Case No: PSES561-19/20NW
In the matter between
Obakeng Isaac Seeco Applicant
Department of Education – North West Respondent
ARBITRATOR: Kenneth Dlamini
HEARD: 24 June 2021
DATE OF AWARD: 19 July 2021
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on 24 June 2021 at the Department of Education - Ngaka Modiri Molema District Offices in Mahikeng, North West Province.
2. The Applicant, Mr Obakeng Isaac Seeco was present and represented by Mr Jan Buscopb, a practising attorney from the law firm CJP Oelofse Attorneys. Respondent, Department of Education - North West was neither present or represented despite being properly served by the Council including other parties concerned.
3. In the absence of any information before me regarding the non-attendance of the Respondent, I exercised my discretion and proceeded with the arbitration proceedings in default of the Respondent.
THE ISSUE TO BE DECIDED
4. I have to decide whether or not the Applicant had been permanently employed by the Respondent at the time the Respondent terminated the Applicant’s fixed term contract after the Respondent had permanently appointed the Applicant, whether by its conduct the Respondent dismissed the Applicant, and if so whether the dismissal of the Applicant was procedurally and substantively and to determine the appropriate relief and provide brief reasons for my decision. The relief sought by the Applicant is retrospective re-instatement in terms of section 193 of the Labour Relations Act 66 of 1995.
THE BACKGROUND TO THE DISPUTE
5. The Applicant resigned in October 2016 as an Educator PL2 having been in the employment of the Respondent for almost twenty years. On 10 April 2018 the Applicant was re-employed by the Respondent as an Educator PL1 at Obakeng Primary School on a fixed term contract up until 31 December 2018. The fixed term contract was subsequently renewed on the same terms and conditions up until 31 December 2019. At time the Applicant was earning a basic monthly salary of R 18, 731.00
6. In a letter from the Respondent dated 17 July 2019, the Applicant’s temporary appointment on a fixed term contract was converted to a permanent appointment in accordance with collective agreement 4 of 2018.
7. In another letter from the Respondent dated 18 July 2019 entitled notice of termination of service contract the Applicant was informed or advised that his contract with the Respondent as temporary Educator was coming to an end on 31 August 2019.
8. Aggrieved by the conduct of the Respondent, the Applicant referred an unfair dismissal dispute to the Council. After conciliation failed. The Applicant referred the dispute for arbitration.
9. Prior to the arbitration proceedings, both parties drafted and signed pre-arbitration minutes which were later submitted to the Council. In terms of the pre-arbitration minutes the parties agreed that what is mentioned above from point 5 -7 above were common cause facts.
10. What is also not disputed by the Respondent according to the signed pre-arbitration minutes is the conversion of the Applicant’s temporary appointment to permanent appointment, which according to the Respondent was an administrative error or mistake.
11. The Applicant party stated that given the pre-arbitration minutes submitted as well as the common cause facts in particular, the Applicant party will not lead any evidence, but will only argue its case by submitting written arguments as well as relevant legal authorities in support of its case, which the Applicant party did submit.
THE APPLICANT’S WRITTEN ARGUMENT
12. The permanent appointment of the Applicant by the Respondent was an administrative act under the Employment of Educator’s Act, 76 of 1998. As such if the Respondent had realised that such an appointment was irregular or a mistake the Respondent was required to approach the Labour Court to have the permanent appointment of the Applicant set aside as an administrative action, which the Respondent failed to do so despite the Respondent having sufficient time to do so.
13. In terms of the majority judgment of the Constitutional Court in the Department of Transport v Tasima 2017 (2) SA 622 (CC) and at paragraph 148 it was stated that an” administrative act remains legally effective, despite the fact that it may be objectively invalid” and at paragraph 150 that “an organ of state, like any other party, must therefore challenge an administrative decision to escape its effects”
14. As things stand the Applicant’s permanent appointment remains in force. The Constitutional Court in the matter of Khumalo and another v MEC for Education: Kwazulu-Natal (2013) ZACC 49 at paragraph 28 found that review under the principle of legality is brought under section 158 (1)(h) of the Labour Relations Act 66 of 1995. Therefore, a Commissioner does not have jurisdiction to set aside an appointment made in the exercise of a public function.
