Case Number: ELRC113-20/21EC
Province: Eastern Cape
Applicant: Matera, Asavela
Respondent: HOD, Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 21 October 2020
Arbitrator: M HUBER
CASE NUMBER ELRC113-20/21EC
In the arbitration between
HOD, Department of Education Eastern Cape RESPONDENT
Details of hearing and representation
1. This matter was held on 16th September 2020 at 10H00 via MS Teams. The Applicant, Ms. Matera, was represented by Mr. Mbulelo Nguta of Mgangatho Attorneys. The Respondent was represented by Ms Sonja Septoe from the Department of Education.
2. The parties submitted their closing arguments in writing, with the Respondent’s arguments being received on the 25th September 2020. The Applicant’s representative indicated that no responding written submissions would be made by the Applicant.
The issue to be decided
3. The issue to be decided is whether the ELRC has jurisdiction to hear this matter. The Applicant is obliged to prove that she was an employee in the employ of the Respondent and that on this basis the Council has jurisdiction to hear her application regarding an alleged unfair dismissal.
4. If the ELRC finds that it does have jurisdiction, then the issue to be decided is whether or not the Applicant was unfairly dismissed by the Respondent. It should be noted that the Applicant’s representative sought to change the ‘issue in dispute’ to a claim for unpaid remuneration for the period that the Applicant was allegedly an employee of the Department of Education, because subsequent to the referral and set-down, the Applicant had received a letter from the office of the Superintendent General (“HOD”) of the Eastern Cape Provincial Department of Education offering her employment as an educator with effect from 3 August 2020.
5. The Respondent objected to the Applicant’s proposal to amend the ‘issue to be determined’ and the Applicant then abandoned this request and indicated that they would proceed with the unfair dismissal claim, should the Council rule that it does have jurisdiction.
6. The relief sought by the Applicant if she is successful in her unfair dismissal claim is reinstatement with full backpay.
Can jurisdictional points be left for determination at the arbitration stage?
7. Ms Septoe, representative for the Respondent, raised concerns and expressed her confusion at the outset of the matter, and cited case law in the closing arguments submitted on behalf of the Respondent, regarding the jurisdictional argument raised by the Respondent at the conciliation stage and again at the outset of the arbitration hearing, that the Applicant was not an employee of the Department and the Council therefore did not have jurisdiction to hear her unfair dismissal claim. The Respondent queried why the jurisdictional argument had not yet been determined by the Council and was still pending.
8. It is necessary to clarify this from the outset. A pre-arbitration agreement was reached between the parties to this matter, which records the following:
“4. The issues that the council is required to decide
The council will be required to determine whether the Applicant was an employee of the Department and, if so, the nature of her employment (indefinite or fixed term) and whether she was dismissed and, if so, whether the dismissal was unfair.”
9. The parties therefore agreed that the jurisdictional matter would be determined at this stage. The reason for this is that this specific jurisdictional matter, which the Applicant has the onus of proving, requires the Applicant to lead evidence that would also be applicable to the merits of the further application, should jurisdiction be found to exist.
10. The Respondent’s referenced authority, Bombardier Transportation (Pty) Ltd v Mtiya and Others , supports the process that is being followed in this matter – with the jurisdictional point identified at conciliation stage being left to the arbitrating commissioner to determine. In this matter, van Niekerk, J, at  confirmed:
“On this approach, rule 14 does no more than require a conciliating commissioner to give proper consideration to any jurisdictional points raised, including an assessment of whether it is a ‘true’ jurisdictional point and if so, whether it is reasonably capable of being disposed of prior to conciliation, or properly left to the arbitration stage. The proper response of a commissioner to jurisdictional challenges can therefore be summarised as follows:
1. When a respondent issues a jurisdictional challenge to a properly completed referral form, a conciliating commissioner may elect to determine the jurisdictional question or to defer it. In making that election, the commissioner will generally regard a challenge to the effect that the dismissed person was not an ‘employee’ as defined or that she was never dismissed as matters that are not truly jurisdictional issues, and defer the challenge to the arbitration phase. In respect of other challenges, the commissioner ought to be guided by the nature of the challenge, the extent to which matters are intimately bound up with the substantive merits of the dispute, the determination of difficult questions of mixed law and fact, and the need for evidence to resolve them.
11. The Court in this matter further indicated that Rule 14 only requires the conciliating Commissioner to give proper consideration to jurisdictional points raised. The conciliating Commissioner thereafter has the election to either determine the jurisdictional question or divert to the Commissioner arbitrating the dispute.
