ELRC644-20/21 EC
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ELRC760-20/21EC
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Award Date:
27 September 2021
Case No ELRC760-20/21EC
In the matter between
Ada L Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 15 September 2021
DATE OF AWARD: 27 September 2021
SUMMARY: Labour Relations Act 66 of 1995 – Alleged unfair dismissal in terms of Section 191 (5) (a) (iii) – Reason for dismissal not known.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for a Virtual Arbitration hearing in terms of Section 191 (5) (a) (iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended 26 May 2021). The Arbitration hearing was held on 15 September 2021 via Zoom.
2. The Applicant, L Ada, was present and was represented by Mr R Petersen from R Petersen and Associates.
3. The Respondent, the Department of Education - Eastern Cape, was represented by Mr E Hector from the Labour Relations Department.
4. The parties did not submit bundles of documents.
5. On the day the parties requested that written Closing Arguments be submitted. The parties agreed that the written Closing Arguments would be submitted by 22 September 2021.
6. On the day of the hearing the Applicant’s Representative logged out of the Zoom meeting before the final arrangements could be made for the Closing Arguments.
7. As the Panellist I was compelled to send an e-mail to the Applicant, informing the Applicant to make sure her Representative received the e-mail, as the e-mail specifically stated that the Closing Arguments must be submitted by close of business on 22 September 2021. The e-mail also stated that the Closing Arguments must be sent to the Council as well as myself (personal e-mail address included). (E-mail sent on 15 September 2021.)
8. The Applicant confirmed in an e-mail on the same day that she would inform her Representative accordingly.
9. On 23 September 2021 the Applicant’s Representative sent through his Closing Arguments to the Council at 12:56 pm, with the comment that they had struggled to send through the Closing Arguments the previous day and would also inform myself and the Respondent’s Representative accordingly.
10. No evidence was provided proving that they had made any attempt to forward the Closing Arguments to myself or the Council on 22 September 2021, even though the e-mail addresses for the Council, myself and the Respondent’s Representative were noted on the cover page of the Applicant’s submissions.
11. The Closing Arguments were only received at 12:56 pm on 23 September 2021 with no indication of any urgency to get their late submissions submitted for consideration and that after they even had my e-mail address to make arrangements.
ISSUES IN DISPUTE
12. I am required to determine whether or not the Respondent unfairly dismissed the Applicant on 2 February 2021.
BACKGROUND TO THE DISPUTE
13. The Applicant had allegedly applied for a position at Willowmore Secondary School. The position would initially have been a temporary position with the possibility of it becoming permanent. The Applicant was informed by a Mr H Lekas (Now retired), the Principle of Willomore Secondary School, to report for duty on 1 February 2021. The Applicant however was informed on 2 February 2021 by Mr Lekas that her appointment had not been approved.
14. The Applicant believes that she had been unfairly dismissed and seeks re-instatement/compensation.
SURVEY OF EVIDENCE AND ARGUMENT
15. The issue in dispute is whether or not the Respondent unfairly dismissed the Applicant on 2 February 2021.
16. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
17. After being sworn in the Applicant testified to the following after questions were put to her by her Representative:
- That she had previously been permanently employed by the Western Cape Department of Education in Prins Albert.
- That she had also worked in various positions on a temporary basis, the last being in Willowmore.
- That she had resigned from the permanent position in Prins Albert (Private reasons mentioned).
- That she had been informed by Lekas to apply for a position which she had done.
- That she and Lekas had communicated directly with each other.
- That she believed the appointment was in process after her communications with Lekas.
- That Lekas had told her to report on 1 February 2021 which she had done and had signed the attendance register.
- That on 2 February 2021 there was a meeting which she had attended and her name and 2 others were on the agenda as new appointments.
- That Lekas was still waiting for an answer from a Syfers concerning the signing off of her appointment.
- That Lekas had called her back at about 7:00pm on 2 February 2021 after receiving a response from Syfers as her appointment had not been accepted as she had previously resigned from the Department.
- That she had not received anything in writing for the non-appointment.
18. The Applicant confirmed the following during cross-questioning:
- That she had not received an Offer Letter, Appointment Letter or any response to her application.
- That she had received an Offer Letter in the Western Cape.
- That Lekas had dismissed her.
The Respondent’s Submissions
19. After being sworn in the Respondent’s witness Mr J Syfers – Circuit Manager (Baviaans Circuit), testified to the following after questions were put to him by the Respondent’s Representative:
- That there had been an intention to appoint the Applicant, however after checking on the system he had seen that she had previously resigned and therefore did not qualify.
- That there was a policy in place not to appoint resigned educators in the EC.
- That the Applicant had not been appointed according to his knowledge.
- That only the HoD had the necessary authority to appoint or dismiss employees.
