ELRC644-20/21 EC
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ELRC339-20/21FS
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Award Date:
24 September 2021
Case No: ELRC339-20/21FS
In the matter between
Wesley Zamani Mjwara Applicant
And
Education Department of the Free State Respondent
PANELLIST: Dr. GC. Van Der Berg
Award Date: 24 September 2021
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing was held on 14 September 2021 at 09:00 via digital zoom conference from Cape Town, under the auspices of the Education Labour Relations Council (“ELRC”). The proceedings were both digitally and manually recorded. The applicant, Wesley Zamani Mjwara represented himself. The respondent, Education Department of the Free State, was represented by Vuyisele Gubuza, Deputy Director Labour Relations. The dispute related to the enforcement of the provisions of the Basic Conditions of Employment Act No. 55 of 1998 (BCEA). The ELRC has jurisdiction to deal with disputes concerning the enforcement of the BCEA and unfair labour practice disputes.
Issue to be decided
2. The applicant referred a dispute of non-payment of salary to the ELRC and not an unfair labour practice. Section 69 of the ELRC Constitution makes provision for the enforcement of the BCEA conditions by the Council (ELRC). It is therefore upon this premise that I dealt with this dispute, as the applicant’s claim related to the enforcement of salary payments. The arbitration proceeding concerned the non–payment of salary by the respondent from 13 January 2020 to 9 June 2020, to the amount of R18 185-12 per month.
3. I am required to determine whether or not the respondent unlawfully failed to pay the applicant his salary, and whether the applicant was employed by the Education Department of the Free State during the period from 13 January 2020 to 9 June 2020.
4. In terms of appropriate relief in the event that I find that the applicant was employed by the respondent:
a. Whether the applicant must be paid his salary from 13 January 2020 up to 9 June 2020 to the amount of R18 185-12 per month minus normal and statutory deductions.
Background to the Dispute
5. The applicant claimed the he was employed as an educator by the Department of Education of the Free State for the period 13 January 2020 up to 9 June 2020 in a TEACH SA post and placed at Springfontein Secondary School (“the School”). The respondent never paid him from 13 January until 9 June 2020, despite the month to month consultations with them through the Principal. The respondent kept on promising that he will be paid at month end, but it never happened. This was denied by the respondent as they claimed that his appointment was only approved from 10 June 2020 to 31 December 2020 on an ad hoc post and he was then paid accordingly.
6. He worked at the School since 13 January 2020 and the respondent was aware of his issue of non-payment of his salary. Close to the end of March 2020, South Africa went on a lockdown due to Covid-19 and the provisions of the National Disaster Act. He worked from home and continued with his duties as soon as the level of lockdown changed that he could return to school. The dispute arose on 31 January 2020 when he was not paid and he referred the dispute to the ELRC to assist him to be paid his salary.
7. The parties did present opening statements and only the applicant presented a written closing statement, as agreed, on or before 21 September 2021. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
8. Only the applicant submitted a bundle of documents. The bundle of the applicant was marked as “A” pages 1-49. The respondent used the same bundle as the applicant. The respondent did not dispute the authenticity of the applicant’s bundles. No pre-arbitration minutes was submitted by the parties. During the arbitration the respondent used other documentation and it was agreed that it could be submitted to the applicant and the Panellist by email, which the representative of the respondent did. This bundle of the respondent was marked as “R” pages 1 to 10.
9. * As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The applicant, Wesley Zamani Mjwara, after having been sworn in, testified as follows:
10. He claims his salary to be paid by the Department of Education for the period from 13 January 2020 up to 9 June 2020. Even the Director of the District was aware of the non-payment of his salary. The School has a post available to be filled with a teacher that was recruited by Teach SA. He was contacted by Teach SA and the School. He went to Springfontein Secondary School on 13 January 2020. The Department of Education in the Free State was made aware of it. Three weeks after he was called by Teach SA, he was called into a meeting with others by the Director of the District. The Director was aware that he teach psychical science under Teach SA at the School.
11. He contacted the District and they responded that he will be paid for the time teaching at the School. He was also in contact with Thato who dealt with his case. He failed to support him and the applicant went to the Director of the District and he promised that his case will be resolved and he will get his money. From the side of him and the School, they tried to resolve the matter but all effort did not work. Then he referred the dispute to the ELRC.
12. He stated that his proof that he was teaching at the School is the attendance registers in bundle “A” as well as the completed and signed PO20 form. This form was filed by him and the Principal of the School and sent to the District. They also sent a letter to the Deputy Director of Human Resources asking about the non-payment of the salary from 13 January up to 9 June 2020. The Director sent a letter to the Provincial Office regarding an intervention on 9 July 2020. He confirmed that a teacher’s salary on P1 is R18 185-12 per month. He said that he was employed by the Department of Education from 13 January 2020 up to 31 December 2020 under his persal number, but was only paid by them from 10 June 2020 up to 31 December 2020.