12. The Labour Court in Bombardier Transportation (supra) cited with approval the Labour Court judgement in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others which succinctly explained the need to leave the determination of certain jurisdictional points to the ‘arbitration phase’, as follows:
“ In general terms, it seems to me that despite the wording of Rule 14, jurisdictional points are better determined after the hearing of evidence (and subject to the commissioner’s direction) at the arbitration phase in terms of rule 22 of the CCMA Rules. This is particularly so in regard to points such as whether the referring party was an “employee” as defined by s 213, or was “dismissed” for the purposes of s 186. In practical terms, the only jurisdictional points that appear to be relevant at the commencement of the conciliation phase are those that relate to the time limits for the referral of disputes to conciliation that the Act prescribes (where there is no application for condonation for a late referral), or whether a bargaining council has jurisdiction over the parties to the dispute (in the absence of any exercise of the discretion conferred by s 147), and perhaps whether on the face of it, the dispute referred for conciliation is not one that is contemplated by the Act, i.e. the dispute concerns a matter other than a matter of mutual interest between employer and employee. To permit other points in limine (especially those that relate to employment status and the existence of a dismissal) to be raised at the conciliation phase and to require them to be determined in terms of Rule 14 at that stage frustrates an important purpose that underlies the Act (i.e. that disputes should be resolved expeditiously with the minimum of formality) and potentially opens the door to multiple jurisdictional challenges and piecemeal applications for review.”
13. It is therefore understandable why the Applicant and the Respondent agreed, in the pre-arbitration minute, that this jurisdictional point should be determined after hearing evidence, at the arbitration phase. This jurisdictional question needs to determined and ruled on first, and only it is determined that the Council does have jurisdiction, can the Commissioner continue to determine and rule on the Applicant’s claim of unfair dismissal.
14. The Applicant submitted a bundle of documentary evidence, which was assessed in terms of whether each document was accepted, or not, by the Respondent.
15. The Respondent submitted one document only, which was a letter from the Principal of Ashton Gontshi School. The Applicant accepted the document and accepted its content as being accurate and indicated that the Principal would not be required to testify to confirm the contents of the letter. The Applicant indicated that some of the points in the letter would be disputed, specifically legal points, and these would be brought into their legal argument.
Matters that are common cause
16. After hearing opening statements and establishing the status of the parties’ documentary evidence, it became clear that there were a number of issues that were common cause, as reflected below.
17. The Applicant taught at Ashton Gontshi Primary School as an intermediate phase teacher, with her first day in the classroom being the 3rd February 2020.
18. Ashton Gontshi did not have a contingency plan to keep the learners occupied during the lockdown, and teaching did not continue during lockdown.
19. Educators employed by the Department were however paid throughout lockdown, therefore if the Applicant is found to have been an educator employed by the Department, then she would have been entitled to salary payment during lockdown, as all educators were paid over this period, whether they worked or not.
20. The Applicant was not paid any remuneration or salary during the period which she worked at the school.
Matters that are in dispute
21. It is disputed that the Applicant was employed as an educator by the Department of Education.
22. The date that the Applicant stopped working (and therefore the date of her alleged dismissal, should this be applicable) is in dispute.
Survey of evidence and argument
23. A summary of the evidence of the witnesses is set out below. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Labour Relations Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter. The proceedings were digitally recorded.
24. Ms Asavela Matera gave evidence under oath. She completed her exams in October 2019 and went to a few schools in Port Elizabeth, where she was told that she needed to go to the Department of Education if she wanted to be employed, because schools do not hire teachers directly. She went to the Department of Education and was told she would be dealing with Mr. Twigg. She dealt with his PA, Minnie. Mr. Twigg is the Head of Human Resources at the Department.
25. Ms Matera was told that she needed to add her SACE certificate and the remaining academic records. She travelled to Pretoria for her SACE certificate and was unable to submit her documents in 2019.
26. In 2020 she went to the Department with all of her documents, and Mr. Twigg’s PA was not there so she dealt with Mr. Twigg directly. Mr. Twigg asked her to clarify her academic record with Rhodes, as it stated that she had incomplete courses. She did this and returned to the Department. Minnie was there and she took all of the documents. Minnie informed her that there was a Principal who was looking for an intermediate teacher, she went into Mr. Twigg’s office, and she ‘ran back and asked if [Ms Matera] could go to Uitenhage’, it was a Friday, so the schools close earlier.
27. Ms Matera rushed to the school, and when she arrived there the Principal said ‘oh you are the one that the Department sent’. Ms Matera could not speak to her but left her CV. Ms Matera was called and asked to bring herself to the school on the 3rd February 2020. She arrived at the school on the 3rd February 2020 and the Principal introduced her at the Staff Briefing as ‘the teacher taking the place of the English teacher who had left’.
28. She signed documents, an assumption of duty form, an appointment letter, and as she was working she would get calls from Mr. Twigg saying she needed to submit certain documents, for example SARS and a bank document. She would also call Mr Twigg to ask what was happening, she had not been paid and he told her not to worry as all of her documents were there.
