ELRC741-20/21NW
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Award Date:
15 August 2021
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Commissioner: D Smith
Case No.: ELRC741-20/21NW Date of Award: 15 August 2021
In the ARBITRATION between:
MMAPASEKA JESSICA TSATSINYANE (Applicant)
And
DEPARTMENT OF EDUCATION NORTH WEST (Respondent)
Applicant’s representative:
Tel:
Telefax:
Email: tsatsinyanemmapaseka@gmail.com
Respondent’s representative: Ms. Boity Phuswane
Tel:
Email: Boity Phuswane
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”).
2. The Applicant, Ms. Mmapaseka Jessica Tsatsinyane (“Tsatsinyane”) was represented by Mr. Stephan Phaladi, an official of the trade union NAPTOSA. The Respondent was represented Ms. Boity Phuswane (“Phuswane”), it’s SES: Disputes.
3. The process was digitally recorded, and I took handwritten notes.
4. Tsatsinyane submitted a bundle of documents marked A.
5. The parties agreed to submit written closing argument as follows:
14 July 2020 Applicant
19 July 2021 Respondent
Phuswane was not copied on Tsatsinyane’s submission and the Respondent’s submission date was extended to 23 July 2021 with Tsatsinyane’s reply to be submitted by 27 July 2021.
ISSUE TO BE DECIDED:
6. Whether Tsatsinyane was unfairly dismissed or not, in terms of section 191(5)(a) of the LRA, and if so, determine the appropriate remedy.
BACKGROUND:
7. Tsatsinyane entered an employment relationship with the Respondent on 1 March 2015. She completed five 12-month limited duration contracts (“LDC”) as a temporary educator at Methusele Primary School. She alleged she was dismissed on 28 January 2021. She earned R18731.00 per month.
REMEDY
8. Tsatsinyane sought retrospective reinstatement and backpay to 28 January 2021, in line with section 4 of the ELRC Collective Agreement No.4 of 2018 (“Collective Agreement”).
SURVEY OF EVIDENCE AND ARGUMENT:
9. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
10. Most of the evidence was common cause.
APPLICANT’S VERSION
11. Tsatsinyane submitted that:
11.1. On the 11 December 2020 she received a copy of DEPARTMENTAL CIRCULAR NO 70 OF 2020, AA (“Circular 70”).
11.2. On 28 January 2021 she received a telephone call from the school’s Acting Principal, Mr Mokgaotsi. He advised her she was dismissed with immediate effect.
11.3. The dismissal contravened point number 5 of Circular 70.
11.4. She was paid until 26 February 2021.
11.5. She referred the dispute of unfair dismissal to the Council for conciliation on 28 February 2021 and unfair implementation of the Collective Agreement on 30 April 2021, respectively.
11.6. The Respondent did not attend the conciliation for case ELRC741-20/21NW.
11.7. She was a Temporary Educator and was in the employment of North West Department of Education when the Collective Agreement was signed into existence on 25 September 2018.
11.8. The early termination of the contract of the Applicant took away the right to the benefit of conversion from temporary to permanent employment.
11.9. On 11 December 2020 she was given Circular 70 by the Acting Principal. She understood the contents of circular to extend the term of her fixed term contract until the conversion of temporary educators who qualify in terms of the Collective Agreement was done.
11.10. In line with point number 3 of Circular 70 she had reasonable expectation of conversion into a permanent appointment.
11.11. To date, and to the best of her knowledge, the promises in line with point number 3 of the Circular regarding the conversion of temporary teachers to permanent has not happened nor was it communicated to her before the dismissal.
11.12. Section 4 of the Collective Agreement sets out the procedure for converting temporary teacher into permanent and she was eligible for conversion.
11.13. She met the qualification.
12. In reply Tsatsinyane submitted:
12.1. She was a “Temporary Educator” employed by the Respondent in the year 2020.
12.2. The Collective Agreement provides the criteria for conversion:
13.2.1 Criteria No. 1: “the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion”. She had been employed in a temporary capacity since 2015.
