Case Number: ELRC 72-20/21KZN
Applicant: NAPTOSA obo J STANLEY
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 25 November 2020
Arbitrator: Mr VF Mthethwa
Case No.: ELRC 72-20/21KZN
In the matter between
NAPTOSA obo J STANLEY Applicant
PROVINCIAL DEPARTMENT OF EDUCATION: KZN Respondent
Panellist : Mr VF Mthethwa
Date of award: 25 November 2020
DETAILS OF HEARING AND REPRESENTATION:
1. This is the award in the matter between Janet Stanley, the Applicant and the Department of Education, the Respondent. The hearing was conducted via the Zoom online platform under the auspices of the Education Labour Relations Council (ELRC) on 30 September 2020 and 01 October 2020. The Applicant was present and she was represented by a representative from NAPTOSA, Ms I Danooch. The Respondent was represented by its official, Mr I Naidoo. The proceedings were digitally recorded.
2. Upon commencement of the proceedings the Respondent raised a point-in-limine that the Applicant was never an employee of the Respondent. The Applicant does not meet the requirements of section 200A of the Labour Relations Act 66 of 1995 (the “LRA”) in order to be presumed an employee of the Respondent. She has not been remunerated by the Respondent. The Applicant received an offer of employment but no appointment letter was issued thereafter. An offer is not an appointment. The Respondent also submits that the offer of appointment was made in error and thus the contract of employment was void ab initio. Therefore, as such, the Applicant cannot claim dismissal and seek reinstatement as she was never an employee of the Respondent. The Respondent also submits that the dispute relates to a contractual issue which must be determined by the Labour Court. The Respondent thus submits that the ELRC lacks jurisdiction in the matter.
3. In Bombardier Transportation (Pty) Ltd v Mtiya and Others (JR 644/09)  ZALC 34, at para13, the court held that the only true jurisdictional issues which have to be determined prior to arbitration are: whether the dispute has been referred in time, whether there is a bargaining council with jurisdiction over the parties to the dispute and whether the dispute concerns an employment-related matter at all. The court went on to hold that issues such as whether a person is an employee and whether there was a dismissal are quasi-jurisdictional issues which may be determined during the course of arbitration. I accordingly proceeded with arbitration in order to determine these two quasi-jurisdictional issue during the course of arbitration.
4. Furthermore, in HOSPERSA obo Tshambi v MEC for Health KwaZulu-Natal (2016) 7 BLLR 649 (LAC), at para 30, the court held that the arbitrator has to determine the true nature of the dispute himself. The court, at para 16, referred to the following finding which was made in CUSA v Tao Ying Industries and Others (2008) 29 ILJ 2461 (CC) at para 66:
“The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in.”
On the strength of the above decision I accordingly decided to proceed with the arbitration in order to establish the true nature of the dispute in this matter.
5. Having assumed jurisdiction and heard the evidence I came to the conclusion that the present dispute is not contractual but it relates to a dismissal.
6. I accept the submission of the Respondent that it did not issue a letter of appointment to the Applicant. However, I note that there is a letter on page 1 of Bundle “A”, dated 30 March 2020, which the Respondent sent to the principal to inform her that the Applicant had been appointed. The letter on page 1 of Bundle “A” is titled: “Appointment of Educator: First Time Appointee”. The same letter was issued to Miss Seymour and Mrs van Hemert who, like the Applicant, had previously resigned. They were subsequently appointed. Therefore the Applicant could not realise that this letter contained material errors since it was also issued when other former employees were appointed. According to the letter, the appointment was subject to the Applicant submitting documents in Bundle “B”. The principal submitted the Applicant’s documents at the circuit office, where she is supposed to submit them. It is improbable that the Applicant would not submit the required documents and then still insist on appointment. I therefore find that the Respondent appointed the Applicant on 30 March 2020.