29. She testified that there is also a general understanding in the Eastern Cape that teachers can work for 6 months or a year as an educator without getting paid, so her understanding was that she would eventually get paid for everything.
30. At one stage she and another teacher, Ms. Bangiso, got a lift with a temporary teacher to the Department, she wanted to ask questions because her appointment was not finalised and she wanted to ask what she needed to do to get transferred to another school, because she did not have a Persal number. The Department of Education does not have electricity and that was ‘the excuse’ or ‘the reason why’. She went into Mr. Twigg’s office and he ‘searched and searched’ and said he could not find her file. There was also a change in PA’s, the office had also moved. Mr. Twigg searched for her file and came back and told her he could not find her file and she should call him the following morning to remind him to search for her file so he could sign and officialise everything.
31. She called him the following morning and he was ‘not the normal Mr. Twigg that she knew’. She asked if he had found her file and he told her she should speak to the Principal and told her to stop calling him, and that she should direct all of her questions to the Principal.
32. Even during the process of lockdown, she would keep calling the Principal to ask when she would be getting paid. The Principal told her that they were still processing; and she hinted that there was a problem with the post she was in, with them ‘not liking my qualifications’ but she had said that that had all been sorted out. The Principal’s understanding was that her appointment was already finalised, and she was just waiting for payment of salary.
33. The Principal had told her that the process was even slower in the department, especially now, with lockdown.
34. In June she started getting impatient, and went onto Facebook and posted to see if there were any other teachers in the same situation she was in. There was a petition going round by SADTU about teachers who were not getting paid, and that they should forward their details to SADTU. She forwarded her details to SADTU and told them she did not have a Persal number. They told her that the Department had never hired her and that she should take it up with the Principal. She took it up with the Principal who told her not to worry. The response from SADTU is what made her post on Facebook and the response was that she should not be working.
35. Ms Matera testified that she had never interacted with the SGB but heard that they had been unhappy because they had already hired somebody else, but the Principal told her that the person the SGB hired could not be employed by the Department because she was from the Western Cape, so the SGB could not do anything because Ms Matera had been referred by the Department.
36. Ms. Matera testified that she did not know many details about the person she replaced, other than she had been an English teacher and had worked for the Department.
37. Ms. Matera testified that while she was teaching at the school, policy representatives would come to the school. She was very busy teaching, but the Principal sent people to fetch her from her class. The general perception was that she was young and did not have many policies, so she took up policies, and then said to the Principal that she had encouraged her to take up the policies, but she did not have the money to pay them. She asked if she could get a letter from the Principal for this, and the Principal said Ms Matera should type one up and the Principal would be willing to sign it, which she said, referring to a letter in the Applicant’s bundle.
38. Ms. Matera said she had contacted someone who was working at the Department who told her that the general rule is that she was not supposed to work at the Department without the ‘thing’ being formalised. She then shared this with the Principal who told her that she had already been appointed. She told the Principal that she did not have money to take the two taxis to work every day, and the Principal said she would speak to someone, to speed up her salary etc, and she told Ms. Matera that maybe she should not come to work because if there is nobody in the post the Department would pay her.
39. Ms. Matera, in response to a question, testified that she was aware of one SGB teacher who left when she arrived, and another temporary teacher who was filling in for a teacher who was on sick leave at the Department, and she was employed by the Department.
40. Ms. Matera said that she had not been paid at all, and she expected to be paid by the Department. If the role had been an SGB role she would not have taken it. She explained the other job options she had which she had not taken due to the Departmental post at the school which was permanent. She testified that she had never dealt with the SGB, she might have dealt with them about a learner, but never about her role. Her understanding was that she was hired by the Department.
41. When asked to repeat what the Principal had said when she introduced Ms. Matera, she said that the Principal introduced her as the teacher sent by the Department, the understanding was that she was a temporary teacher, an English teacher, hired by the Department.
42. Ms. Matera testified about a document in the Applicant’s bundle which she said was a Support Needs assessment form, which, if she were not a teacher hired by the Department, she would not have been allowed to get that form. She said that it is a long term assessment and teachers hired for short periods would not get that form. She then testified to the printed WhatsApp messages between her and the Principal.
43. Under cross-examination Ms. Septoe informed Ms. Matera that Mr Twigg is a Deputy Director, and Minnie, his PA, had passed away after a motor accident.
44. Ms. Matera testified that she was not a bursary holder, and that her SACE certificate was a temporary one as she did not have her degree at the time, so she needed to renew it. She conceded that the Support Needs assessment form does not stipulate that it is given to permanent members of the Department, but that she had learned that in her degree. She conceded that her name was not on the form.