12.2.1. Criteria No. 2: “the temporary educator qualifies for the post in question”. She was a temporary educator appointed on a fixed-term contract to a funded, substantive and vacant Level 1 post and not a temporary educator who substituted a permanent educator who are, for whatever reason, absent from his or her post.
12.2.2. Criteria No. 3: “the temporary educator is registered with South African Council of Educators (SACE); and”. She is registered with SACE, registration number C12260650, expiring on 07 February 2022.
12.2.3. Criteria No. 4: “the temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of 1994), as amended. “ She is a young, black South African woman.
12.3. Section (4.2) of the Collective Agreement states; “The parties request the Minister of Education to amend Chapter B of the PAM by including the provisions of this agreement into the PAM”. The Respondent conflates the conversion with normal recruitment and selection process and as such the Collective Agreement says it may be refused. The agreement makes it clear in ANNEXURE A, Section 4.3.3(4.3.3.2), that the Respondent may not deviate from its terms.
RESPONDENT’S VERSION
13. Phuswane submitted that:
13.1. Tsatsinyane stated that when the Collective Agreement was signed into existence, she was in the employ of the respondent and that her alleged early termination of her contract deprived her of the right to benefit from the agreement.
13.2. Paragraph 5 of Circular 70 provides as follows”:
“This Departmental Circular serves to withdraw termination letters issued to temporary teaches who qualify to be made permanent in terms of the ELRC collective Agreement No. 4 of 2018 irrespective of the PPM 2021 available posts.”
13.3. Only the termination letters of those temporary educators who qualified for conversion were to be withdrawn. The question then becomes; “Did Tsatsinyane qualify for conversion in terms of the Collective Agreement”
13.4. Paragraph 4.7 of the Collective Agreement provides that any person interpreting or applying this agreement must interpret its provisions to give effect to the objects applicable to the provisions of the Employment of Educators Act and PAM. PAM provides, inter alia, for the minimum requirements of appointment in terms of education and experience. The Longman dictionary of Contemporary English states that “If you are required to do or have something, a law or rule says you must do it or have it” A requirement in this context is that which an applicant for a job must have in order to be considered for the appointment into that post.
13.5. Paragraph 3.2.1.1 of PAM, the educational requirements for appointment as an educator is a recognized three- or four-year qualification which includes a professional teacher education. It further provides as a statutory requirement, a SACE certificate. An educator must possess these to qualify for appointment into a post.
13.6. Tsatsinyane stated that she qualifies for conversion in terms of the Collective Agreement. Paragraph 4, Annexure A of the Collective Agreement provides for the conversion of temporary educators to permanent educators. Paragraph 4.3 provides for the requirements for such a conversion. Nowhere in these requirements, is it stated that temporary educators who do not have the minimum requirements for appointment into an educator post may be considered for appointment. Paragraph 4.2.1.2 of the Collective Agreement states that: “A temporary educator may be appointed permanently to a funded, substantive vacant post at a public school which is in an approved educator establishment if the temporary educator qualifies for the post”. Tsatsinyane has a Bachelor of Science in Biology and Chemistry. This qualification does not include a teaching qualification. She has always been well aware that she needed to have a Post Graduate Certificate in Education (“PGCE”). This is a professional teaching qualification aimed at graduates interested in teaching as a career. Tsatsinyane does not hold a PGCE and is not, therefore, qualified to teach as required by PAM.
13.7. PAM further requires that for a person to be appointed as an educator in a public school they must hold a SACE certificate. Tsatsinyane’s SACE provisional registration was valid from 13 February 2014 until 01 February 2020. For Tsatsinyane to have it extended, updated or renewed, she would be required to submit a letter of employment and a PGCE. As stated above, Tsatsinyane does not hold a PGCE, and the SACE could not have been extended. Consequently, Tsatsinyane did not meet the educational nor statutory requirements to be appointed as an educator.