- That no Offer Letter or Appointment Letter was given to the Applicant.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
20. Section 192 (2) (1) of the LRA clearly states that “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal”.
21. For that to take place the Applicant would first have to be appointed.
22. Chapter 3 of the Employment of Educators Act 76 of 1998 (the EEA) which deals with the APPOINTMENTS, PROMOTIONS AND TRANSFERS of Educators; addresses in paragraph (6) the Powers of employers, which states:
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator -
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial department of education shall be made by the Head of Department. *
(* Emphasis added)
23. It is common cause that the Applicant did not receive an Offer Letter or an Appointment Letter from the Respondent for either a temporary position or a permanent position.
24. It needs to be noted that the Applicant in her evidence-in chief specifically mentioned that Lekas was waiting for a Syfers to respond with regards to the signing off of her appointment. This implies she was aware of the fact that her appointment had not been finalised.
25. In this matter the Applicant has alleged that Lekas, by his communication with her and by informing her to report for duty, had confirmed her appointment.
26. The EEA and the Respondent’s witness have confirmed that a Principal at a school does not have the relevant authority to appoint a person at a school in any capacity.
27. It is trite that within the Public Service, appointments are made by an Executive Authority or duly appointed person. In this case it is the SG or the District Director. This principle has recently been reconfirmed in Zungu v Premier, Province of KwaZulu-Natal and Another (DA11/2015) [2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC); [2017] 9 BLLR 949 (LAC) (16 May 2017). (Although the judgment itself speaks more to an expectation).
28. The Applicant’s Representative has not proven that Lekas had these decision making powers or authority to appoint the Applicant, as alleged by the Applicant.
29. The Applicant’s Representative made much of the Respondent’s unfair treatment of the Applicant during the whole process. The matter before the Council however is one for dismissal and the Applicant has not been appointed either in a temporary or permanent capacity by the Respondent.
30. It needs to be stated that I am in no way condoning the treatment that the Applicant received from the Respondent, more specifically Lekas, by the outcome of this hearing.
31. Based on the evidence before me and on the balance of probability, it is my finding that the Applicant has failed to prove that she was dismissed by the Respondent on 2 February 2021. I therefore make the following award.
AWARD
32. The Applicant, L Ada, was not dismissed by the Respondent, Department of Education – Eastern Cape.
33. The Applicant, L Ada, is not entitled to any relief sought.
Panellist: AW Howden
ELRC
In the matter between
Ada L Applicant
and
Department of Education: Eastern Cape Respondent
ARBITRATOR: AW Howden
HEARD: 15 September 2021
DATE OF AWARD: 27 September 2021
SUMMARY: Labour Relations Act 66 of 1995 – Alleged unfair dismissal in terms of Section 191 (5) (a) (iii) – Reason for dismissal not known.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for a Virtual Arbitration hearing in terms of Section 191 (5) (a) (iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedure Annexure C (As amended 26 May 2021). The Arbitration hearing was held on 15 September 2021 via Zoom.
2. The Applicant, L Ada, was present and was represented by Mr R Petersen from R Petersen and Associates.
3. The Respondent, the Department of Education - Eastern Cape, was represented by Mr E Hector from the Labour Relations Department.
4. The parties did not submit bundles of documents.
5. On the day the parties requested that written Closing Arguments be submitted. The parties agreed that the written Closing Arguments would be submitted by 22 September 2021.
6. On the day of the hearing the Applicant’s Representative logged out of the Zoom meeting before the final arrangements could be made for the Closing Arguments.
7. As the Panellist I was compelled to send an e-mail to the Applicant, informing the Applicant to make sure her Representative received the e-mail, as the e-mail specifically stated that the Closing Arguments must be submitted by close of business on 22 September 2021. The e-mail also stated that the Closing Arguments must be sent to the Council as well as myself (personal e-mail address included). (E-mail sent on 15 September 2021.)
8. The Applicant confirmed in an e-mail on the same day that she would inform her Representative accordingly.
9. On 23 September 2021 the Applicant’s Representative sent through his Closing Arguments to the Council at 12:56 pm, with the comment that they had struggled to send through the Closing Arguments the previous day and would also inform myself and the Respondent’s Representative accordingly.
10. No evidence was provided proving that they had made any attempt to forward the Closing Arguments to myself or the Council on 22 September 2021, even though the e-mail addresses for the Council, myself and the Respondent’s Representative were noted on the cover page of the Applicant’s submissions.
11. The Closing Arguments were only received at 12:56 pm on 23 September 2021 with no indication of any urgency to get their late submissions submitted for consideration and that after they even had my e-mail address to make arrangements.
