ELRC233-21/22WC
Award Date:
30 August 2021
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Panelist: Jonathan Gruss
Case No.: ELRC233-21/22WC
Date of Award: 30 August 2021
In the ARBITRATION between:
Ebrahim Solomon
( Applicant)
and
Department of Education: Western Cape
(Respondent)
Applicant’s representative: In person
Respondent’s representative: Ms Mthwazi
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 13 August 2021 and the proceedings were electronically recorded. The applicant, Ebrahim Solomon referred an enforcement dispute to the ELRC. The applicant conducted his own case. The respondent, Department of Education: Western Cape were represented by Ms Mthwazi, Labour Relations Officer in the Directorate of Employee Relations.
ISSUE TO BE DECIDED
2. This dispute concerns the alleged none-payment of the applicant’s salary for the months of February 2020 to June 2020. I am required to determine whether the applicant was employed by the respondent and thereafter determine whether the respondent was indebted to the applicant for the none-payment of remuneration.
BACKGROUND TO THE ISSUES
3. The applicant claims that he was employed as a temporary educator by the Principal of Ikanvalethu Secondary School with the understanding that his salary would be paid by the respondent at the rate he earned in the past when he was permanently employed.
4. The respondent disputes that the applicant was ever employed by them and avers that he was employed by the SGB of Ikanvalethu Secondary School on a fixed term contract for the period February to April 2020.
SURVEY OF EVIDENCE
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6. The applicant gave evidence under oath to the following effect. At first, Mr Mbeci, the Principal of the High School informed him that they would be opening another class and documentation was in the process to be submitted to the respondent to add new posts due to an increase in learner numbers. His understanding was that when the documentation is approved he will be paid by the respondent. Mr Mbeci assured him the documentation had been submitted and it was on that basis that he stayed until the end of the term in June 2020. He taught mathematics and science for the entire period, and during the period February to April he was paid a stipend of R17 000.00 by the SGB. He was told at the end of May 2020 by Mr Mbeci that the SGB did not have any funds to continue paying him. He continued teaching with the understanding that the respondent would open up a post, create a growth post. At the end of July 2020 Mr Mbeci informed him that the post was a SGB post. He never signed a contract with either the SGB or the respondent. He is a fully qualified teacher registered with SACE and would never have agreed to be paid R17 000.00 for the entire period whereas he should have earned approximately R30 000.00 per month.
7. Under cross-examination, the applicant indicated that he was under the impression that he would be employed for a year and he was unaware that he would be paid by the SGB when employed. He was told that the SGB would pay him a stipend and as soon as the respondent creates a post for him and appoints him, he was expected to pay back the money paid to him by the SGB. It was suggested to the applicant that the respondent did not create a growth post. The applicant’s response thereto was that was the respondent’s problem. He confirmed that he was aware that principals do not have the authority to appoint employees of the respondent but indicated that principals take direction from circuit managers. He could not provide any proof that he was employed by the respondent in that the understanding he had was with the Principal, Mr Mbeci and not with the respondent. He trusted Mr Mbeci.
8. The respondent did lead any evidence and argued concerning responses given by the applicant under cross-examination that the applicant was never employed by the respondent and was an employee of the SGB.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
9.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
9.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
10. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
10.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
10.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
9. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
10. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee.
11. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
12. In order for the applicant to be entitled to be remunerated by the respondent he must be an employee of the respondent.
13. It appears that the applicant’s motivation or reason for teaching at Ikanvalethu Secondary School was founded on a chance or hope that the respondent would create a growth post for him due to an increase in learner numbers. This did not materialise although the necessary documentation was sent to the respondent by Mr Mbeci in that the respondent did not create a growth post as hoped for. The applicant simply took a gamble in that had the respondent created a growth post, the applicant would have most likely been appointed in that he was already at the school as an SGB employee. This reminds me of the saying do not count one’s chickens before they hatch.
14. I therefore make the following award.
AWARD
15. The applicant, Ebrahim Solomon was not an employee of the Department of Education: Western Cape during the period February to June 2020 and therefore they are not indebted to him for services he rendered at Ikanvalethu Secondary School.