13.8. Tsatsinyane did not qualify for conversion to a permanent educator as she does not have the basic requirements. Therefore Circular 70 did not cover her in any way as it indicated the withdrawal of termination letters must be of only those temporary educators who qualified for conversion in terms of the Collective Agreement.
13.9. Tsatsinyane was not terminated but her contract came to an end on 31 December 2020. Schools reopened on 15 February 2020. At that time, her SACE provisional registration had already expired.
13.10. Tsatsinyane submitted that she received a telephonic call of immediate dismissal from her deputy principal. The deputy principal called Tsatsinyane to inform her that her contract would not be renewed for 2021 as her SACE registration was due to expire on the 01st of February 2021.
ANALYSIS OF EVIDENCE AND ARGUMENT:
14. It is common cause that Tsatsinyane was employed as a temporary educator on an LDC with an end date of the current LDC being 31 December 2020. Temporary educators were served with termination letters advising them that their contracts would end at end of 2020. Tsatsinyane was included in this.
15. Tsatsinyane’s dispute is, in summary:
15.1. The conversion provisions of the Collective Agreement applied to her;
15.2. Circular 70 had the effect of withdrawing the termination letters and extending her LDC beyond 31 December 2020;
15.3. The deputy principal dismissed her summarily by telephone on 28 January 2021.
16. It is common cause that Collective Agreement was concluded on 25 September 2018. At 4.2.1.2 it states:
“A temporary educator may be appointed permanently to a funded, substantive post at a public school which is in an approved educator establishment if the temporary educator qualifies for the post”.
17. That Tsatsinyane,s post was substantive and funded was not disputed.
18. At 4.6.3 the Collective Agreement states:
“Temporary educators whose contracts have not expired as the date of implementation of this agreement shall be considered for conversion to permanent educators in terms of this agreement”.
19. Tsatsinyane was employed on an LDC on 25 September 2018.
20. Obviously if Tsatsinyane qualified to become permanent in terms the Collective Agreement, the notice of the termination of her LDC on 31 December 2020 would have been withdrawn in terms of point 5 below.
21. The Department issued Circular 70 of 10 December 2020 which states:
“ 1. It has come to the attention of Management that there are termination letters issued to temporary teachers.
2. The Department is in the process of implementing the ELRC Collective Agreement No 4 of 2018.
3. Upon the verification and completion of the process the Department will release a circular regarding the conversion of temporary teachers to permanent who qualify in terms of the ELRC Collective Agreement No 4 of 2018.
4. The Department has advertised promotional posts, which will only be filled in March 2021.
5. This Departmental Circular serves to withdraw termination letters issued to temporary teachers who qualify to be made permanent in terms of the ELRC Collective Agreement No 4 of 2018 irrespective of the PPM 2021 availability of posts.
6. The contracts of temporary teachers appointed against promotional posts must be extended until the 31 March 2021.
7. The contents of this Departmental Circular must be brought to the attention of concerned.”
22. The only question that remains is whether Tsatsinyane was qualified or not. On 7 February 2020 Tsatsinyane’s SACE was provisionally renewed until 2022, conditional on her obtaining a PGCE within the two years. The Respondent’s argument in respect of the SACE requirement must fail as it is based on incorrect information, that Tsatsinyane’s did not have a SACE. The question is whether this extension means Tsatsinyane was qualified for conversion. If yes, her LDC was extended by action of Circular 70 and the ‘dismissal’ of 28 January 2021 would be procedurally and substantively unfair. If no, there could have been no employment relationship on 28 January 2021 and, consequently, there could have been no dismissal.
FINDING
23. Tsatsinyane was in possession of a valid SACE, albeit conditional, at the time Circular 70 was issued. This meant that she was qualified for conversion in terms of the Collective Agreement. Point 5 of the circular withdrew the termination letters of temporary educators and extended the LDC beyond 31 December 2020. Consequently, Tsatsinyane was an employee on 28 January 2021. This is further reinforced by the fact that she was paid until the end of February 2021. If the contract ended by effluxion of time on 31 December 2020, as argued by the Respondent, there could be no reason for this.