45. Regarding the message on page 23 of the Bundle, where the Principal had told her that she had an appointment with Mr Twigg to sort out things, and that there was effectively a problem with the post profile and her teaching subjects, Ms. Matera said that this message was from after lockdown. Ms Septoe referred her to the Principal’s letter, the Principal said, on the 23rd March, that Ms. Matera’s qualifications did not match the post. Ms. Matera responded that when she received the message from SADTU, she sent the screenshot to the Principal who had mentioned something like ‘initially there was an issue with profiling of the post with her subjects’.
46. Ms Matera said she had only received the response on WhatsApp towards the end of lockdown, from SADTU, when they told her that the Department did not hire her, the subjects do not match her profile, and that was the first time she heard this. She heard about it and the Principal said it was already sorted out.
47. Ms. Matera was referred to the letter from the Principal, page 1 of the Respondent’s Bundle, where the Principal stated that on the 23rd March Ms. Matera received a message from Ethel Valentine (the Department) to say that the school post did not match her learning areas. Ms Matera said that it was incorrect, she did not receive this message.
48. Ms Matera also disputed the Principal’s version in this letter that the school had received a list from the Department and had selected her from that list, because she arrived at the Department and that same day, Minnie told her about the school and said she should go there, which she did, on that same day. Ms. Matera confirmed that the Principal had phoned her, as set out in the letter.
49. Ms. Matera confirmed that she did not have copies of the documents she submitted to the Department and did not have any documents on the Departmental letterhead to say that she should go and teach at Ashton Gontshi school. She confirmed that all of her interactions, such as ‘you must start working, you must teach these subjects’ came from the Principal. The letter that Ms. Matera wrote to confirm her work history had been written by her, and the Principal had signed it, with a school stamp.
50. Ms. Matera testified that this was her first job after graduating and she did not have knowledge of ‘proper procedures’ for starting work. In her previous part time job, she had been told to start working, which she did, and she got paid.
51. Ms Septoe asked Ms. Matera who, besides SADTU, herself and Mr Twigg telling her she was not employed by the Department, has told her that she was employed by them. Ms. Matera responded that Mr Twigg had not told her that she was not employed by the Department. Ms Septoe asked if they had told her to start working, and Ms. Matera said that they had sent her to the school, being the Department. Ms Septoe clarified that it was Minnie, the PA, who had sent her to the school, and asked whether a secretary should do that. Ms. Matera said she was not just a secretary, she was the person who put the names on the list if they were not on a departmental bursary, you had to go to her to get on the list.
52. Ms. Matera said she had gone to Mr Twigg and told him she had just got out of school, and surely he should have told her that she should not be working.
53. Ms. Matera agreed that she had not received an employment letter from the Department of Education and said that she thought that the documents she was submitting was an appointment letter, one was an assumption of duty letter.
54. Under re-examination, Ms Matera said that she did not understand the recruitment processes of the Department, she knew that Principals could no longer hire teachers and she needed to go to the Department. She submitted her documents to Mr Twigg and believed it was a ‘done deal’. She believed Mr Twigg was a person of authority because when she was at school, one of the other temporary teachers who had other documents gave them to me to be submitted to Mr Twigg, and everyone was talking about Mr Twigg. She initially thought Mr Twigg was the Director of the Department, and then she thought he was the head of HR.
55. The second witness for the Applicant was Ms Bangiso, who testified that she is a foundation phase teacher at Ashton Gontshi Primary School. She said that Ms Matera was introduced at the beginning of the year as the new teacher appointed to replace the teacher who had been dismissed the previous year. Ms Matera was also introduced to the learners as their new teacher.
56. It was the same as her (Ms Bangiso’s) appointment, Ms Matera was someone who went to the Department and the Department said they had someone for them, and they meet the requirements, the school took her and they all knew she was part of their staff.
57. She confirmed that after a week or two of working at the school, Ms Matera was asked to submit her banking details, so they went together to the bank to get the document. After about a month she was asked for proof of her qualifications again, not her CV, and she testified that Ms Matera was told to work before she was given a letter of appointment, and she had always been asking where her letter of appointment was, and then she was asked to provide documents to show she was able to teach, so she was submitting those documents.
58. Ms Bangiso said that Ms Matera met with Mr Twigg, and at the school they always got referred to him, they did not know his position but knew they had to deal with him.
59. Under cross-examination Ms. Bangiso said that Ms Matera was introduced by the Principal and she had no reason to doubt Ms Matera’s appointment, because the school authorities introduced her, and she was teaching the same subject taught by the previous teacher.
60. She said that she was aware that Ms Matera had been told that she was not qualified to teach the specific subjects, the Principal had told her, and Ms Matera reported that the Principal and a member of the SMT were told to rectify it, and they confirmed that they had rectified it. After they rectified it they told her she could continue working as the Department had fixed the problem. This happened before lockdown.
