ELRC865-20/21EC
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Award Date:
17 August 2021
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Commissioner: George Georghiades
Case No.: ELRC865-20/21EC
Date of Award: 17 August 2021
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Ms Sine Du Preez, and the Department of Education, Eastern Cape, was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 08 July 2021 and held on 03 August 2021, as referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 read with Clause 17, Part C of the ELRC Constitution, ELRC Collective Agreement No 6 of 2016 .
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. The applicant was represented by Ms. Venita van Wyk, Assistant Provincial Secretary of SAOU, while the respondent was represented by Mr. Samuel Louw, Labour Relations Officer of the respondent. The parties submitted their evidence bundles upon which they intended relying to the panelist via email, copying the opposing party prior to the commencement of the arbitration proceedings. The respondent submitted its bundle of documents which was marked as bundle “R” and the applicant submitted its bundle, which was marked as bundle “A”.
PRELIMINARY ISSUES
4. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
5. Although this matter was brought in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (LRA) and allegedly relates to the unfair conduct by the employer relating to appointments and promotion, after having inquired as to the nature of the dispute, it was apparent that the dispute should have been referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 read with Clause 17, Part C of the ELRC Constitution, ELRC Collective Agreement No 6 of 2016 . I have dealt with this dispute as an enforcement dispute in terms of Clause 69 of Part C of the ELRC Constitution.
6. I am tasked to establish whether the respondent conducted itself unfairly by failing to remunerate the applicant for the period for which she served in a position in which she had been appointed for, for a period of four months.
7. The applicant has requested that should I find in her favour, that she be remunerated for the four (4) months for which she was appointed into the position for which she had applied and was appointed.
BACKGROUND TO THE DISPUTE
8. The parties mutually agreed that as no witnesses were to be called and that as the issues in dispute and all relevant documents required to dispose of the matter were contained in their evidence bundles, the parties requested that the panelist determine the dispute on the papers.
9. The panelist ruled that the parties should address him on the background of the dispute, present their opening statements and their relief sought. The matter would thereafter be determined on papers.
10. The dispute arose as a result of the appointment of the applicant by the respondent having been withdrawn, after she had been informed that she was appointed into the position for which she had applied and provided with an appointment letter.
11. She signed the acceptance of the appointment and commenced employment in the position in which she was appointed. The respondent unduly retracted the appointment letter.
12. The respondent acknowledged that a withdrawal letter was issued to the applicant, but this was done fairly and procedurally, as the applicant had failed to declare a previous employment position in her application for the post for which she had applied.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
13. An educational post was advertised on 11 February 2020, in the Sarah Baartman District, Eastern Cape, in the Government Bulletin, Volume 3 of 2020 with the post number being 225.
14. The applicant applied for the post and was invited to attend an interview. She was recommended for the post
15. She received an “Offer of Employment” letter from the Department of Education Eastern Cape on 29 September 2020. On 16 October 2020, she accepted the offer of employment in writing.
16. She completed an acceptance form to assume duty, effective on 01 November 2020. She commenced with her duties accordingly at De Mistkraal Primary school on 01 November 2020.
17. She taught learners in grade R and when the small farm schools in the surrounding areas amalgamated, she was moved to a post where she taught grade 2 learners.
18. In a letter dated 24 February 2021, addressed to the school principal, Ms Pietersen, the Humansdorp CMC head, Mr. Garth Jacobs, informed her principal that the applicant’s application was unsuccessful because she had resigned from, and did not disclose that she was previously employed in a post in the Western Cape.
19. She disputed this, referring to a document (EDP 01) submitted as part of her application for the position, wherein she disclosed her previous employment at A. F. Louw Primary School, in Stellenbosch, Western Cape, where she taught English to grade 2 learners.
20. She attached her Curriculum Vitae (CV to) in support of her application, which included the same information together with an application letter, wherein she disclosed her previous employment and previous experience to the department for consideration.
21. During her follow-up communications with the department’s HR personnel, after the department had advised her of the discovery of her previous employment and her alleged failure to disclose this, it became evident that the HR official who had perused her CV in respect of her employment application was not fluent in Afrikaans, the language in which her CV was drafted and as such, had failed to consider this.
22. The department official conceded that she had also failed to see the disclosure of the applicant’s previous employment in her application, claiming that this was because the applicant had entered this information in the incorrect space in the application.