24. Tsatsinyane has proved that she was dismissed on 28 January 2021. There was no fair reason for the dismissal and no procedure was followed. She is entitled to the relief she seeks.
25. Obviously if Tsatsinyane fails to obtain a PGCE within the required period her employment would become a nullity at that point.
REMEDY
26. Section 193 of the LRA requires that where an arbitrator finds that a dismissal is unfair, the arbitrator may –
(a) Order the employer to reinstate the employee from any date not earlier than the date of the dismissal.
(b) Order the employer to re-employ the employee, either in the work which the employee was employed in before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of the dismissal; or
(c) Order the employer to pay compensation to the employee.
27. Reinstatement is the primary remedy envisaged by section 193 (2) of the LRA and an arbitrator must require the employer to reinstate or re-employ the employee, unless –
(a) The employee does not wish to be reinstated or re-employed.
(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.
(c) It is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) The dismissal is only unfair because the employer did not follow a fair procedure
28. Tsatsinyane sought retrospective re-instatement. I can see no reason why reinstatement should not be appropriate. She was dismissed on 28 January 2021 but was paid until the end of February 2021. She is entitled to backpay for the period between her last payment and her reinstatement. This amounts to R103020.50 (R18731.00 x 51/2 months).
AWARD
29. The Applicant, Mmapaseka Jessica Tsatsinyane, was unfairly dismissed.
30. The Respondent, Education Department of North West, is ordered to reinstate the Applicant with effect from 15 August 2021. The Applicant is ordered to report to her previous place of work at the customary time.
31. The Respondent is further ordered to pay the Applicant back pay in the amount of R103020.50 (one hundred and three thousand and twenty Rand and fifty cents) by 31 August 2021.
32. Interest accrues on the amount at the prescribed rate.
D H Smith
ELRC PANELIST
15 August 2021
Case No.: ELRC741-20/21NW Date of Award: 15 August 2021
In the ARBITRATION between:
MMAPASEKA JESSICA TSATSINYANE (Applicant)
And
DEPARTMENT OF EDUCATION NORTH WEST (Respondent)
Applicant’s representative:
Tel:
Telefax:
Email: tsatsinyanemmapaseka@gmail.com
Respondent’s representative: Ms. Boity Phuswane
Tel:
Email: Boity Phuswane
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”).
2. The Applicant, Ms. Mmapaseka Jessica Tsatsinyane (“Tsatsinyane”) was represented by Mr. Stephan Phaladi, an official of the trade union NAPTOSA. The Respondent was represented Ms. Boity Phuswane (“Phuswane”), it’s SES: Disputes.
3. The process was digitally recorded, and I took handwritten notes.
4. Tsatsinyane submitted a bundle of documents marked A.
5. The parties agreed to submit written closing argument as follows:
14 July 2020 Applicant
19 July 2021 Respondent
Phuswane was not copied on Tsatsinyane’s submission and the Respondent’s submission date was extended to 23 July 2021 with Tsatsinyane’s reply to be submitted by 27 July 2021.
ISSUE TO BE DECIDED:
6. Whether Tsatsinyane was unfairly dismissed or not, in terms of section 191(5)(a) of the LRA, and if so, determine the appropriate remedy.
BACKGROUND:
7. Tsatsinyane entered an employment relationship with the Respondent on 1 March 2015. She completed five 12-month limited duration contracts (“LDC”) as a temporary educator at Methusele Primary School. She alleged she was dismissed on 28 January 2021. She earned R18731.00 per month.
REMEDY
8. Tsatsinyane sought retrospective reinstatement and backpay to 28 January 2021, in line with section 4 of the ELRC Collective Agreement No.4 of 2018 (“Collective Agreement”).