61. In response to a question as to what gave her the authority to teach, Ms Bangiso replied that the Department would call her, she would go to the school to check if they were on the list of schools who called her, the Principal called the office of Mr Twigg who confirmed that Ms Bangiso was on the list and therefore could start working in February. The school asked her to start working in January, and she knew that it would be ‘free’ because she was supposed to start in February. On the 20th February she had started enquiring as to when she would be getting a letter and getting paid. She was told that unfortunately she was not supposed to be hired, and she did not want to fight and just went home.
62. The Principal then received a letter stating that she should start working on the 28th February. She only got paid for the month of March, and said that she was confused, because she understood she would not get paid in January, but the Department had told her to start working in February, she thought she was appointed, the Principal had told her to start work from 1 February, the Principal employed her so she thought it was okay, but “I know if there is no agreement I am not entitled to anything”.
63. The Respondent did not call any witnesses and submitted a written closing argument.
64. The content of the closing argument is reflected here:
“It is a known phenomenon that, specifically with disputes dealt with by the Education Labour Relations Bargaining Council (ELRC), that two (2) types of employees are distinguished – one being those employed by the Department of Education and the other not being employed by Department of Education (these employees in most, if not all, employed by that school`s governing body who is responsible for paying these employees and the ELRC does not have the necessary jurisdiction over them).
The appointment of educators within the Department of Education is statutorily regulated by the provisions as set out in section 6 of the EEA4 , Act 76 of 1998 as amended , read with the procedure as set out in Chapter B of the PAM 5
By self-admission by the Applicant in its Heads of Argument, it is confirmed that the Applicant was not in possession a letter of appointment for the period in dispute (February to July 2020) and subsequently only received her Appointment letter for 3 August 2020 at which her employment Contract commenced with the ECDOE. The Applicant`s claim of her “attempts with numerous officials” to secure a Letter of Appointment with ECDOE cannot be regarded conclusively as an employment contract with ECDOE. Respectfully, the Applicant should direct its claim against another entity (if any) if she had tendered services.
The issue of the Applicant accepting her appointment letter /contract of employment for the 3 August 2020 and thereafter raise issues as within the referral under the rubric of “an unfair dismissal” because she seeks to be salaried prior the official approval of her contract, appears rather brazen . As raised previously, in the event another entity other than state allowed her to tender services, her claim shall reside against that “entity”.
The citations the Applicant relies upon, the BCEA and the LC White v Pan Palladium SA (Pty) Ltd (2006), respectfully appears somewhat misplaced if the merits of this particular Applicant is taken into consideration. In this scenario, the Applicant was appointed under the auspices of the EEA, 76 of 1998 as amended with its own statutory provisions on appointments.
To be salaried prior the official approval of her contract, appears rather brazen. As raised previously, in the event another entity other than state allowed her to tender services the Applicant. The issue of the “hearsays” of who said what to whom holds no basis. The contract came into effect when the COVID-19 was relaxed and the duly authorised letter of appointment was issued.
By self-admission (as raised in the beginning), in paragraph 37 of the Applicant`s Heads, there is affirmation that the rubric of her dispute has changed (strangely it is no longer an unfair dismissal), and further raised monetary claims (the new rubric or type of dispute is not defined and respectfully “shamefully” the Applicant is also seeking legal costs for her undefined referral.
Needless to further argue, the view is strongly held that the Applicant has not dispute in this forum and stands to be dismissed.
It is common cause that the delegated authority to appoint post level 1 educators at schools reside with the District Director of the Nelson Mandela Bay Education District, Mr. E. Gorgonzola.
On 17 January 2020 the principal and the School Governing Body of Ashton Gontshi Primary School, profiled the vacancy as Technical Studies and Creative Arts, Grade 7.
The Curriculum Vitae of Ms. Matera was later submitted.
On 24 February 2020, the school was informed that the applicant does not fit the profile of the post and therefore the appointment cannot be affected.
The Applicant claims that she was never informed by the principal. However, the witness of the Applicant, Ms. Bangiso testified that she, the applicant, was made aware of the misfit to the profile of the post. Both the applicant and the witness were unsure if this occurred before or after the lockdown period.
The Applicant claims that the delay in the expected payment of her salary was due to the lockdown period from 26 March 2020. The Respondent wants to stress that this period never delayed any salary payments for any educator who received an appointment letter from the Office of the District Director.
Again we want to stress that the principal of the school is not the employment agent of the department and that no appointments are made outside of the prescribed legislation which includes a letter of appointment signed by the District Director. This is evident in the Letter of appointment received by the Applicant with a clear date of appointment as 03 August 2020.
Incidentally, the re-profiling of the post in which Ms. Matera claims to be “appointed” was only received on 05 August 2020.”
Analysis of evidence and arguments
65. It is unnecessary to conduct a detailed analysis of the credibility of the evidence provided by the two witnesses for the Applicant, on the basis that this matter turns on whether the dealings between the Applicant and the Department, as well as between the Principal and the Applicant, together with the documentary evidence submitted, is sufficient to prove that the Applicant was an educator employed by the Department of Education for the period which she worked as a teacher at Aston Gontshi Primary school, prior to 3 August 2020.