13. Under cross-examination he agreed that he reived his persal number under the Department of Education in Gauteng and he has no proof that it was a number received from the Department of Education in the Free State. He confirmed that he was in the beginning contacted by Teach SA and the School. He agreed that Teach SA is a Non- Governmental Organisation (NGO) and they worked with the Department of Education. He explained the process as follow: The Department of Education identified the School who had a post and then called to fill the position. Educators are called by Teach SA and introduced the person to the School and placed him there. The School then recommended the educator to the Department of Education, and the Department appointed the educator. He was recommended by the School Governing Body (SGB). He received no letter as he was called by the SGB to report at the School. The recommendation document was signed by the SGB and sent to the Department of Education in the Free State.
14. The Department was made aware via the completed PO20 form. He agreed that the form that was signed indicated on it that he was appointed on an ad hoc post, and he was paid from 10 June to 31 December 2020. He was invited to the meeting of the District when an invitation was sent to all schools and not personally to him. The invitation was for the post and he was in that post. The Director of the District was personally there and the applicant has a conversation with him and he acknowledged that the applicant was at the Springfontein Secondary School. It was put to him that the Department of Education informed him and the School that he was in access, and he responded by saying that the representative of the respondent is lying. He was not even aware that the School had access educators.
15. He was showed a document in the added bundle of the respondent “R” dated via a date stamp as 22 January 2021. It was the recommendation to the department for 2021 and it was not explained to the applicant by the Principal. Another PO20 document was stamped as 21 January 2020 and signed by the Principal on 21 January 2020. At the bottom of this document on page 8 of bundle “R”, it states that the School is overstaffed and the Director is request to grant an ad hoc post. This first PO20 for 2019 on pages 1-4 of bundle “A”, was never approved by the Department of Education, as documentation was needed from the applicant on two occasions. He stated that he and the Principal sent the required documentation with the original form and on request sent it twice thereafter. On page 9 of bundle “R” it can be seen that the Director of the District appointed the applicant in an ad hoc post from 10 June 2020. The ad hoc post was signed on 18 June 2020.
16. He disagreed when it was put to the applicant that the person who owed the applicant money from 13 January 2020 up to 9 June 2020, is the Principal and the SGB. He agreed that he was not the only Science teacher at the School in 2020. He was advised that he either voluntary teach at the School from January to June 2020, or he must ask the SGB to pay him. He provided two letters to the District and it was stamped on 07 July 2020. Other proof was only telephonically and he received an answer from the District. It was put to him that there was a response from the Acting CES directed to the Deputy Director Human Resources and the District Director, indicating that there is a list of schools where teachers were not paid from January to April 2020. The applicant’s name appears next to the School, and next to his name it states “qualification not submitted”. It was signed at the bottom of page 3 of bundle “R”, by PS Lepoko. Nowhere in this document has it stated that this response was addressed to the applicant.
17. He was told that the second last page (9) in the added bundle, indicates that the provision of posts were 13 in 2019 and 11 in 2020. This means there was minus two positions and that was the reason that there was no Teach SA post available to be filled. He stated that he was contacted to work at the School, and to be appointed by the Education Department of the Free State.
The witness of the applicant, KM Rigala, Principal at Springfontein Secondary School, after having been sworn in, testified as follows:
18. He testified that the staff establishment for 2020 was received in 2019. Teach SA post was available after the previous teacher was promoted. The SGB called Teach SA and the applicant was contacted by Teach SA. Upon his arrival in Springfontein he started to work as teacher on 13 January 2020. The PO20 was completed and signed by the applicant, the SGB and the Principal, and sent with all documentation to the Department of Education in the Free State for appointment. He was surprised in June 2020 when reasons were given for the non-appointment of the applicant and the appointment of the applicant on an ad hoc post from 10 June 2020. The reasons that was given was that the applicant did not qualify, but he was teaching the learners from 13 January 2020 to June 2020 in Physical Science for different classes.
19. The witness stated that the Principal and the SGB contacted the Department of Education to approve the post which they did not do until June 2020. The Department must pay the applicant for the period he worked and was not paid. They also contacted the District in July 2020 enquiring about the appointment and payment of the applicant.
20. Under cross-examination he confirmed that the Department of Education wanted the missing CV and qualifications of the applicant and it was resent on 20 March 2020. It was put to him since that date until June 2020 nobody attended School as nobody was working in South Africa. The witness responded that the applicant returned in May 2020 to the School as can be seen on his attendance registers in bundle “A”. He stated that the document that states that teachers were not paid at different Schools was sent to him in April or May 2020. He stated that Teach SA contact the District about the post. He and the SGB knew what to do and they got another teacher from Teach SA. Teach SA was introduced to the schools by the Department of Education.
21. He agreed that in October 2019 he was given the staff establishment for 2020 and the school was going to lose two posts. Although he was informed that they could not appoint as there was two educators in access, the special needs post and the Teach SA post was available for 2020. He was told that the special needs and Teach SA was not approved, and he disagreed with that, as he stated that the Department of Education said the number of positions available. He and the SGB decided which post to lose. The representative of the respondent differed with the witness and stated that the Department is specific which post is lost and 13 position became 11 in 2020, and the special needs and Teach SA positions were not approved. The witness differ from the representative and stated that 13 positions were approved in 2019 and 11 in 2020, but the special needs and Teach SA were still available to be filled.