7. The Respondent submits that it made an offer of employment, on page 3 of Bundle “A”, to the Applicant since it did not know that the Applicant had previously resigned. The Respondent therefore submits that the offer of employment was issued in error based on the incorrect information supplied by the principal. The Respondent maintains that an offer of employment is not an appointment letter.
8. The Applicant, however, submits that there can be no mistake as once the PERSAL number is entered on the computer system, the employment history of an educator comes up. The Applicant thus submits that this history will show if the educator was previously employed. I note that the letter to Mr Timothy on page 4 of Bundle “C”, dated 28 February 2020, shows the Applicant’s PERSAL number. Mrs Hadebe herself submits that after receiving the documents, and if everything is in order, she then enters the information on the computer system and issues the offer of appointment. However she submits that, due to the national lockdown at the time, she did not check if everything was in order before issuing the offer of appointment to the Applicant. It is difficult to believe that the Respondent issued the offer of appointment to the Applicant without conducting due diligence. If it did, it committed an unreasonable error since no reasonable person in the position of the Applicant would think that the Respondent made the offer of appointment in error without having verified the information supplied to it.
9. At common law mistake renders the contract void if the mistake concerns material facts and if it is a reasonable mistake. This common law principle has been found to apply in contracts of employment in National Union of Metalworkers of South Africa and Another v Transalloys (Pty) Ltd (JS237/15)  ZALCJHB 364. In the National Union of Metalworkers of South Africa decision above, at para 25, the court held that an employer who concludes a contract of employment in error is bound on the basis of quasi-mutual assent unless there is some special reason for classifying the mistake as a iustus error. The court found that one such reason obviously exists when the employee knew of the mistake and such knowledge enables the employer to rescind the contract if the mistake was material. The court went on to find, at para 26, that a mistake will be treated as a iustus error if the employee ought, as a reasonable person, to have known of it and where the offer made is accepted when the person purporting to accept the offer knows or ought to know that there was no intention to make the offer as it appears from the wording of the contract. The court referred to Sonap Petroleum (SA)(Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A) where it was held that:
‘If he realised (or should have realised as a reasonable man) that there was a real possibility of a mistake in the offer, he would have had the duty to speak and to enquire whether the expressed offer was the intended offer’.
10. On the face of it, the offer of employment which was received by the Applicant shows nothing which could suggest that it was issued in error.
11. In contrast to HRM Circular 5 of 2017, HRM Circular 4 of 2018 excludes the Applicant from educators whose appointment has to be approved only by the HOD. The note (indicated as “NB”) below clause 2 of HRM Circular 4 of 2018, on page 8 of Bundle “A”, does not include the Applicant in the categories of educators whose appointment is subject to be approved only by the HOD. Given the contradiction between the two circulars I find that HRM 4 of 2018 has to apply on this aspect since it is a later circular. Therefore the Applicant could not have realised that the offer of employment was erroneous since nothing in HRM Circular 4 of 2018 excludes her from being offered employment. In addition, the letter on page 4 of Bundle “C” reflects the PERSAL number of the Applicant. A PERSAL check enables the Respondent to obtain an educator’s service history. Therefore the Applicant could not have realised that the Respondent did not know that she had previously resigned. The Applicant could not realise that there was a real possibility of mistake in the offer of employment when she received it. I accordingly find that the mistake that the Respondent made in issuing the offer of employment to the Applicant is not a reasonable one. The Respondent’s mistake is not a iustus error. In the circumstances, the Respondent is bound by the contract which ensued when the Applicant accepted the offer of employment.
12. In Wyeth SA Pty Ltd v Manqele and Others JA 50-03  ZALAC 1 (23 March 2005), at para 51, the court found that a person is an employee despite that she has not received remuneration, if she “is entitled to receive any remuneration”. While Applicant does not receive remuneration from the Respondent, she is entitled to receive remuneration. I accordingly reject the submission of the Respondent that the Applicant cannot be an employee since she does not receive remuneration.