SURVEY OF EVIDENCE AND ARGUMENT:
9. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
10. Most of the evidence was common cause.
APPLICANT’S VERSION
11. Tsatsinyane submitted that:
11.1. On the 11 December 2020 she received a copy of DEPARTMENTAL CIRCULAR NO 70 OF 2020, AA (“Circular 70”).
11.2. On 28 January 2021 she received a telephone call from the school’s Acting Principal, Mr Mokgaotsi. He advised her she was dismissed with immediate effect.
11.3. The dismissal contravened point number 5 of Circular 70.
11.4. She was paid until 26 February 2021.
11.5. She referred the dispute of unfair dismissal to the Council for conciliation on 28 February 2021 and unfair implementation of the Collective Agreement on 30 April 2021, respectively.
11.6. The Respondent did not attend the conciliation for case ELRC741-20/21NW.
11.7. She was a Temporary Educator and was in the employment of North West Department of Education when the Collective Agreement was signed into existence on 25 September 2018.
11.8. The early termination of the contract of the Applicant took away the right to the benefit of conversion from temporary to permanent employment.
11.9. On 11 December 2020 she was given Circular 70 by the Acting Principal. She understood the contents of circular to extend the term of her fixed term contract until the conversion of temporary educators who qualify in terms of the Collective Agreement was done.
11.10. In line with point number 3 of Circular 70 she had reasonable expectation of conversion into a permanent appointment.
11.11. To date, and to the best of her knowledge, the promises in line with point number 3 of the Circular regarding the conversion of temporary teachers to permanent has not happened nor was it communicated to her before the dismissal.
11.12. Section 4 of the Collective Agreement sets out the procedure for converting temporary teacher into permanent and she was eligible for conversion.
11.13. She met the qualification.
12. In reply Tsatsinyane submitted:
12.1. She was a “Temporary Educator” employed by the Respondent in the year 2020.
12.2. The Collective Agreement provides the criteria for conversion:
13.2.1 Criteria No. 1: “the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion”. She had been employed in a temporary capacity since 2015.
12.2.1. Criteria No. 2: “the temporary educator qualifies for the post in question”. She was a temporary educator appointed on a fixed-term contract to a funded, substantive and vacant Level 1 post and not a temporary educator who substituted a permanent educator who are, for whatever reason, absent from his or her post.
12.2.2. Criteria No. 3: “the temporary educator is registered with South African Council of Educators (SACE); and”. She is registered with SACE, registration number C12260650, expiring on 07 February 2022.
12.2.3. Criteria No. 4: “the temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of 1994), as amended. “ She is a young, black South African woman.
12.3. Section (4.2) of the Collective Agreement states; “The parties request the Minister of Education to amend Chapter B of the PAM by including the provisions of this agreement into the PAM”. The Respondent conflates the conversion with normal recruitment and selection process and as such the Collective Agreement says it may be refused. The agreement makes it clear in ANNEXURE A, Section 4.3.3(4.3.3.2), that the Respondent may not deviate from its terms.
RESPONDENT’S VERSION
13. Phuswane submitted that:
13.1. Tsatsinyane stated that when the Collective Agreement was signed into existence, she was in the employ of the respondent and that her alleged early termination of her contract deprived her of the right to benefit from the agreement.
13.2. Paragraph 5 of Circular 70 provides as follows”:
“This Departmental Circular serves to withdraw termination letters issued to temporary teaches who qualify to be made permanent in terms of the ELRC collective Agreement No. 4 of 2018 irrespective of the PPM 2021 available posts.”
13.3. Only the termination letters of those temporary educators who qualified for conversion were to be withdrawn. The question then becomes; “Did Tsatsinyane qualify for conversion in terms of the Collective Agreement”
13.4. Paragraph 4.7 of the Collective Agreement provides that any person interpreting or applying this agreement must interpret its provisions to give effect to the objects applicable to the provisions of the Employment of Educators Act and PAM. PAM provides, inter alia, for the minimum requirements of appointment in terms of education and experience. The Longman dictionary of Contemporary English states that “If you are required to do or have something, a law or rule says you must do it or have it” A requirement in this context is that which an applicant for a job must have in order to be considered for the appointment into that post.