22. The witness explained that the applicant was sent to the School by Teach SA. The necessary documentation was completed and sent to the Department of Education for appointment. The PO20 was signed by the witness and the SGB in January 2020. He resigned the same form on 22 January 2021 for further appointment of the applicant but he was not further appointed. The first PO20 was signed on 21 January 2020 and the appointment of the applicant was on 10 June 2020 on an ad hoc post. The purpose of the PO20 was that paperwork must be done and appointed at the Department of Education. They did not receive anything from the Department of Education that the request to appoint the applicant was accepted or rejected.
23. Under further cross-examination he confirmed that by telephonic conversations with the District Director, Director Human Resources and Thato he was told that the applicant was appointed. It is however clear from documentation that the applicant was appointed in June 2020 by the Department of Education. He was asked whether he allowed the applicant to work in the School from January to June 2020 without any appointment and he answered that the applicant was sent to the School by the Department of Education. He indeed received a document where the Department of Education circulate to Schools that they must stop appointing teachers without approval from the Department of Education, but it was sent late in 2020.
24. Under re-examination he confirmed that the District notified Teach SA to go ahead and the applicant was sent to the School.
Respondent’s evidence and argument
The witness of the respondent, Frans Kraalshoek, Deputy Director Human Resources, Gariep District, after having been sworn in, testified as follows:
25. He stated that for the applicant to be appointed the first step was to look at the Provisioning Post document on page 4 of bundle “R”. If such a post existed for a teacher from Teach SA for 2020, then first approval must be obtained from the District. It was clear that only 11 educators were approved for 2020. The School did not qualify to appoint the applicant as they were in access of two educators. Later it was approved in June 2020 by the District when the applicant was appointed from June to December 2020 on an ad hoc post. The final staff establishment for 2020 was confirmed by the Department of Education on 10 September 2019 as 11 educators with an access of educators as two. This was determined on the number of learners. All the posts were included in the 11 and it was communicated to the School.
26. According to his testimony, the School was not allowed to appoint the applicant when they qualified in 2020 for only 11 educators. The letter on pages 2 to 3 of bundle ”R” was written to him, request all outstanding information on teachers that were not paid from January 2020 to April 2020 at different schools in the Free State. It was then reported that the schools were in access of educators. He stated that the applicant worked at Springfontein Secondary School from January to June 2020 without proper approval and appointment. It is therefore the responsibility of the SGB, as the applicant was only appointed by the Department of Education as from June 2020 to December 2020 on an ad hoc post and paid accordingly. The policy is very clear that no teacher may assume duties without proper approval and appointment by the Department of Education.
27. He stated that the Department of Education in the Free State and Teach SA involvement was a special project after higher level engagements. It was approved in the Gariep District for Science teachers to be appointed and they received bursaries to obtain professional qualifications. It was consultation between the School and Teach SA to appoint the applicant and the Department was never involved in the original discussions. Therefore the SGB and the Principal is responsible to pay the salary of the applicant from January to June 2020.
28. Under cross-examination, he stated that the applicant was appointed without the approval of the Department of Education in 2020. There was a WhatsApp group for communication with the Principals Council. Various issues were discussed here and the School was informed about the non-appointment of the applicant. The School was informed that the applicant was appointed on an ad hoc post from 10 June 2020 to December 2020. He confirmed again that it was communicated to the schools that no teacher must assume duties without approval by the Department of Education. The appointment of the applicant was on the monthly control sheets and the Principal could verify his appointment on an ad hoc post.
Closing arguments
29. Only the applicant sent written closing arguments by 21 September 2021 as agreed on 14 September 2021. His submissions and arguments were perused and incorporated in the decisions made in the award.
Analysis of evidence and argument
30. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter. As the matter referred to the ELRC by the applicant relates to the non-payment of salary, the onus of proof rests upon the applicant for this claim to succeed.
31. The Panellist is expected to determine whether or not the respondent unlawfully failed to pay the applicant his salary, and whether the applicant was employed by the Education Department of the Free State during the period from 13 January 2020 to 9 June 2020. If I find that the applicant was employed by the respondent, I must decide whether the applicant must be paid his salary from 13 January 2020 up to 9 June 2020 to the amount of R18 185-12 per month, minus the normal and statutory deductions.
32. It is common cause that the applicant was recruited by Teach SA and sent to Springfontein Secondary School from 13 January 2020. It is further common cause that the applicant was employed and paid by the Department of Education in the Free State from 10 June 2020 up to 31 December 2020. It is also common cause that he was paid for the said period a salary of R18 128-12 per month, and he was an educator and teach Physical Science at the School.
33. It is the submission of the applicant that the Department of Education in the Free State enjoyed the services he rendered to it as a PL1 teacher at Springfontein Secondary School. The Department failed to pay him his salary from 13 January 2020 up to 9 June 2020. They also failed to properly communicate in writing what they are claiming, that he was not supposed to start working without an appointment letter. According to the applicant the officials of the Department of Education kept on promising that he would get his payment, of which they only kept their promise from 10 June 2020 to 31 December 2020, without an appointment letter
34. He further submits that in the 2019 provisional staff establishment for 2020, of the School there was a Teach SA post which he occupied teaching grade 8 to 10 learners in the School. He also attended all workshops organised by the District for both Natural Sciences and Physical Sciences. He produced a 100% pass in Physical Sciences for the School. The failure of the Department of Education to communicate to the School in writing while communicating internally in writing, makes the case lack evidence on his side, of which the Department is using it against the applicant. The Department of Education failed to communicate properly during the period 13 January 2020 to 9 June 2020. He was not paid and the period from 10 June 2020 to 31 December 2020, he was paid for.