15. The Public Service Commission issued a guide in June 2018 for public departments explaining the process to be followed to correct irregular appointments which at paragraph 6.2 (b) states that the department must make an application to the Labour Court to set aside the appointment as soon as reasonably possible in line with the Constitutional Court case of Khumalo and another v MEC for Education: Kwazulu -Natal (2013) ZACC 49.
16. In light of the legal authorities mentioned above the Applicant’s permanent appointment is binding on the Respondent, even if it is irregular, until set aside by the Labour Court.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
17. Section 192 (1) of the Labour Relations Act 66 of 1995 (the Act) as amended requires the Applicant to establish the existence of the dismissal. If the dismissal is established the burden of proof shifts to the Respondent to prove that the dismissal was for a fair reason and effected in accordance with a fair procedure in compliance with section 188(1) of the LRA.
18. In determining whether the Respondent has complied with the requirements of substantive fairness, I must take into account the Code of Good Practice: Schedule 8 of the LRA read with the CCMA arbitration guidelines. However, in this matter the Respondent will not be able to demonstrate such fairness given that the Respondent was neither present nor represented. I will only consider the unchallenged case of the Applicant to make a determination in this regard.
The existence of dismissal
19. It is the argument of the Applicant that his temporary employment contract had been converted to permanent employment by the Respondent at the time when Respondent informed him about the termination of the temporary Educator service contract. And as such by its conduct the Respondent unfairly dismissed him without a fair or valid reason or due processes being followed. In the absence of any version to the contrary. I have no reason not to accept the Applicant’s uncontested argument and to further rely on it in making a determination.
20. It is trite law that no dismissal will be deemed fair (Procedurally) wherein a fair procedure was not followed as required, as it was the case in this matter according to the Applicant’s version.
21. Substantive fairness refers to a valid and fair reason which the Respondent relied upon when dismissing the Applicant.
22. Without having to repeat the common cause facts in this matter as indicated in paragraphs 5, 6, 7 and 10 above, my view on this matter is that by virtue of the letter of permanent appointment which was given to the Applicant by the Respondent. The Applicant became a permanent employee of the Respondent. The letter of permanent appointment in essence invalidated or nullified the initial temporary service contract or fixed term contract.
23. If for whatever reason the Respondent wanted to remedy what the Respondent called an erroneous appointment, the Respondent should have followed due processes not limited to approaching the Labour Court to have its administrative action set aside, which did not happen in this regard. I therefore concur with the Applicant’s argument in this regard that the Applicant had been permanently appointed at the time of termination of the fixed term contract by the Respondent and that by such conduct the Respondent unfairly dismissed the Applicant.
24. The Applicant stated that he is seeking retrospective re-instatement as relief. I am therefore guided by section 193 of the LRA which requires me to order retrospective re-instatement as a remedy to a finding of an unfair dismissal as it is the case in this matter.
25. Section 194 of the LRA provides that any compensation awarded must be just and equitable in all circumstances and it may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
26. In the premises I make the following award.
27. I find that the Applicant was a permanent employee of the Respondent at the time the Respondent gave the Applicant the notice of termination letter terminating the Applicant’s temporary appointment.
28. I further find that by its conduct the Respondent unfairly dismissed the Applicant and that the dismissal of the Applicant was procedurally and substantively unfair.
29. I order the Respondent, Department of Education -North West to retrospectively reinstate the Applicant, Mr Obakeng Isaac Seeco into the same or similar position and on the same or similar terms and conditions of employment which prevailed prior to the date of his dismissal on 31 August 2019.
30. I further order the Respondent to pay the Applicant an amount of Two Hundred and twenty-four Thousand Seven hundred and Seventy-Two Rand (calculated as follows: R 18, 731. 00. Per month x 12 months = R 224, 772. 00) being back pay including any salary increases where applicable subject to any legal deductions.
31. The Applicant must report for duty on 02 August 2021 and the Respondent is expected and ordered to accept him into service.
32. The Respondent must pay to the Applicant the total amount of back pay mentioned above on or before 02 August 2021.