13. The “Presumption as to who is an employee” in section 200A of the Labour Relations Act 66 of 1996 applies to a person who earns below the threshold of R205 433.30 per annum. Remuneration of an educator who has an M+4 qualification is R 278640 per annum. Therefore the presumption does not apply in the present matter since the Applicant has an M+4 qualification and accordingly earns above the threshold.
14. I accordingly reject the submission of the Respondent that the Applicant was not its employee. I rule that the Applicant was an employee of the Respondent with effect from 30 March 2020. When Mrs Hadebe called the principal she put an end to the contract of employment. That call to the principal amounts to a dismissal. Therefore I also rule that the Applicant was dismissed on 30 May 2020 when Mrs Hadebe called the principal to notify her that the Applicant could not be appointed and effectively retracted the offer of employment as well as the letter of appointment.
ISSUE TO BE DECIDED:
15. I am required to determine:
Whether dismissal of the Applicant was unfair; and if so, Decide on an appropriate remedy.
BACKGROUND TO THE DISPUTE:
16. The Applicant has been employed by the School Governing Body (the “SGB”) at Northdene Preparatory School since 1 August 2017. She returned to the teaching profession after resigning in January 2014. After serving more than two years at Northdene Preparatory, the principal recommended that she be appointed into the vacant post that arose at the school. This was after being out of the employment of the Department for over two years. Her name together with those of two other educators were submitted in a recommendation for appointment. The other two educators were appointed as per the recommendation by the school. A telephone call was subsequently made to the Principal Mrs King, by Ms Hadebe from the Department informing her that the Department could not appoint the Applicant since she had been previously appointed. In the referral form the Applicant stated that the dispute arose on 30/05/2020. The Applicant seeks an award confirming her appointment and request her salary to be backdated to her date of appointment on the 30 March 2020. She also seeks recognition of her previous service when the Department places her placing on her notch.
SUMMARY OF THE SUBMISSIONS:
SUBMISSIONS OF THE APPLICANT:
17. The Applicant testified first in support of her case. She briefly submits that she was initially employed by the Respondent as a foundation phase educator for 18 years until she resigned in January 2014. Thereafter she was out of service for two years and six months. She was subsequently employed by the SGB as a foundation phase educator on 01 August 2017. She was so employed for two years and seven months.
18. In February 2020, while still employed by the SGB, she completed and submitted all the documents which are required for appointment of an educator by the Department. She completed pages 1 to 4 in Bundle “B”, which the principal signed and duly submitted to the circuit office of the Department. She met the minimum requirements for appointment. On page 4 she indicated that she had previously resigned from the Department.
19. She did not submit incorrect information to the Department. Therefore the Department was aware of her previous service with it. Yet the Department proceeded to appoint her per appointment letter in page 1 of Bundle “A” which was sent to the principal dated 30/03/2020. She did not assume duties without authorisation. The appointment letter bears her PERSAL number. Once you type the PERSAL number all the employment history comes up in the system. She is not a first time employee as reflected on the appointment letter since she had a break in service. Item 4 of the appointment letter required her to submit the assumption of duty and other appointment documents to the human resource component in order for the Department to process the appointment.
20. She therefore disputes the version that, acting in common purpose with the principal, they deceived the Department by not disclosing that she had previously resigned. The documents include the Z83 form, in page 4 of Bundle “B”, in which she stated that she had previously resigned from the Department. She submitted the documents to the circuit office four times.
21. In the letter on pages 3 and 4 of Bundle “A” the Department offers her employment. While the letter is titled as an offer of employment, no other letter is issued when an educator is appointed. This is the generic letter issued to educators. Educators receive the offer of employment and then commence duties. Two other educators at Northdene Preparatory School received a similar letter and commenced duties. They did not receive any other letters. They are receiving their salaries from the Department.
22. On page 4 of Bundle “A” the letter directs her to report for duty, whereupon the principal must submit the assumption of duty and other documents to the Department. She is aware of HRM Circular 5 of 2017 on page 7 of Bundle “A” which stipulates the priority order which must be followed in the filling of vacant educator post. The circular further stipulate that under no circumstances must educators returning after a break in service be appointed without approval of the HOD.