66. It is common cause that the Applicant had (subsequent to the lodging of this dispute) been offered employment as an educator, from the Department, commencing 3 August 2020.
67. The letter is a provisional offer, and is a temporary appointment, conditional upon the Applicant being required to submit proof that she is in possession of a PGCE certificate, together with certified copies of her complete academic statement, to “this office ”, failing receipt of which her employment will expire on 30 September 2020. In addition, on receipt of those documents, ‘the nature of her appointment will be reconsidered’, meaning that even upon submission of the documents, the Department would need to study them to determine the nature of her appointment.
68. Based on the evidence from the Applicant and her witness, Ms Bangiso, it is clear that the Applicant believed that she had been appointed by the Department of Education as an educator, she worked as a teacher at Ashton Gontshi Primary School while under this understanding, and the factual evidence provided by her (not the evidence to the effect that she was in fact appointed by the Department) was largely undisputed by the Respondent, other than the lack of evidence and clarity relating to what documents she had furnished to the Department, and the date that she heard that her subjects did not match those of the post profile, prior to this ‘being rectified’, also at an undetermined date.
69. The question of whether the Education Labour Relations Council has jurisdiction over the Applicant is not determined on the basis of whether the Applicant meets the presumption as to who is an employee or not, in terms of section 83(1) of the Basic Conditions of Employment Act or section 200A of the Labour Relations Act in one of the arguments submitted by the Applicant. Firstly, these sections do not apply to persons who earn in excess of the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act, which, on its own version, excludes the Applicant . The current earnings threshold is R205 433.30 per annum. These sections therefore do not apply to the Applicant.
70. However, this presumption (in sections 83(1) and 200A, above) would only indicate that the person is an employee, as a rebuttable presumption. Whereas the Applicant in this matter bears the onus of showing that the Council has jurisdiction:
“Part C: ELRC Constitution
17.7 Jurisdiction to arbitrate
If at any stage during arbitration proceedings it becomes apparent that there is a jurisdictional issue that has not been determined the panellist must require the referring party to prove that the Council has the necessary jurisdiction to resolve the dispute through arbitration.”
71. The Applicant bears the onus of proving that the Applicant was employed by the Department as an educator in terms of the ELRC Constitution, for the purpose of proving jurisdiction, even if the Applicant’s earnings were below the threshold and the two sections of the LRA and BCEA respectively applied to her. The question is not whether the Applicant was an employee, but whether she was an educator employed by the Department of Education as per the full provisions of the Council’s Constitution.
Constitutional Scope of the Education Labour Relations Council
72. The Constitution of the Council provides as follows:
“6. Constitutional Scope
6.1 The registered scope of the Council extends to:
6.1.1 The Basic Education sector, consisting of the State in its capacity as employer and those employees in respect of which the Employment of Educators Act, 1998, applies;
73. The Applicant argued that a written contract of employment is not required for an employment relationship to exist, or for a contact of employment to exist. This is in terms of common law and confirmed by case law referred to by the Applicant. The Applicant has also referred to the ‘ostensible authority’ legal concept, and that this then allows someone with apparent authority (in this instance, Mr. Twigg), to enter into contracts of employment on behalf of the employer (the Provincial Department of Education) even where they do not have actual authority, and to bind the employer in, in this instance, to an unwritten contract of employment.
74. The Applicant’s evidence did not show that Mr Twigg, directly and clearly, entered into a contract of employment, albeit unwritten, with her, on behalf of the Department. It was his PA, Minnie, who represented the Department when referring the Applicant to the school. Mr. Twigg did not tell the Applicant to commence work at the school. The Principal did this. There is no evidence, even in the form of indirect evidence, other than vague comments attributed to Mr Twigg through the hearsay of the Applicant and the Principal, that referred to payment of salary being due, and at some stage to be made, to the Applicant. There is also no evidence that Mr Twigg had any authority to enter into contracts on behalf of the Department. Ms Matera and her witness, Ms Bangiso, were fully aware that a written employment offer were needed from the Department (albeit Ms Matera believed that this could be provided to her some time after commencing employment), and Ms Bangiso further confirmed that without that there were no rights relating to salary and employment.
75. It is regrettable that the Applicant was told, by the Principal, to start work, and that she did so, without payment, for however many months she actually worked. It is also unclear when exactly Ms Matera commenced working, as reference is made to January, but starting work on the 3rd February, and then there was no work from 27 March 2020 until lockdown was lifted, which would have been in approximately mid-May or the beginning of June 2020. It is unclear when the Applicant stopped rendering services. The Principal indicates that it was on the 11th June 2020, and the Principal indicated in the written letter (page 1 of the Respondent’s bundle) that Ms Matera attended 4 days of school after the lockdown. The Applicant has not been definitive on this.