35. A letter was written to the District Director on 9 July 2020 by the Principal of the School, as can be seen on page 2 of bundle “R”. It states that Mr WZ Mjwara persal number 28148428 was appointed in the TEACH SA post on 13 January 2013 with the assistance of the District and Teach SA Coordinator. All the relevant documents of the applicant were submitted to the district office on 17 January 2020. The District office responded by requesting the principal to submit the PO20 and stated the reason of the non-payment of the applicant as qualifications not submitted, although they were submitted in January 2020. The School then submitted the qualification of the applicant again. He was also made to sign the assumption of duty forms for the second time in June 2020 since he had already signed it in January 2020.
36. A PO20 document was stamped on 21 January 2020 and signed by the Principal and the SGB. At the bottom of this document on page 8 of bundle “R”, it states that the School is overstaffed and the Director is request to grant an ad hoc post. This first PO20 for 2019 on pages 1-4 of bundle “A”, was never approved by the Department as documentation was needed from the applicant on two occasions. On page 9 of bundle “R” it can be seen that the Director of the District appointed the applicant in an ad hoc post from 10 June 2020. The ad hoc post was signed on 18 June 2020.
37. The applicant disagreed when it was put to him that the person who owed the applicant money from 13 January 2020 up to 9 June 2020, is the Principal and the SGB. The Acting CES directed to the Deputy Director Human Resources and the District Director indicating that there is a list of schools where teachers were not paid from January to April 2020. The applicant’s name appears next to the School and next to his name it states “qualification not submitted”.
38. The process to be followed for the applicant to be appointed is that the first step was to look at the Provisioning Post document on page 4 of bundle “R”. If such a post existed for a teacher from Teach SA for 2020, then first approval must be obtained from the District. It was clear that only 11 educators was approved for 2020. The School did not qualify to appoint the applicant as they were in access of two educators. Later it was approved in June 2020 by the District when the applicant was appointed from June to December 2020 on an ad hoc post. The final staff establishment for 2020 was confirmed by the Department of Education on 10 September 2019 as 11 educators with an access of educators as two. This was determined on the number of learners. All the posts were included in the 11 and it was communicated to the School.
39. The witness of the applicant stated that the Principal and the SGB contacted the Department of Education to approve the post which they did not do until June 2020. The Department must pay the applicant for the period he worked and was not paid. They also contacted the District in July 2020 enquiring about the appointment and payment of the applicant.
40. The witness further confirmed that the Department wanted the missing CV and qualifications of the applicant and it was resent on 20 March 2020. The applicant returned in May 2020 to the School as can be seen on his attendance registers in bundle “A”. The document that states that teachers were not paid at different schools was sent to him in April or May 2020. He and the SGB knew what to do and they got another teacher from Teach SA. Teach SA was introduced to the schools by the Department of Education.
41. He agreed that in October 2019 he was given the staff establishment for 2020 and the school was going to lose two posts. Although he was informed that they could not appoint as there was two educators in access, the special needs post and the Teach SA post was available for 2020. He was told that the special needs and Teach SA was not approved, and he disagreed with this.
42. I find that he applicant assumed duties at Springfontein Secondary School on 13 January 2020, at behest of the SGB and Principal without formally appointed by the Department of Education in the Free State. The necessary documentation was completed but his appointment was not approved until 10 June 2020 on an ad hoc post up to 31 December 2020, and was paid for this period. The applicant argued that he was an employee of the Department of Education as he and the principal was told that by several officials of the Department of Education. The Principal provided him with the necessary PO20 forms and the SGB and he signed it with the Principal and the form with all his documentation was sent to the Department of Education.
43. From the is the testimony of the witness of the respondent it is clear that the applicant was not an employee of the Department of Education, as he was not appointed from 13 January 2020 to 9 June 2020 although he teach at the School as a Physical Science educator. His appointment was not approved due to the fact that some documentation was needed and based on the provisional establishment for 2020, the School was in access of two educators.
44. Based on the aforementioned, I find that on a balance of probabilities that the applicant has failed to successfully discharge the onus of proof that the respondent approved and appointed the applicant from 13 January 2020 up to 9 June 2020. Therefore the respondent not acted unlawfully in the non-payment of the applicant salary for the said period.
45. Please note that the ELRC has no jurisdiction over the SGB of the Springfontein Secondary School. If the applicant wants to obtain financial relief against the School Governing Body, it is recommended that he must sue the SGB in the civil courts.
46. In light of the above I make the following award.
AWARD
47. The applicant has failed to successfully discharge its onus in this matter to prove the respondent’s failure to pay the applicant a salary of R18 128-12 per month from 13 January 2020 to 9 June 2020, as the applicant was not approved and appointed during the said period, but only from 9 June 2020 up to 31 December 2020, on an ad hoc post by the Department of Education in the Free State.
