of the Basic Conditions of Employment Act 75 of 1997[ BCEA] provides that “Subject to section 38 a contract of employment terminable at the instance of a party to the contract may be terminable only on a notice of not less than – ( c )(i) Four weeks if the employee has been employed for one year or more.”
12. In this matter the Applicant was employed for more than a year. The Applicant was given four weeks’ notice. The Respondent complied with the above section in terminating the services of the Applicant and such find the dismissal of the Applicant procedurally fair.
13. Substantive Fairness: In determining fairness of the dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal, Schedule 8 of the LRA as amended.
14. Respondent in trying to prove its case led evidence of four witness. Their evidence had been summarised above, it will not be repeated. Their evidence was clear even though there were contradictions however not material contradictions. The evidence of the last witness Zwane was clear, it gave clarity on all the uncertainties that previous witnesses struggled to give answers to. What all the witnesses of the Respondent agreed on was that, the Applicant was a temporary educator who enjoyed the protected status. The Applicant lost the protected status when he stopped studying towards teaching qualification.
The Applicant testified himself and called no other witness in support of his case. The Applicant confirmed he was a temporary educator not a qualified educator. In 2010 he entered into an agreement with the Respondent. He enjoyed the protected status. His studies were to be concluded in 2015. In 2018 the Applicant did not register for his studies due to financial constraints. It is very clear that the Respondent had a reason to terminate the services of the Applicant. The reason for the termination was known to the Applicant. It was the Applicants evidence that at the time of termination of his services, he was not a qualified educator. The Respondent secured the services of the professional qualified educator. The Applicant was aware at all times should the Respondent secure services of professional qualified educator, his services would be terminated as per Bundle “A” p.g 3,6,10,13. Respondent had a fair and valid reason to terminate the services of the Applicant and as such, I find the dismissal of the Applicant substantively fair. The Respondent discharged the onus placed on it in terms of section 192(2) of the Labour Relations Act 66 of 1995 by proving that the dismissal of the Applicant was fair.
15. The dismissal of the Applicant M Gcaba was substantively fair and procedurally fair. The Applicant is not entitled to any relief.
Commissioner: Siziwe Gcayi
Sector: Basic Education