13.5. Paragraph 3.2.1.1 of PAM, the educational requirements for appointment as an educator is a recognized three- or four-year qualification which includes a professional teacher education. It further provides as a statutory requirement, a SACE certificate. An educator must possess these to qualify for appointment into a post.
13.6. Tsatsinyane stated that she qualifies for conversion in terms of the Collective Agreement. Paragraph 4, Annexure A of the Collective Agreement provides for the conversion of temporary educators to permanent educators. Paragraph 4.3 provides for the requirements for such a conversion. Nowhere in these requirements, is it stated that temporary educators who do not have the minimum requirements for appointment into an educator post may be considered for appointment. Paragraph 4.2.1.2 of the Collective Agreement states that: “A temporary educator may be appointed permanently to a funded, substantive vacant post at a public school which is in an approved educator establishment if the temporary educator qualifies for the post”. Tsatsinyane has a Bachelor of Science in Biology and Chemistry. This qualification does not include a teaching qualification. She has always been well aware that she needed to have a Post Graduate Certificate in Education (“PGCE”). This is a professional teaching qualification aimed at graduates interested in teaching as a career. Tsatsinyane does not hold a PGCE and is not, therefore, qualified to teach as required by PAM.
13.7. PAM further requires that for a person to be appointed as an educator in a public school they must hold a SACE certificate. Tsatsinyane’s SACE provisional registration was valid from 13 February 2014 until 01 February 2020. For Tsatsinyane to have it extended, updated or renewed, she would be required to submit a letter of employment and a PGCE. As stated above, Tsatsinyane does not hold a PGCE, and the SACE could not have been extended. Consequently, Tsatsinyane did not meet the educational nor statutory requirements to be appointed as an educator.
13.8. Tsatsinyane did not qualify for conversion to a permanent educator as she does not have the basic requirements. Therefore Circular 70 did not cover her in any way as it indicated the withdrawal of termination letters must be of only those temporary educators who qualified for conversion in terms of the Collective Agreement.
13.9. Tsatsinyane was not terminated but her contract came to an end on 31 December 2020. Schools reopened on 15 February 2020. At that time, her SACE provisional registration had already expired.
13.10. Tsatsinyane submitted that she received a telephonic call of immediate dismissal from her deputy principal. The deputy principal called Tsatsinyane to inform her that her contract would not be renewed for 2021 as her SACE registration was due to expire on the 01st of February 2021.
ANALYSIS OF EVIDENCE AND ARGUMENT:
14. It is common cause that Tsatsinyane was employed as a temporary educator on an LDC with an end date of the current LDC being 31 December 2020. Temporary educators were served with termination letters advising them that their contracts would end at end of 2020. Tsatsinyane was included in this.
15. Tsatsinyane’s dispute is, in summary:
15.1. The conversion provisions of the Collective Agreement applied to her;
15.2. Circular 70 had the effect of withdrawing the termination letters and extending her LDC beyond 31 December 2020;
15.3. The deputy principal dismissed her summarily by telephone on 28 January 2021.
16. It is common cause that Collective Agreement was concluded on 25 September 2018. At 4.2.1.2 it states:
“A temporary educator may be appointed permanently to a funded, substantive post at a public school which is in an approved educator establishment if the temporary educator qualifies for the post”.
17. That Tsatsinyane,s post was substantive and funded was not disputed.
18. At 4.6.3 the Collective Agreement states:
“Temporary educators whose contracts have not expired as the date of implementation of this agreement shall be considered for conversion to permanent educators in terms of this agreement”.
19. Tsatsinyane was employed on an LDC on 25 September 2018.
20. Obviously if Tsatsinyane qualified to become permanent in terms the Collective Agreement, the notice of the termination of her LDC on 31 December 2020 would have been withdrawn in terms of point 5 below.
