Case Number: PSES13-18/19KZN
Applicant: Mbatha BH
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Provision of Benefits
Venue: offices of the Department of Education
Award Date: 4 March 2020
Arbitrator: NKOSINATHI MKHIZE
Mbatha BH “the Applicant”
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”
Case Number: PSES13-18/19KZN
Last date of arbitration: 07 October 2019
Date of Award: 04 March 2020
Education Labour Relations Council
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Tel: 012 663 0452
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DETAILS OF HEARING AND REPRESENTATION
1. The hearing of the arbitration was concluded on 07 October 2019at the offices of the Department of Education – Newcastle. The Applicant, Mr. BH Mbatha appeared in person and represented himself. The Respondent, Kwa-Zulu Natal Department of Education, represented by Mr. Mdlalose, its employee.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
2. The arbitration takes place in terms of the referral of the dispute by the Applicant. The Applicant was employed by the Respondent as an educator. The Applicant alleges that the Respondent committed an Unfair Labour Practice related to the non-payment of his salary for the month of July 2018, in terms of section 186(2)(a)of the LRA, i.e. unfair conduct related to – promotion, demotion, probation, training or benefits.
3. The award was delivered late as the arbitrator had some personal problems to deal with that prevented him from delivering the award on time. The non compliance in that regard is regretted and the indulgence of the parties is hereby sought.
Applicant’s evidence and argument
1st Witness – Mr. BH Mbatha (‘Mbatha’)
4. Mr. Mbatha testified under oath that he worked for the respondent at Phuzukubona Public Secondary School as a temporary educator in July 2018 but was not paid her salary. He was told by the school principal to start working and he did just that. He trusted the principal.
5. He accepted that the principal should not have caused him to start work before the district director had approved his appointment. He however felt that he should have been paid for the time he worked there, even if it was half of it.
6. In fact he had worked for the same school before the schools closed for the June holidays. The contract of employment between him and the respondent ended when the schools closed. The principal then told him to come back in July and work.
7. His claim was not for the number of days worked but for the whole month.
Respondent’s submission – Mr. Mdlalose (‘Mdlalose’)
8. Mr. Mdlalose submitted that the school principal (Mr. Ncala) applied for an appointment of a temporary educator, Mr. BH Mbatha on 20 July 2018.
9. There were certain documents that were completed for that application, including Pro Forma 2 for the signature of the Circuit Manager (inspector of schools).
10. The application document was submitted to the district on the 24th of July 2018. It was then processed accordingly in terms of HRM no 13 of 2018.
11. The resumption of duty could only happen after the district director had recommended the appointment. That recommendation was subject to the approval by the Head of Department (HoD). The HoD approved the appointment of the applicant effective from 27 July 2018 up to 30 September 2018. The applicant was paid for the approved period.
12. Any days prior the 27 July 2018 could not be accounted for by the Department as no authority had been granted for the Applicant’s assumption of duty. There was one district director who could recommend on those types of appointments.
13. It was not the first time a temporary educator was appointed at that school. On all other occasions, the HRM no. 13 of 2018 was followed, there were never any challenges.
14. Even though it could happen that the principal could call a temporary teacher to come and resume duty that would not however be his decision but that of the SGB or the HoD (as an employer).
15. The Applicant was not supposed to resume duty at any time before 27 July 2018 as per page 5 of the bundle, where it was clearly shown that the recommendation for the placement of the applicant was made by the district director on that date.
16. It was the responsibility of the school principal to see as to how he secures the resources he needed to teach the children within the provisions of circular no. 13 of 2018.
17. That the HRM circular was to the effect that any educator who would start work without the provisions of the circular having been followed, would mean that that educator was not employed or working for the Department at that time but for someone else.
ANAYLSIS OF EVIDENCE
18. The Applicant was appointed as the Respondent as a temporary educator for the period 27 July 2018 to 30 September 2018 but it so happened that he started before the necessary appointment was approved. The Applicant testified that he started earlier than the 27th of July 2018 but was not paid for that earlier period.
19. The Respondent submitted that the HRM circular no. 13 of 2018 was very clear in that, temporary educators could only assume duty after the district director has recommended the appointment. The circular provides that the substitute and temporary educators (in order to fast track the assumption of duty process) may be allowed to assume duty after the recommendation of the District Director has been forwarded to the Head of Department for approval. That circular was issued by the HoD in his capacity as the employer in terms of the Act.
20. The District Director made the recommendation for the appointment of the application as a temporary educator on the 27/07/2018 and therefore in keeping with the provisions of the circular, the applicant could not have assumed duty before that date.
21. The request letter for the extension of the Applicant’s contract was done by the principal on the 20th of July 2018 (see page 6 of the bundle). It would appear that the letter was drafted whilst the applicant was on the post. That was therefore not in compliance with the circular no. 13 of 2018. I found that circular to be flexible enough not to be executable.
22. I found that the Respondent correctly decided not to pay the Applicant for the period before the 27th of July 2018 because at that time he was not properly employed.
23. The conduct the Applicant complains of does not amount to an unfair labour practice.
24. The Respondent, Kwa-Zulu Natal Department of Education did not commit an unfair labour practice against the Applicant, Mr. BH Mbatha.
25. The Applicant’s application is therefore dismissed.