23. She was not remunerated for the period for which she was employed in that position and seeks to be remunerated in the amount of R 127 884.00, being the 4-month period for which she served in that position. A confirmation of her attendance, signed by the school principal, Ms. Pietersen, was submitted to confirm that the applicant served in the appointed position for approximately 4 months.
24. The remuneration sought is calculated as follows:
A monthly salary of R23,336.50 as per her notch offered of R280 038.00 for 4 months;
An additional 37% of the applicant’s monthly salary in lieu of benefits forfeited (pension, medical aid, subsidy, housing allowance, bonus, etc.) calculated at R8,634.50 per month for 4 months.
Total per month (salary and 37% benefits): R 31 971.00 x 4 months = R 127 884.00
THE RESPONDENT’S CASE
25. The applicant applied for a post which was advertised in Vol 3 of 2020, for which she was recommended by the Mistkraal Primary School Governing Body (SGB).
26. The department accepted the recommendations of the SGB. The applicant was offered the post which she duly accepted, whereafter she took up her position at Mistkraal School on 01 November 2020.
27. During the processing of the applicant’s appointment on the department’s system, the HR officials became aware that the applicant had resigned from a post where she was employed in the Western Cape. This was not disclosed by the applicant in her application for the position in which she was appointed.
28. Her recommendation for appointment to the post for which she had applied, was approved by the department due to the omission of the applicant’s disclosure in her application.
29. The applicant was informed by the HR office of the discovery within two weeks of her recommendation for appointment. She was informed that as a result of the discovery of her previous employment, which was not disclosed, her appointment could not be processed.
30. The applicant was informed that a senior HR official would notify the school principal of the situation. The applicant was further informed that she would not be appointed to the position for which she had applied and for which she had been appointed.
31. The respondent conceded that the applicant was employed by the respondent for a period of 4 months, in the position for which the respondent claimed she was erroneously appointed. The respondent did not dispute the quantum of the remuneration being claimed by the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. I considered all relevant evidence and arguments submitted and raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
33. The applicant based her case on the premise that she had applied for a post in line with the requirements and instructions, as per the application form and submitted her application to the department for consideration.
34. She was interviewed, recommended for appointment, provided with an offer of employment, accepted the offer in writing and appointed to the post for which she had applied.
35. Contrary to the contents of the letter that she had received from the Humansdorp CMC head, Mr. Garth Jacobs, wherein it was alleged that she had failed to disclose a previous employment position in the Western Cape, she submitted a copy of her CV and application form, which confirmed that she had disclosed her previous employment. This was evident in both of the parties’ evidence bundles. The respondent did not refute this.
36. As it was the respondent’s argument that no such disclosure was made, with this being the reason for the withdrawal of the applicant’s appointment and the department’s failure to pay the applicant for the 4 months which she served in the appointed post, this argument appears to be highly improbable and as such, is found not to succeed.
37. The applicant provided confirmation of her attendance and the calculation of the amount that was being claimed. The respondent’s representative did not challenge this.
38. Guided by the evidence led, submissions made and reference to the provisions contained in the CV and application form for the post by the applicant, I am persuaded that the appointment was correctly made based on the applicant’s submissions and disclosures. Based on the documents submitted in the parties’ evidence bundles, the respondent’s withdrawal of the appointment of the applicant appeared to be unlawful.
39. As I am not required to determine the fairness of the appointment or to rule on whether the appointment is valid or not, I shall not do so. I am required to determine whether the applicant was entitled to remuneration for the period for which she was employed and appointed at Mistkraal Primary School. I have done so as an enforcement dispute in terms of Clause 69 of Part C of the ELRC Constitution.
40. No evidence was led by the respondent that the applicant had not carried out her duties and responsibilities in line with her appointment. As a result of the respondent having failed to conduct itself properly insofar as its failure to have remunerated the applicant for the period for which she was appointed at Mistkraal Primary School, subsequent to her application and successful appointment , I am persuaded that the applicant is entitled to the remuneration during the four (4) months that she was employed at Mistkraal Primary School, in the amount of R 127 884.00.
Award
1. The respondent, the Department of Education Eastern Cape is ordered to pay the applicant, Ms. Sine Du Preez, the amount of R 127 884 (one hundred and twenty-seven thousand, eight hundred and eighty-four rand).
2. This amount is in respect of four months’ remuneration for the period that the applicant served in the appointed position at Mistkraal Primary School.