23. Subsequently the principal informed her that Ms Hadebe called her from the Department informing her that her appointment had been retracted. She was therefore dismissed. She has not received anything in writing regarding the retraction.
24. The SGB pays her salary. To date, she would have been receiving remuneration from the Department for seven months had her services not been terminated. She has been financially prejudiced as a result of the termination. The salary she receives from the SGB is smaller as compared to the remuneration which the Department would be paying her. In addition she does not have benefits such as medical aid, housing subsidy and pension.
25. She has an M+4 qualification. The salary scale applicable to her is R 278640 per annum. She must therefore be remunerated at a salary scale that matches her qualification.
26. The second witness for the Applicant was the school principal of Northdene Preparatory School, Mrs King. Her evidence is briefly that she has been the principal of Northdene Preparatory School since 1998. The Applicant was appointed by the SGB as a Grade R educator in 2017. On 12/08/2019 she informed the Department that there were two vacant educator posts at the school. She then waited for the Department to follow the applicable procedure. In 2020 there were three vacancies and she submitted this information accordingly. She waited for the whole first term but the posts were not filled. In her 22 years of service as principal she has never received educators from the Department. Previously the Department would provide the school with an educator from its pool of surplus educators. Currently the Department asks the school to recommend an educator for appointment. She has recommended educators before and they got appointed. Three classes were without educators. Therefore she used the three available educators. The SGB had to pay the educators while the Department was still following protocol.
27. She was aware that the Applicant had previously resigned from the Department. She submitted all the paperwork to the circuit office four times. She sent the letter on page 4 of Bundle “C” to Mr Timothy informing him of the vacancies at the school. The other two educators were appointed following the same process she followed in respect of the Applicant. The appointment letter on page 1 of Bundle “B” bears the PERSAL number of the Applicant since she was previously employed. In section F of the Z83 form on page 4 of Bundle “B” the Applicant stated that she had been employed by the Department previously. She stated that she had resigned. Nothing was hidden. She submitted the documents in Bundle “B” to Mr Timothy four times. The first time she submitted Bundle “B” was 25 February 2020. She submitted to two assistants, Lebo and Emmam at the circuit office. Her view is that there is subject specialisation at Grade R. For example some teachers cannot teach IsiZulu or Afrikaans. Therefore IsiZulu is taught by an IsiZulu teacher. She did not submit the names of Grade R practitioners since the SGB wanted educators who can also teach grades higher than Grade R. The Applicant’s M+4 qualification is equivalent to a B Ed degree.
28. She disputes the version that she never approached Ms Hadebe and Mr Timothy to let them know she had a problem getting an educator. Whenever they enquired they were always told to wait. In February 2020 the Department put up a notice on social media to show details of excess educators but it crashed the next day. She informed the Department of the vacancies by letter in page 4 of Bundle “C”. Despite informing the Department of the vacancies and waiting the whole term the Department did not fill the vacancies. They waited for the whole term. It is not her responsibility to be asking if someone is to be appointed. That is the function of the HOD. She submitted everything to the circuit office as protocol requires.
29. HRM Circular No. 5 of 2017 does not specify who must apply to the HOD for permission to re-appoint a former employee. On page 8 of Bundle “A” in item 2 (vi), (viii) and (ix), the circular lists categories of educators whose appointment has to be approved by the HOD. The Applicant falls under the category of job applicants specified in item 2(vi) whose appointment does not require approval of the HOD. It is the Department that makes an appointment. She has never seen a document which is submitted to the HOD to request approval to appoint an educator.
30. The Applicant received the appointment letter, dated 30 March 2020, on page 1 of Bundle “A” informing her that she had been appointed. She did not take notice of the fact that it says “first time appointee.” She assumed it was correct. This is the same appointment letter which was received by Miss Seymour and Mrs van Hemert when they were appointed. They did not receive anything further. Miss Seymour and Mrs van Hemert had also been previously appointed when they were re-appointed this year.