Name: Jonathan Gruss
(ELRC) Arbitrator
Case No.: ELRC233-21/22WC
Date of Award: 30 August 2021
In the ARBITRATION between:
Ebrahim Solomon
( Applicant)
and
Department of Education: Western Cape
(Respondent)
Applicant’s representative: In person
Respondent’s representative: Ms Mthwazi
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 13 August 2021 and the proceedings were electronically recorded. The applicant, Ebrahim Solomon referred an enforcement dispute to the ELRC. The applicant conducted his own case. The respondent, Department of Education: Western Cape were represented by Ms Mthwazi, Labour Relations Officer in the Directorate of Employee Relations.
ISSUE TO BE DECIDED
2. This dispute concerns the alleged none-payment of the applicant’s salary for the months of February 2020 to June 2020. I am required to determine whether the applicant was employed by the respondent and thereafter determine whether the respondent was indebted to the applicant for the none-payment of remuneration.
BACKGROUND TO THE ISSUES
3. The applicant claims that he was employed as a temporary educator by the Principal of Ikanvalethu Secondary School with the understanding that his salary would be paid by the respondent at the rate he earned in the past when he was permanently employed.
4. The respondent disputes that the applicant was ever employed by them and avers that he was employed by the SGB of Ikanvalethu Secondary School on a fixed term contract for the period February to April 2020.
SURVEY OF EVIDENCE
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6. The applicant gave evidence under oath to the following effect. At first, Mr Mbeci, the Principal of the High School informed him that they would be opening another class and documentation was in the process to be submitted to the respondent to add new posts due to an increase in learner numbers. His understanding was that when the documentation is approved he will be paid by the respondent. Mr Mbeci assured him the documentation had been submitted and it was on that basis that he stayed until the end of the term in June 2020. He taught mathematics and science for the entire period, and during the period February to April he was paid a stipend of R17 000.00 by the SGB. He was told at the end of May 2020 by Mr Mbeci that the SGB did not have any funds to continue paying him. He continued teaching with the understanding that the respondent would open up a post, create a growth post. At the end of July 2020 Mr Mbeci informed him that the post was a SGB post. He never signed a contract with either the SGB or the respondent. He is a fully qualified teacher registered with SACE and would never have agreed to be paid R17 000.00 for the entire period whereas he should have earned approximately R30 000.00 per month.
7. Under cross-examination, the applicant indicated that he was under the impression that he would be employed for a year and he was unaware that he would be paid by the SGB when employed. He was told that the SGB would pay him a stipend and as soon as the respondent creates a post for him and appoints him, he was expected to pay back the money paid to him by the SGB. It was suggested to the applicant that the respondent did not create a growth post. The applicant’s response thereto was that was the respondent’s problem. He confirmed that he was aware that principals do not have the authority to appoint employees of the respondent but indicated that principals take direction from circuit managers. He could not provide any proof that he was employed by the respondent in that the understanding he had was with the Principal, Mr Mbeci and not with the respondent. He trusted Mr Mbeci.
8. The respondent did lead any evidence and argued concerning responses given by the applicant under cross-examination that the applicant was never employed by the respondent and was an employee of the SGB.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
9.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
9.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.
10. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:
10.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
10.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee's employer is a party to the Council;
9. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.
10. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee.
11. Section 32(3) of the BCEA states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
12. In order for the applicant to be entitled to be remunerated by the respondent he must be an employee of the respondent.
13. It appears that the applicant’s motivation or reason for teaching at Ikanvalethu Secondary School was founded on a chance or hope that the respondent would create a growth post for him due to an increase in learner numbers. This did not materialise although the necessary documentation was sent to the respondent by Mr Mbeci in that the respondent did not create a growth post as hoped for. The applicant simply took a gamble in that had the respondent created a growth post, the applicant would have most likely been appointed in that he was already at the school as an SGB employee. This reminds me of the saying do not count one’s chickens before they hatch.
14. I therefore make the following award.
AWARD
15. The applicant, Ebrahim Solomon was not an employee of the Department of Education: Western Cape during the period February to June 2020 and therefore they are not indebted to him for services he rendered at Ikanvalethu Secondary School.
Name: Jonathan Gruss
(ELRC) Arbitrator
ELRC 302 -20 /21 NW
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