ISSUES IN DISPUTE
12. I am required to determine whether or not the Respondent unfairly dismissed the Applicant on 2 February 2021.
BACKGROUND TO THE DISPUTE
13. The Applicant had allegedly applied for a position at Willowmore Secondary School. The position would initially have been a temporary position with the possibility of it becoming permanent. The Applicant was informed by a Mr H Lekas (Now retired), the Principle of Willomore Secondary School, to report for duty on 1 February 2021. The Applicant however was informed on 2 February 2021 by Mr Lekas that her appointment had not been approved.
14. The Applicant believes that she had been unfairly dismissed and seeks re-instatement/compensation.
SURVEY OF EVIDENCE AND ARGUMENT
15. The issue in dispute is whether or not the Respondent unfairly dismissed the Applicant on 2 February 2021.
16. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicant’s Submissions
17. After being sworn in the Applicant testified to the following after questions were put to her by her Representative:
- That she had previously been permanently employed by the Western Cape Department of Education in Prins Albert.
- That she had also worked in various positions on a temporary basis, the last being in Willowmore.
- That she had resigned from the permanent position in Prins Albert (Private reasons mentioned).
- That she had been informed by Lekas to apply for a position which she had done.
- That she and Lekas had communicated directly with each other.
- That she believed the appointment was in process after her communications with Lekas.
- That Lekas had told her to report on 1 February 2021 which she had done and had signed the attendance register.
- That on 2 February 2021 there was a meeting which she had attended and her name and 2 others were on the agenda as new appointments.
- That Lekas was still waiting for an answer from a Syfers concerning the signing off of her appointment.
- That Lekas had called her back at about 7:00pm on 2 February 2021 after receiving a response from Syfers as her appointment had not been accepted as she had previously resigned from the Department.
- That she had not received anything in writing for the non-appointment.
18. The Applicant confirmed the following during cross-questioning:
- That she had not received an Offer Letter, Appointment Letter or any response to her application.
- That she had received an Offer Letter in the Western Cape.
- That Lekas had dismissed her.
The Respondent’s Submissions
19. After being sworn in the Respondent’s witness Mr J Syfers – Circuit Manager (Baviaans Circuit), testified to the following after questions were put to him by the Respondent’s Representative:
- That there had been an intention to appoint the Applicant, however after checking on the system he had seen that she had previously resigned and therefore did not qualify.
- That there was a policy in place not to appoint resigned educators in the EC.
- That the Applicant had not been appointed according to his knowledge.
- That only the HoD had the necessary authority to appoint or dismiss employees.
- That no Offer Letter or Appointment Letter was given to the Applicant.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
20. Section 192 (2) (1) of the LRA clearly states that “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal”.
21. For that to take place the Applicant would first have to be appointed.
22. Chapter 3 of the Employment of Educators Act 76 of 1998 (the EEA) which deals with the APPOINTMENTS, PROMOTIONS AND TRANSFERS of Educators; addresses in paragraph (6) the Powers of employers, which states:
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator -
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial department of education shall be made by the Head of Department. *
(* Emphasis added)
23. It is common cause that the Applicant did not receive an Offer Letter or an Appointment Letter from the Respondent for either a temporary position or a permanent position.
24. It needs to be noted that the Applicant in her evidence-in chief specifically mentioned that Lekas was waiting for a Syfers to respond with regards to the signing off of her appointment. This implies she was aware of the fact that her appointment had not been finalised.
25. In this matter the Applicant has alleged that Lekas, by his communication with her and by informing her to report for duty, had confirmed her appointment.
26. The EEA and the Respondent’s witness have confirmed that a Principal at a school does not have the relevant authority to appoint a person at a school in any capacity.
27. It is trite that within the Public Service, appointments are made by an Executive Authority or duly appointed person. In this case it is the SG or the District Director. This principle has recently been reconfirmed in Zungu v Premier, Province of KwaZulu-Natal and Another (DA11/2015) [2017] ZALAC 26; (2017) 38 ILJ 1644 (LAC); [2017] 9 BLLR 949 (LAC) (16 May 2017). (Although the judgment itself speaks more to an expectation).
28. The Applicant’s Representative has not proven that Lekas had these decision making powers or authority to appoint the Applicant, as alleged by the Applicant.
29. The Applicant’s Representative made much of the Respondent’s unfair treatment of the Applicant during the whole process. The matter before the Council however is one for dismissal and the Applicant has not been appointed either in a temporary or permanent capacity by the Respondent.
30. It needs to be stated that I am in no way condoning the treatment that the Applicant received from the Respondent, more specifically Lekas, by the outcome of this hearing.
31. Based on the evidence before me and on the balance of probability, it is my finding that the Applicant has failed to prove that she was dismissed by the Respondent on 2 February 2021. I therefore make the following award.
AWARD
32. The Applicant, L Ada, was not dismissed by the Respondent, Department of Education – Eastern Cape.
33. The Applicant, L Ada, is not entitled to any relief sought.
Panellist: AW Howden
ELRC