21. The Department issued Circular 70 of 10 December 2020 which states:
“ 1. It has come to the attention of Management that there are termination letters issued to temporary teachers.
2. The Department is in the process of implementing the ELRC Collective Agreement No 4 of 2018.
3. Upon the verification and completion of the process the Department will release a circular regarding the conversion of temporary teachers to permanent who qualify in terms of the ELRC Collective Agreement No 4 of 2018.
4. The Department has advertised promotional posts, which will only be filled in March 2021.
5. This Departmental Circular serves to withdraw termination letters issued to temporary teachers who qualify to be made permanent in terms of the ELRC Collective Agreement No 4 of 2018 irrespective of the PPM 2021 availability of posts.
6. The contracts of temporary teachers appointed against promotional posts must be extended until the 31 March 2021.
7. The contents of this Departmental Circular must be brought to the attention of concerned.”
22. The only question that remains is whether Tsatsinyane was qualified or not. On 7 February 2020 Tsatsinyane’s SACE was provisionally renewed until 2022, conditional on her obtaining a PGCE within the two years. The Respondent’s argument in respect of the SACE requirement must fail as it is based on incorrect information, that Tsatsinyane’s did not have a SACE. The question is whether this extension means Tsatsinyane was qualified for conversion. If yes, her LDC was extended by action of Circular 70 and the ‘dismissal’ of 28 January 2021 would be procedurally and substantively unfair. If no, there could have been no employment relationship on 28 January 2021 and, consequently, there could have been no dismissal.
FINDING
23. Tsatsinyane was in possession of a valid SACE, albeit conditional, at the time Circular 70 was issued. This meant that she was qualified for conversion in terms of the Collective Agreement. Point 5 of the circular withdrew the termination letters of temporary educators and extended the LDC beyond 31 December 2020. Consequently, Tsatsinyane was an employee on 28 January 2021. This is further reinforced by the fact that she was paid until the end of February 2021. If the contract ended by effluxion of time on 31 December 2020, as argued by the Respondent, there could be no reason for this.
24. Tsatsinyane has proved that she was dismissed on 28 January 2021. There was no fair reason for the dismissal and no procedure was followed. She is entitled to the relief she seeks.
25. Obviously if Tsatsinyane fails to obtain a PGCE within the required period her employment would become a nullity at that point.
REMEDY
26. Section 193 of the LRA requires that where an arbitrator finds that a dismissal is unfair, the arbitrator may –
(a) Order the employer to reinstate the employee from any date not earlier than the date of the dismissal.
(b) Order the employer to re-employ the employee, either in the work which the employee was employed in before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of the dismissal; or
(c) Order the employer to pay compensation to the employee.
27. Reinstatement is the primary remedy envisaged by section 193 (2) of the LRA and an arbitrator must require the employer to reinstate or re-employ the employee, unless –
(a) The employee does not wish to be reinstated or re-employed.
(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.
(c) It is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) The dismissal is only unfair because the employer did not follow a fair procedure
28. Tsatsinyane sought retrospective re-instatement. I can see no reason why reinstatement should not be appropriate. She was dismissed on 28 January 2021 but was paid until the end of February 2021. She is entitled to backpay for the period between her last payment and her reinstatement. This amounts to R103020.50 (R18731.00 x 51/2 months).
AWARD
29. The Applicant, Mmapaseka Jessica Tsatsinyane, was unfairly dismissed.
30. The Respondent, Education Department of North West, is ordered to reinstate the Applicant with effect from 15 August 2021. The Applicant is ordered to report to her previous place of work at the customary time.
31. The Respondent is further ordered to pay the Applicant back pay in the amount of R103020.50 (one hundred and three thousand and twenty Rand and fifty cents) by 31 August 2021.
32. Interest accrues on the amount at the prescribed rate.
D H Smith
ELRC PANELIST
15 August 2021
ELRC 302 -20 /21 NW
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