76. The Applicant was also made aware, from SADTU, that she should not render her services and that she was not employed by the Department. She indicated that this was after lockdown ended, however this is also unclear.
77. The Applicant has not provided clear evidence that she had the necessary qualifications to be employed by the Department. Her evidence showed that her qualifications or academic record were not regarded as satisfactory by Mr Twigg at some point in time, and the evidence of her and Ms Bangiso’s shows that there was a mis-fit between the Applicant’s subjects and those required by the post that she had started teaching in, although the exact details and timing are unclear. Mr Twigg at some point refused to engage with the Applicant and indicated that he could not find her file, and she should engage with the Principal. The Applicant was fully aware that the Principal did not have the authority to appoint her, however the Applicant engaged with the Principal and relied on the Principal’s reassurances that she was employed by the Department and would be paid.
78. The Applicant therefore has been unable to provide evidence of a fixed ‘starting date’ for her alleged contract of employment with the Department, nor a clear ‘end date’ when she alleges she left, due to non-payment, and was therefore dismissed. The Applicant based her remuneration claim in this arbitration process on the remuneration set out in the offer letter that she received from the Department, after the period of employment that she alleges existed with the Department. There is a significant lack of clarity around the terms of the employment contract that the Applicant has argued she had entered into with the Department.
79. It is clear, and common cause, that the Applicant did render services for the school, and she worked as a teacher at the school. However, there is no direct evidence to the effect that the Department approved her appointment, which they would have been expected to do only after checking that she met the requirements (teaching qualification, SACE registration, subjects taken in her degree) for a specific post within the post establishment approved by the Department.
80. The Applicant argued that there is no legal provision that requires contracts of employment to be reduced to writing, for such contracts to come into existence and to be enforceable / binding.
81. This is not always the case. There are instances where, through binding legislation, some contracts of employment are only binding if reduced to writing or formalised in some manner. For example, contracts of learnership; or candidate attorney contracts (practical vocational training contract), amongst others.
82. The Employment of Educators Act , as referred to by the Respondent in their closing arguments, is applicable to the employment of educators at public schools, as per the ELRC Constitution, and must be referenced when determining whether a person working for a school is an employee over whom the Council has jurisdiction.
83. The Council has jurisdiction over employees in the basic education sector, where the State is the employer, and over employees in respect of which the Employment of Educators Act, 1998, applies .
84. Relevant definitions from the Employment of Educators Act are (my emphasis):
“educator” means any person who teaches, educates or trains other persons or who provides professional educational services, including professional therapy and education psychological services, at any public school, further education and training institution, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act;
“employer”, in relation to any provision of Chapter 4, 5 or 7 which applies to, or is connected with –
an educator in the service of the Department of Education, means the Director-General;
an educator in the service of a provincial department of education, means the Head of Department;
“Head of Department”, in relation to a provincial department of education, means the head of the provincial department of education;”
85. The Applicant would therefore need to prove that she had been teaching at a public school and that she was appointed in a post on an educator establishment under the Act.
86. The Applicant was a ‘first appointment’, and the relevant legislative provisions governing that appointment are (my emphasis):
“6A.(1) Despite section 6(3)(a), in the case of a first appointment or an appointment after one or more years’ break in service to any provincial department of education, the employer may –
(a) receive applications from first-time applicants or applicants returning after a break in service;
(b) process the applications and match applications to vacant posts; and
(c) make appointments to a school subject to subsection (2).
(2) The appointment contemplated in subsection (1) may only be made after the employer has –
(a) consulted the relevant governing body on the specific post and the requirements thereof;
(b) ensured that the applicant to be appointed matches the requirements of the post; and
(c) ensured that the applicant has prescribed qualifications.”
87. Both witnesses for the Applicant referred to the ‘problems’ that had been experienced around the Applicant not meeting the requirements of the post in question – the Applicant’s subjects did not match those of the post. The Principal also referred to this, in the letter that was accepted into evidence.
88. The Applicant disputed the version of the Principal in the letter, relating to when and how she was informed of the problem relating to the match between her subjects and those required by the post (but she agreed that the Principal had made her aware of this), however her witness corroborated the Principal’s version, as set out in the letter Whilst the precise details and timing of the alleged ‘mismatch’ vary, what cannot be ignored is that this is a legislative pre-condition to appointment. Likewise, ‘ensuring the applicant has the prescribed qualifications’ is also a pre-condition to appointment as an educator.