48. As a result of the aforesaid, the matter brought under case number ELRC339-20/21FS is dismissed.
Signature:
Panelist: Gert van der Berg
Sector: Department of Education-Free State
In the matter between
Wesley Zamani Mjwara Applicant
And
Education Department of the Free State Respondent
PANELLIST: Dr. GC. Van Der Berg
Award Date: 24 September 2021
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing was held on 14 September 2021 at 09:00 via digital zoom conference from Cape Town, under the auspices of the Education Labour Relations Council (“ELRC”). The proceedings were both digitally and manually recorded. The applicant, Wesley Zamani Mjwara represented himself. The respondent, Education Department of the Free State, was represented by Vuyisele Gubuza, Deputy Director Labour Relations. The dispute related to the enforcement of the provisions of the Basic Conditions of Employment Act No. 55 of 1998 (BCEA). The ELRC has jurisdiction to deal with disputes concerning the enforcement of the BCEA and unfair labour practice disputes.
Issue to be decided
2. The applicant referred a dispute of non-payment of salary to the ELRC and not an unfair labour practice. Section 69 of the ELRC Constitution makes provision for the enforcement of the BCEA conditions by the Council (ELRC). It is therefore upon this premise that I dealt with this dispute, as the applicant’s claim related to the enforcement of salary payments. The arbitration proceeding concerned the non–payment of salary by the respondent from 13 January 2020 to 9 June 2020, to the amount of R18 185-12 per month.
3. I am required to determine whether or not the respondent unlawfully failed to pay the applicant his salary, and whether the applicant was employed by the Education Department of the Free State during the period from 13 January 2020 to 9 June 2020.
4. In terms of appropriate relief in the event that I find that the applicant was employed by the respondent:
a. Whether the applicant must be paid his salary from 13 January 2020 up to 9 June 2020 to the amount of R18 185-12 per month minus normal and statutory deductions.
Background to the Dispute
5. The applicant claimed the he was employed as an educator by the Department of Education of the Free State for the period 13 January 2020 up to 9 June 2020 in a TEACH SA post and placed at Springfontein Secondary School (“the School”). The respondent never paid him from 13 January until 9 June 2020, despite the month to month consultations with them through the Principal. The respondent kept on promising that he will be paid at month end, but it never happened. This was denied by the respondent as they claimed that his appointment was only approved from 10 June 2020 to 31 December 2020 on an ad hoc post and he was then paid accordingly.
6. He worked at the School since 13 January 2020 and the respondent was aware of his issue of non-payment of his salary. Close to the end of March 2020, South Africa went on a lockdown due to Covid-19 and the provisions of the National Disaster Act. He worked from home and continued with his duties as soon as the level of lockdown changed that he could return to school. The dispute arose on 31 January 2020 when he was not paid and he referred the dispute to the ELRC to assist him to be paid his salary.
7. The parties did present opening statements and only the applicant presented a written closing statement, as agreed, on or before 21 September 2021. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
8. Only the applicant submitted a bundle of documents. The bundle of the applicant was marked as “A” pages 1-49. The respondent used the same bundle as the applicant. The respondent did not dispute the authenticity of the applicant’s bundles. No pre-arbitration minutes was submitted by the parties. During the arbitration the respondent used other documentation and it was agreed that it could be submitted to the applicant and the Panellist by email, which the representative of the respondent did. This bundle of the respondent was marked as “R” pages 1 to 10.
9. * As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The applicant, Wesley Zamani Mjwara, after having been sworn in, testified as follows:
10. He claims his salary to be paid by the Department of Education for the period from 13 January 2020 up to 9 June 2020. Even the Director of the District was aware of the non-payment of his salary. The School has a post available to be filled with a teacher that was recruited by Teach SA. He was contacted by Teach SA and the School. He went to Springfontein Secondary School on 13 January 2020. The Department of Education in the Free State was made aware of it. Three weeks after he was called by Teach SA, he was called into a meeting with others by the Director of the District. The Director was aware that he teach psychical science under Teach SA at the School.
11. He contacted the District and they responded that he will be paid for the time teaching at the School. He was also in contact with Thato who dealt with his case. He failed to support him and the applicant went to the Director of the District and he promised that his case will be resolved and he will get his money. From the side of him and the School, they tried to resolve the matter but all effort did not work. Then he referred the dispute to the ELRC.
12. He stated that his proof that he was teaching at the School is the attendance registers in bundle “A” as well as the completed and signed PO20 form. This form was filed by him and the Principal of the School and sent to the District. They also sent a letter to the Deputy Director of Human Resources asking about the non-payment of the salary from 13 January up to 9 June 2020. The Director sent a letter to the Provincial Office regarding an intervention on 9 July 2020. He confirmed that a teacher’s salary on P1 is R18 185-12 per month. He said that he was employed by the Department of Education from 13 January 2020 up to 31 December 2020 under his persal number, but was only paid by them from 10 June 2020 up to 31 December 2020.
13. Under cross-examination he agreed that he reived his persal number under the Department of Education in Gauteng and he has no proof that it was a number received from the Department of Education in the Free State. He confirmed that he was in the beginning contacted by Teach SA and the School. He agreed that Teach SA is a Non- Governmental Organisation (NGO) and they worked with the Department of Education. He explained the process as follow: The Department of Education identified the School who had a post and then called to fill the position. Educators are called by Teach SA and introduced the person to the School and placed him there. The School then recommended the educator to the Department of Education, and the Department appointed the educator. He was recommended by the School Governing Body (SGB). He received no letter as he was called by the SGB to report at the School. The recommendation document was signed by the SGB and sent to the Department of Education in the Free State.