31. She received a telephone call from Ms Hadebe informing her that the Department could not appoint the Applicant since she had been previously appointed. She has not received anything in writing regarding what Ms Hadebe informed her about. No other educator’s service has been terminated telephonically. Mr Pillay from the District Office called and threatened her saying that they would be coming for her if the Department loses this case.
SUBMISSIONS OF THE RESPONDENT:
32. The first witness for the Respondent was the Circuit Manager, Mr Colvert Timothy. His evidence is briefly that he is the supervisor Mrs King. The Applicant had resigned. Therefore she could not be appointed. It was not brought to his attention that the Applicant had previously resigned. He did not receive the Z83 form of the Applicant. He only received the Applicant’s documents after the offer of employment had been issued.
33. The appointment of an educator begins with the school submitting a recommendation together with supporting documents to the Circuit Office, as shown in page 1 of Bundle “C”. The recommendation is then forwarded to human resources where an offer of employment is generated. Therefore the person who starts the process is the principal. The principal requests permission for appointment of an educator who previously resigned. The principal has to submit a motivation letter that the school has a vacancy for a scarce subject and they cannot find an educator. This was not done in the case of the Applicant. The principal did not ask for help from the Department. She merely submitted documents. The HOD’s permission is required in the appointment of an educator who has previously resigned.
34. Upon receipt of the principal’s recommendation he ensures that there is no available educator in terms of the priority list. Thereafter he forwards the recommendation to human resources. An application has to be made to the HOD for permission to appoint an educator who has previously resigned, if she is a scarce skills educator. His role is to support, sign, and forward documents to human resources. The principal’s recommendation in Bundle “C” does not disclose that the Applicant previously resigned. Human resources brought to his attention that the Applicant had previously resigned.
35. In all circuit meetings he discusses the priority list for appointment of educators with principals. All the principals have received HRM Circulars 5 of 2017 and 4 of 2018. Circular 4 of 2018 does not replace Circular 5 of 2017 since it reads “In keeping with Circular 5 of 2017….” HRM Circular 4 of 2018 is to be read in conjunction with HRM Circular 5 of 2017.
36. The offer of employment is not an appointment letter. Subsequent to the offer of employment a checklist is done. The offer of employment may be withdrawn if the submitted documents do not accord with the checklist. If everything is in order an assumption of duty document is submitted. In this case there is no letter of appointment.
37. In his one-and-a-half years as Circuit Manager he has never given five names to Northdene Preparatory School for them to select an educator. He normally goes with the principal’s recommendation.
38. The second witness for the Applicant was the Deputy Director of Human Resources, Mrs Gugu Hadebe. Her evidence is briefly that her duties involve the appointment of educators and non-educators, leave administration and housing matters among others. The document on page 3 of Bundle “A” is an offer of employment, not an appointment letter. An appointment letter is issued after the educator has submitted the required documents and it indicates the date of employment, salary scale etc. She is unable to confirm that Miss Seymour and Mrs van Hemert received their appointment letters. An offer of appointment is sent to the school to deliver to the educator. Then the educator submits the documents which are required to effect the appointment. If all the submitted information is in order it is then captured on the system and thereafter an appointment letter is issued. An educator assumes duty after receiving the appointment letter.