89. The Applicant’s evidence was that the Principal raised this after lockdown started. This would not in the Applicant’s favour, as if correct, it would show that it was well into the Applicant having started working in the post that the Applicant was found to not meet the requirements of the post, thereby having not met this pre-condition for the full period that she had actually tendered her services before lockdown. Irrespective of the date that this occurred, the evidence is clear that it did occur, and in terms of the legislative provisions, an appointment ‘may not be made ’ until after the employer has ensured that “the applicant to be appointed matches the requirements of the post”
90. The Applicant testified that she had obtained her teaching qualification, and she testified that she had submitted this information to the Department. However, the offer of appointment letter that she received with a starting date of 3 August 2020 reflects differently. This may well be an administrative error on the part of the Department, but the issue is that an appointment may not be made until the employer has “ensured that the applicant has prescribed qualifications”.
91. The Applicant did not prove that these two pre-conditions to her appointment as an educator had been met by the time she started working at the school, and evidence in fact pointed to their having not been met, certainly not from the outset of her starting to work for the school, or some time into this period, and even at the point of August 2020, the pre-condition relating to the Applicant’s proof of qualifications had not been met.
92. The Labour Court in Phera v Education Labour Relations Council and Others had occasion to review the ruling of an arbitrator from the Education Relations Council that the Council did not have jurisdiction in that particular matter due to fact that a pre-condition of the appointment had not been met and the applicant in that matter was therefore not an educator employed by the Department. The issue before the Labour Court was a review of the arbitrator’s ruling:
“ At the arbitration hearing, third respondent raised a point in limine and stated that the ELRC had no jurisdiction to hear the matter as no employment relationship existed between the applicant and the respondent. The finding by the second respondent was that the ELRC “has no jurisdiction to entertain this matter as there is no issue of unfair labour practice since the applicant was never an employee of the respondent and that applicant was blacklisted on the persal system”.
93. The issue before the Labour Court in the Phera matter involved a conditional appointment, where the clear pre-condition, known to the Applicant, was not met, and while this matter involves an Applicant claiming that she had been appointed as an educator, by the Department, and that she was unaware of any formalities or protocols that would preclude her appointment, the fact is that there would be conditions that needed to be met before a professional person can take up employment, in a professional post – a verified and appropriate qualification is required, for one.
94. In terms of the facts elicited through evidence at the arbitration hearing, the Applicant’s appointment could not have been made, by Mr Twigg or any other person purportedly representing the Department, because in terms of the legislation that governs such appointments, at least two of the requirements for such an appointment were not met.
95. Whilst the Applicant has argued that she was unaware of aspects that would have effectively rendered any appointment by the Department as being void, this does not detract from the fact that legislation governing such appointments stipulates certain requirements which had to be met before an appointment could be made. The legal provisions were not unreasonable, and the Applicant was in fact aware of them – being that the applicant must meet the requirements of the post; and the applicant must have the relevant qualifications, which had to be verified.
96. Evidence led in the arbitration hearing showed that at least one of these legislative conditions had not been met, and no evidence was led to show if or when that requirement was met, other than in the form of hearsay regarding what the Applicant testified the Principal had said to her (that the issue regarding the subjects and her post had been resolved). Whilst the Respondent’s representative submitted information around this in the closing argument, this is not accepted as evidence as it was not led as evidence in the arbitration.
97. Similarly, the following statements included in the Respondent’s closing arguments were not canvassed as evidence during the arbitration hearing and were not ‘common cause’. They have been disregarded and were not taken into account when determining this matter:
“It is common cause that the delegated authority to appoint post level 1 educators at schools reside with the District Director of the Nelson Mandela Bay Education District, Mr. E. Gorgonzola.
On 17 January 2020 the principal and the School Governing Body of Ashton Gontshi Primary School, profiled the vacancy as Technical Studies and Creative Arts, Grade 7.
The Curriculum Vitae of Ms. Matera was later submitted.
On 24 February 2020, the school was informed that the applicant does not fit the profile of the post and therefore the appointment cannot be affected.
Incidentally, the re-profiling of the post in which Ms. Matera claims to be “appointed” was only received on 05 August 2020.”
98. It is regrettable that Ms Matera, who is clearly a competent, professional and impressive individual, has experienced a situation, in her first formal employment, whereby she was requested to carry out work under the impression that she was contracted to the Department of Education and would be remunerated by them, when this was incorrect.
99. It is beyond the ambit of this process to indicate whether there would be any other Forum under which to pursue a claim for the work that she carried out for the school. Perhaps the Principal and the School Governing Body will engage her in this regard, given that it is common cause that she did carry out duties as a teacher for the school for a period of time, incurring personal costs for travel in so doing.
100. Based on the above, my finding is that the Applicant was not employed as an educator by the Respondent, and the Council does not have jurisdiction in relation to the Applicant.
101. There is no basis upon which to award costs.
In the premises, I make the following order:
102. The Council does not have jurisdiction in this matter.
103. No order is made as to costs.
SIGNED AT MAKHANDA ON THIS 21st DAY OF OCTOBER 2020.