14. The Department was made aware via the completed PO20 form. He agreed that the form that was signed indicated on it that he was appointed on an ad hoc post, and he was paid from 10 June to 31 December 2020. He was invited to the meeting of the District when an invitation was sent to all schools and not personally to him. The invitation was for the post and he was in that post. The Director of the District was personally there and the applicant has a conversation with him and he acknowledged that the applicant was at the Springfontein Secondary School. It was put to him that the Department of Education informed him and the School that he was in access, and he responded by saying that the representative of the respondent is lying. He was not even aware that the School had access educators.
15. He was showed a document in the added bundle of the respondent “R” dated via a date stamp as 22 January 2021. It was the recommendation to the department for 2021 and it was not explained to the applicant by the Principal. Another PO20 document was stamped as 21 January 2020 and signed by the Principal on 21 January 2020. At the bottom of this document on page 8 of bundle “R”, it states that the School is overstaffed and the Director is request to grant an ad hoc post. This first PO20 for 2019 on pages 1-4 of bundle “A”, was never approved by the Department of Education, as documentation was needed from the applicant on two occasions. He stated that he and the Principal sent the required documentation with the original form and on request sent it twice thereafter. On page 9 of bundle “R” it can be seen that the Director of the District appointed the applicant in an ad hoc post from 10 June 2020. The ad hoc post was signed on 18 June 2020.
16. He disagreed when it was put to the applicant that the person who owed the applicant money from 13 January 2020 up to 9 June 2020, is the Principal and the SGB. He agreed that he was not the only Science teacher at the School in 2020. He was advised that he either voluntary teach at the School from January to June 2020, or he must ask the SGB to pay him. He provided two letters to the District and it was stamped on 07 July 2020. Other proof was only telephonically and he received an answer from the District. It was put to him that there was a response from the Acting CES directed to the Deputy Director Human Resources and the District Director, indicating that there is a list of schools where teachers were not paid from January to April 2020. The applicant’s name appears next to the School, and next to his name it states “qualification not submitted”. It was signed at the bottom of page 3 of bundle “R”, by PS Lepoko. Nowhere in this document has it stated that this response was addressed to the applicant.
17. He was told that the second last page (9) in the added bundle, indicates that the provision of posts were 13 in 2019 and 11 in 2020. This means there was minus two positions and that was the reason that there was no Teach SA post available to be filled. He stated that he was contacted to work at the School, and to be appointed by the Education Department of the Free State.
The witness of the applicant, KM Rigala, Principal at Springfontein Secondary School, after having been sworn in, testified as follows:
18. He testified that the staff establishment for 2020 was received in 2019. Teach SA post was available after the previous teacher was promoted. The SGB called Teach SA and the applicant was contacted by Teach SA. Upon his arrival in Springfontein he started to work as teacher on 13 January 2020. The PO20 was completed and signed by the applicant, the SGB and the Principal, and sent with all documentation to the Department of Education in the Free State for appointment. He was surprised in June 2020 when reasons were given for the non-appointment of the applicant and the appointment of the applicant on an ad hoc post from 10 June 2020. The reasons that was given was that the applicant did not qualify, but he was teaching the learners from 13 January 2020 to June 2020 in Physical Science for different classes.
19. The witness stated that the Principal and the SGB contacted the Department of Education to approve the post which they did not do until June 2020. The Department must pay the applicant for the period he worked and was not paid. They also contacted the District in July 2020 enquiring about the appointment and payment of the applicant.
20. Under cross-examination he confirmed that the Department of Education wanted the missing CV and qualifications of the applicant and it was resent on 20 March 2020. It was put to him since that date until June 2020 nobody attended School as nobody was working in South Africa. The witness responded that the applicant returned in May 2020 to the School as can be seen on his attendance registers in bundle “A”. He stated that the document that states that teachers were not paid at different Schools was sent to him in April or May 2020. He stated that Teach SA contact the District about the post. He and the SGB knew what to do and they got another teacher from Teach SA. Teach SA was introduced to the schools by the Department of Education.
21. He agreed that in October 2019 he was given the staff establishment for 2020 and the school was going to lose two posts. Although he was informed that they could not appoint as there was two educators in access, the special needs post and the Teach SA post was available for 2020. He was told that the special needs and Teach SA was not approved, and he disagreed with that, as he stated that the Department of Education said the number of positions available. He and the SGB decided which post to lose. The representative of the respondent differed with the witness and stated that the Department is specific which post is lost and 13 position became 11 in 2020, and the special needs and Teach SA positions were not approved. The witness differ from the representative and stated that 13 positions were approved in 2019 and 11 in 2020, but the special needs and Teach SA were still available to be filled.