39. The principal does not have the power to appoint since that power resides with the HOD. In terms of the priority list an educator who previously resigned may only be appointed if an educator in the prioritised categories could not be found. HRM Circular 4 of 2018, on page 7 of Bundle “A”, is an addition to HRM Circular 5 of 2017 which still stands. The principal has to submit a motivation and state that the school has difficulty in finding an educator. The offer of employment was generated after she received the recommendation of the principal in Bundle “C”. The documents in Bundle “C” did not show that the Applicant previously resigned from the Department. Human resources would not have generated the offer of employment had they known that the Applicant had previously resigned. They would have asked the school to submit a motivation. The principal did not indicate to the Department that the Applicant had previously resigned. She received the documents in Bundle “C” but there was no Z83. She received the documents from the circuit office. They do not make use of a checklist when receiving documents. The principal submits to the circuit office and the circuit office forwards to the district office. She agrees that Bundle “B” shows that the Applicant has a PERSAL number and therefore that she was previously employed. She agrees that PERSAL shows the entire employment history with the state. In order to generate an offer of employment human resources requires the school to submit a covering letter with information about the educator who is already in the school, if there is one at the school.
40. She cannot comment on how Miss Seymour and Mrs van Hemert were appointed as there are other qualified Grade R educators in the school. Another office, ECD, deals with the appointment of Grade R educators.
41. She checks the documents received from the school to see if there are no issues preventing appointment of an educator. She also checks on PERSAL. Under normal circumstances the Department checks if all categories in terms of HRM Circular 5 of 2017 have been exhausted before issuing an offer of employment. However, in the case of the Applicant she did the checks after the offer of employment had been issued, due to what was happening at the time in respect of COVID-19. She signed the offer of employment in May 2020 and only did the checks afterwards.
42. The purpose of her call to the school was to inform them they had provided incomplete information in their request for appointment of the Applicant. The school has to generate a request for appointment of an educator. The school has to indicate why they recommend an educator who has previously resigned. The school must confirm that there are no qualified educators in the prioritised categories. If the HOD approves, an appointment letter is issued. There was no correspondence from the principal expressing that the school had a difficulty in finding an educator.
ANALYSIS OF THE SUBMISSIONS:
43. Section 192(2) of the LRA enjoins the employer to prove that the dismissal was fair.
44. None of the Respondent’s evidence show that the dismissal was fair. I accordingly find that the Respondent has not proved that the dismissal of the Applicant was fair. It has therefore failed to discharge the onus placed on it by section 192(2) of the LRA. In the circumstances I find that the respondent unfairly dismissed the applicant on 30 May 2020.
45. I am unable to grant the relief of recognizing the Applicant’s previous service with the Respondent. Recognition of previous service is a separate matter involving the interpretation and application of the applicable collective agreement, if any.
46. Given the fact that reinstatement is the preferred remedy for unfair dismissal matters, I find that reinstatement would be just and equitable in the circumstances. I find that the reinstatement is to be with effect from 30 May 2020. The Applicant is accordingly entitled to back-pay in the amount of R139 320.00 (One Hundred and Thirty Nine Thousand Three Hundred and Twenty Rand), calculated at her monthly rate of pay of R23 220.00 for 6 months i.e. the period June 2020 to end November 2020. The Applicant is also entitled to unpaid remuneration in the amount of R46 440.00 (Forty Six Thousand Four Hundred and Forty Rand) calculated at her monthly rate of pay of R23 220.00 for 2 months i.e. the period 30 March 2020 to 30 May 2020. The total of these amounts is R185 760.00 (One Hundred and Eighty-Five Thousand Seven Hundred and Sixty Rand).
47. The Applicant, JANET STANLEY, is found to have been unfairly dismissed by the Respondent, the PROVINCIAL DEPARTMENT OF EDUCATION: KZN.
48. The Respondent is ordered to re-instate the Applicant in its employ on terms and conditions commensurate with those of an educator with an M+4 qualification, within fourteen days of the council issuing this award to the parties. The re-instatement is to operate retrospectively to 30 May 2020. The Applicant must report for duty at her usual place of work, at the usual starting time on 14 December 2020.
49. The Respondent is ordered to pay the Applicant R185 760.00 (One Hundred and Eighty Five Thousand Seven Hundred and Sixty Rand), the total of the amounts set out in paragraph 46 above, minus such deductions as the employer is in terms of the law entitled or obliged to make, within sixty days of the Education Labour Relations Council delivering this award to the parties.
50. No cost order is made.