2. The respondent is ordered to pay this amount to the applicant by no later than 06 September 2021.
George Georghiades
ELRC Dispute Resolution Panelist
Case No.: ELRC865-20/21EC
Date of Award: 17 August 2021
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Ms Sine Du Preez, and the Department of Education, Eastern Cape, was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 08 July 2021 and held on 03 August 2021, as referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 read with Clause 17, Part C of the ELRC Constitution, ELRC Collective Agreement No 6 of 2016 .
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. The applicant was represented by Ms. Venita van Wyk, Assistant Provincial Secretary of SAOU, while the respondent was represented by Mr. Samuel Louw, Labour Relations Officer of the respondent. The parties submitted their evidence bundles upon which they intended relying to the panelist via email, copying the opposing party prior to the commencement of the arbitration proceedings. The respondent submitted its bundle of documents which was marked as bundle “R” and the applicant submitted its bundle, which was marked as bundle “A”.
PRELIMINARY ISSUES
4. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
5. Although this matter was brought in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (LRA) and allegedly relates to the unfair conduct by the employer relating to appointments and promotion, after having inquired as to the nature of the dispute, it was apparent that the dispute should have been referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 read with Clause 17, Part C of the ELRC Constitution, ELRC Collective Agreement No 6 of 2016 . I have dealt with this dispute as an enforcement dispute in terms of Clause 69 of Part C of the ELRC Constitution.
6. I am tasked to establish whether the respondent conducted itself unfairly by failing to remunerate the applicant for the period for which she served in a position in which she had been appointed for, for a period of four months.
7. The applicant has requested that should I find in her favour, that she be remunerated for the four (4) months for which she was appointed into the position for which she had applied and was appointed.
BACKGROUND TO THE DISPUTE
8. The parties mutually agreed that as no witnesses were to be called and that as the issues in dispute and all relevant documents required to dispose of the matter were contained in their evidence bundles, the parties requested that the panelist determine the dispute on the papers.
9. The panelist ruled that the parties should address him on the background of the dispute, present their opening statements and their relief sought. The matter would thereafter be determined on papers.
10. The dispute arose as a result of the appointment of the applicant by the respondent having been withdrawn, after she had been informed that she was appointed into the position for which she had applied and provided with an appointment letter.
11. She signed the acceptance of the appointment and commenced employment in the position in which she was appointed. The respondent unduly retracted the appointment letter.
12. The respondent acknowledged that a withdrawal letter was issued to the applicant, but this was done fairly and procedurally, as the applicant had failed to declare a previous employment position in her application for the post for which she had applied.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
13. An educational post was advertised on 11 February 2020, in the Sarah Baartman District, Eastern Cape, in the Government Bulletin, Volume 3 of 2020 with the post number being 225.
14. The applicant applied for the post and was invited to attend an interview. She was recommended for the post
15. She received an “Offer of Employment” letter from the Department of Education Eastern Cape on 29 September 2020. On 16 October 2020, she accepted the offer of employment in writing.
16. She completed an acceptance form to assume duty, effective on 01 November 2020. She commenced with her duties accordingly at De Mistkraal Primary school on 01 November 2020.
17. She taught learners in grade R and when the small farm schools in the surrounding areas amalgamated, she was moved to a post where she taught grade 2 learners.
18. In a letter dated 24 February 2021, addressed to the school principal, Ms Pietersen, the Humansdorp CMC head, Mr. Garth Jacobs, informed her principal that the applicant’s application was unsuccessful because she had resigned from, and did not disclose that she was previously employed in a post in the Western Cape.
19. She disputed this, referring to a document (EDP 01) submitted as part of her application for the position, wherein she disclosed her previous employment at A. F. Louw Primary School, in Stellenbosch, Western Cape, where she taught English to grade 2 learners.
20. She attached her Curriculum Vitae (CV to) in support of her application, which included the same information together with an application letter, wherein she disclosed her previous employment and previous experience to the department for consideration.
21. During her follow-up communications with the department’s HR personnel, after the department had advised her of the discovery of her previous employment and her alleged failure to disclose this, it became evident that the HR official who had perused her CV in respect of her employment application was not fluent in Afrikaans, the language in which her CV was drafted and as such, had failed to consider this.
22. The department official conceded that she had also failed to see the disclosure of the applicant’s previous employment in her application, claiming that this was because the applicant had entered this information in the incorrect space in the application.
23. She was not remunerated for the period for which she was employed in that position and seeks to be remunerated in the amount of R 127 884.00, being the 4-month period for which she served in that position. A confirmation of her attendance, signed by the school principal, Ms. Pietersen, was submitted to confirm that the applicant served in the appointed position for approximately 4 months.