22. The witness explained that the applicant was sent to the School by Teach SA. The necessary documentation was completed and sent to the Department of Education for appointment. The PO20 was signed by the witness and the SGB in January 2020. He resigned the same form on 22 January 2021 for further appointment of the applicant but he was not further appointed. The first PO20 was signed on 21 January 2020 and the appointment of the applicant was on 10 June 2020 on an ad hoc post. The purpose of the PO20 was that paperwork must be done and appointed at the Department of Education. They did not receive anything from the Department of Education that the request to appoint the applicant was accepted or rejected.
23. Under further cross-examination he confirmed that by telephonic conversations with the District Director, Director Human Resources and Thato he was told that the applicant was appointed. It is however clear from documentation that the applicant was appointed in June 2020 by the Department of Education. He was asked whether he allowed the applicant to work in the School from January to June 2020 without any appointment and he answered that the applicant was sent to the School by the Department of Education. He indeed received a document where the Department of Education circulate to Schools that they must stop appointing teachers without approval from the Department of Education, but it was sent late in 2020.
24. Under re-examination he confirmed that the District notified Teach SA to go ahead and the applicant was sent to the School.
Respondent’s evidence and argument
The witness of the respondent, Frans Kraalshoek, Deputy Director Human Resources, Gariep District, after having been sworn in, testified as follows:
25. He stated that for the applicant to be appointed the first step was to look at the Provisioning Post document on page 4 of bundle “R”. If such a post existed for a teacher from Teach SA for 2020, then first approval must be obtained from the District. It was clear that only 11 educators were approved for 2020. The School did not qualify to appoint the applicant as they were in access of two educators. Later it was approved in June 2020 by the District when the applicant was appointed from June to December 2020 on an ad hoc post. The final staff establishment for 2020 was confirmed by the Department of Education on 10 September 2019 as 11 educators with an access of educators as two. This was determined on the number of learners. All the posts were included in the 11 and it was communicated to the School.
26. According to his testimony, the School was not allowed to appoint the applicant when they qualified in 2020 for only 11 educators. The letter on pages 2 to 3 of bundle ”R” was written to him, request all outstanding information on teachers that were not paid from January 2020 to April 2020 at different schools in the Free State. It was then reported that the schools were in access of educators. He stated that the applicant worked at Springfontein Secondary School from January to June 2020 without proper approval and appointment. It is therefore the responsibility of the SGB, as the applicant was only appointed by the Department of Education as from June 2020 to December 2020 on an ad hoc post and paid accordingly. The policy is very clear that no teacher may assume duties without proper approval and appointment by the Department of Education.
27. He stated that the Department of Education in the Free State and Teach SA involvement was a special project after higher level engagements. It was approved in the Gariep District for Science teachers to be appointed and they received bursaries to obtain professional qualifications. It was consultation between the School and Teach SA to appoint the applicant and the Department was never involved in the original discussions. Therefore the SGB and the Principal is responsible to pay the salary of the applicant from January to June 2020.
28. Under cross-examination, he stated that the applicant was appointed without the approval of the Department of Education in 2020. There was a WhatsApp group for communication with the Principals Council. Various issues were discussed here and the School was informed about the non-appointment of the applicant. The School was informed that the applicant was appointed on an ad hoc post from 10 June 2020 to December 2020. He confirmed again that it was communicated to the schools that no teacher must assume duties without approval by the Department of Education. The appointment of the applicant was on the monthly control sheets and the Principal could verify his appointment on an ad hoc post.
Closing arguments
29. Only the applicant sent written closing arguments by 21 September 2021 as agreed on 14 September 2021. His submissions and arguments were perused and incorporated in the decisions made in the award.
Analysis of evidence and argument
30. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter. As the matter referred to the ELRC by the applicant relates to the non-payment of salary, the onus of proof rests upon the applicant for this claim to succeed.
31. The Panellist is expected to determine whether or not the respondent unlawfully failed to pay the applicant his salary, and whether the applicant was employed by the Education Department of the Free State during the period from 13 January 2020 to 9 June 2020. If I find that the applicant was employed by the respondent, I must decide whether the applicant must be paid his salary from 13 January 2020 up to 9 June 2020 to the amount of R18 185-12 per month, minus the normal and statutory deductions.
32. It is common cause that the applicant was recruited by Teach SA and sent to Springfontein Secondary School from 13 January 2020. It is further common cause that the applicant was employed and paid by the Department of Education in the Free State from 10 June 2020 up to 31 December 2020. It is also common cause that he was paid for the said period a salary of R18 128-12 per month, and he was an educator and teach Physical Science at the School.
33. It is the submission of the applicant that the Department of Education in the Free State enjoyed the services he rendered to it as a PL1 teacher at Springfontein Secondary School. The Department failed to pay him his salary from 13 January 2020 up to 9 June 2020. They also failed to properly communicate in writing what they are claiming, that he was not supposed to start working without an appointment letter. According to the applicant the officials of the Department of Education kept on promising that he would get his payment, of which they only kept their promise from 10 June 2020 to 31 December 2020, without an appointment letter
34. He further submits that in the 2019 provisional staff establishment for 2020, of the School there was a Teach SA post which he occupied teaching grade 8 to 10 learners in the School. He also attended all workshops organised by the District for both Natural Sciences and Physical Sciences. He produced a 100% pass in Physical Sciences for the School. The failure of the Department of Education to communicate to the School in writing while communicating internally in writing, makes the case lack evidence on his side, of which the Department is using it against the applicant. The Department of Education failed to communicate properly during the period 13 January 2020 to 9 June 2020. He was not paid and the period from 10 June 2020 to 31 December 2020, he was paid for.
35. A letter was written to the District Director on 9 July 2020 by the Principal of the School, as can be seen on page 2 of bundle “R”. It states that Mr WZ Mjwara persal number 28148428 was appointed in the TEACH SA post on 13 January 2013 with the assistance of the District and Teach SA Coordinator. All the relevant documents of the applicant were submitted to the district office on 17 January 2020. The District office responded by requesting the principal to submit the PO20 and stated the reason of the non-payment of the applicant as qualifications not submitted, although they were submitted in January 2020. The School then submitted the qualification of the applicant again. He was also made to sign the assumption of duty forms for the second time in June 2020 since he had already signed it in January 2020.
36. A PO20 document was stamped on 21 January 2020 and signed by the Principal and the SGB. At the bottom of this document on page 8 of bundle “R”, it states that the School is overstaffed and the Director is request to grant an ad hoc post. This first PO20 for 2019 on pages 1-4 of bundle “A”, was never approved by the Department as documentation was needed from the applicant on two occasions. On page 9 of bundle “R” it can be seen that the Director of the District appointed the applicant in an ad hoc post from 10 June 2020. The ad hoc post was signed on 18 June 2020.
37. The applicant disagreed when it was put to him that the person who owed the applicant money from 13 January 2020 up to 9 June 2020, is the Principal and the SGB. The Acting CES directed to the Deputy Director Human Resources and the District Director indicating that there is a list of schools where teachers were not paid from January to April 2020. The applicant’s name appears next to the School and next to his name it states “qualification not submitted”.
38. The process to be followed for the applicant to be appointed is that the first step was to look at the Provisioning Post document on page 4 of bundle “R”. If such a post existed for a teacher from Teach SA for 2020, then first approval must be obtained from the District. It was clear that only 11 educators was approved for 2020. The School did not qualify to appoint the applicant as they were in access of two educators. Later it was approved in June 2020 by the District when the applicant was appointed from June to December 2020 on an ad hoc post. The final staff establishment for 2020 was confirmed by the Department of Education on 10 September 2019 as 11 educators with an access of educators as two. This was determined on the number of learners. All the posts were included in the 11 and it was communicated to the School.
39. The witness of the applicant stated that the Principal and the SGB contacted the Department of Education to approve the post which they did not do until June 2020. The Department must pay the applicant for the period he worked and was not paid. They also contacted the District in July 2020 enquiring about the appointment and payment of the applicant.
40. The witness further confirmed that the Department wanted the missing CV and qualifications of the applicant and it was resent on 20 March 2020. The applicant returned in May 2020 to the School as can be seen on his attendance registers in bundle “A”. The document that states that teachers were not paid at different schools was sent to him in April or May 2020. He and the SGB knew what to do and they got another teacher from Teach SA. Teach SA was introduced to the schools by the Department of Education.
41. He agreed that in October 2019 he was given the staff establishment for 2020 and the school was going to lose two posts. Although he was informed that they could not appoint as there was two educators in access, the special needs post and the Teach SA post was available for 2020. He was told that the special needs and Teach SA was not approved, and he disagreed with this.
42. I find that he applicant assumed duties at Springfontein Secondary School on 13 January 2020, at behest of the SGB and Principal without formally appointed by the Department of Education in the Free State. The necessary documentation was completed but his appointment was not approved until 10 June 2020 on an ad hoc post up to 31 December 2020, and was paid for this period. The applicant argued that he was an employee of the Department of Education as he and the principal was told that by several officials of the Department of Education. The Principal provided him with the necessary PO20 forms and the SGB and he signed it with the Principal and the form with all his documentation was sent to the Department of Education.
43. From the is the testimony of the witness of the respondent it is clear that the applicant was not an employee of the Department of Education, as he was not appointed from 13 January 2020 to 9 June 2020 although he teach at the School as a Physical Science educator. His appointment was not approved due to the fact that some documentation was needed and based on the provisional establishment for 2020, the School was in access of two educators.
44. Based on the aforementioned, I find that on a balance of probabilities that the applicant has failed to successfully discharge the onus of proof that the respondent approved and appointed the applicant from 13 January 2020 up to 9 June 2020. Therefore the respondent not acted unlawfully in the non-payment of the applicant salary for the said period.
45. Please note that the ELRC has no jurisdiction over the SGB of the Springfontein Secondary School. If the applicant wants to obtain financial relief against the School Governing Body, it is recommended that he must sue the SGB in the civil courts.
46. In light of the above I make the following award.
AWARD
47. The applicant has failed to successfully discharge its onus in this matter to prove the respondent’s failure to pay the applicant a salary of R18 128-12 per month from 13 January 2020 to 9 June 2020, as the applicant was not approved and appointed during the said period, but only from 9 June 2020 up to 31 December 2020, on an ad hoc post by the Department of Education in the Free State.
48. As a result of the aforesaid, the matter brought under case number ELRC339-20/21FS is dismissed.
Signature:
Panelist: Gert van der Berg
Sector: Department of Education-Free State