24. The remuneration sought is calculated as follows:
A monthly salary of R23,336.50 as per her notch offered of R280 038.00 for 4 months;
An additional 37% of the applicant’s monthly salary in lieu of benefits forfeited (pension, medical aid, subsidy, housing allowance, bonus, etc.) calculated at R8,634.50 per month for 4 months.
Total per month (salary and 37% benefits): R 31 971.00 x 4 months = R 127 884.00
THE RESPONDENT’S CASE
25. The applicant applied for a post which was advertised in Vol 3 of 2020, for which she was recommended by the Mistkraal Primary School Governing Body (SGB).
26. The department accepted the recommendations of the SGB. The applicant was offered the post which she duly accepted, whereafter she took up her position at Mistkraal School on 01 November 2020.
27. During the processing of the applicant’s appointment on the department’s system, the HR officials became aware that the applicant had resigned from a post where she was employed in the Western Cape. This was not disclosed by the applicant in her application for the position in which she was appointed.
28. Her recommendation for appointment to the post for which she had applied, was approved by the department due to the omission of the applicant’s disclosure in her application.
29. The applicant was informed by the HR office of the discovery within two weeks of her recommendation for appointment. She was informed that as a result of the discovery of her previous employment, which was not disclosed, her appointment could not be processed.
30. The applicant was informed that a senior HR official would notify the school principal of the situation. The applicant was further informed that she would not be appointed to the position for which she had applied and for which she had been appointed.
31. The respondent conceded that the applicant was employed by the respondent for a period of 4 months, in the position for which the respondent claimed she was erroneously appointed. The respondent did not dispute the quantum of the remuneration being claimed by the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. I considered all relevant evidence and arguments submitted and raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
33. The applicant based her case on the premise that she had applied for a post in line with the requirements and instructions, as per the application form and submitted her application to the department for consideration.
34. She was interviewed, recommended for appointment, provided with an offer of employment, accepted the offer in writing and appointed to the post for which she had applied.
35. Contrary to the contents of the letter that she had received from the Humansdorp CMC head, Mr. Garth Jacobs, wherein it was alleged that she had failed to disclose a previous employment position in the Western Cape, she submitted a copy of her CV and application form, which confirmed that she had disclosed her previous employment. This was evident in both of the parties’ evidence bundles. The respondent did not refute this.
36. As it was the respondent’s argument that no such disclosure was made, with this being the reason for the withdrawal of the applicant’s appointment and the department’s failure to pay the applicant for the 4 months which she served in the appointed post, this argument appears to be highly improbable and as such, is found not to succeed.
37. The applicant provided confirmation of her attendance and the calculation of the amount that was being claimed. The respondent’s representative did not challenge this.
38. Guided by the evidence led, submissions made and reference to the provisions contained in the CV and application form for the post by the applicant, I am persuaded that the appointment was correctly made based on the applicant’s submissions and disclosures. Based on the documents submitted in the parties’ evidence bundles, the respondent’s withdrawal of the appointment of the applicant appeared to be unlawful.
39. As I am not required to determine the fairness of the appointment or to rule on whether the appointment is valid or not, I shall not do so. I am required to determine whether the applicant was entitled to remuneration for the period for which she was employed and appointed at Mistkraal Primary School. I have done so as an enforcement dispute in terms of Clause 69 of Part C of the ELRC Constitution.
40. No evidence was led by the respondent that the applicant had not carried out her duties and responsibilities in line with her appointment. As a result of the respondent having failed to conduct itself properly insofar as its failure to have remunerated the applicant for the period for which she was appointed at Mistkraal Primary School, subsequent to her application and successful appointment , I am persuaded that the applicant is entitled to the remuneration during the four (4) months that she was employed at Mistkraal Primary School, in the amount of R 127 884.00.
Award
1. The respondent, the Department of Education Eastern Cape is ordered to pay the applicant, Ms. Sine Du Preez, the amount of R 127 884 (one hundred and twenty-seven thousand, eight hundred and eighty-four rand).
2. This amount is in respect of four months’ remuneration for the period that the applicant served in the appointed position at Mistkraal Primary School.
2. The respondent is ordered to pay this amount to the applicant by no later than 06 September 2021.
George Georghiades
ELRC Dispute Resolution Panelist
ELRC 302 -20 /21 NW
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