ELRC644-20/21 EC
Text
ELRC 36-20/21 FS
Award Date:
22 November 2021
Commissioner: ZoliswaTaba Case No.: ELRC 36-20/21 FS
Date of Award: 22 November 2021
In the ARBITRATION between:
Mofokeng, Tosa Timpane Joseph
(Applicant)
And
Free State Department of Education
(Respondent)
Applicant’s representative: S. Khoza
Respondent’s representative: M.Tsimile
Details of hearing and representation
1. The dispute was scheduled for arbitration in terms of clause 9.1 of the ELRC Constitution read in line with section 186 (1) of the LRA . The hearing was set down for 11 and 12 November 2021, to be heard at the Department of Education premises in Bloemfontein. The Applicant in this matter is Mr Tosa TJ Mofokeng and the Respondent is the Free State Department of Education. Ms S. Khosa, a legal representative from Phatshoane Henney Attorneys appeared for the Applicant party. Mr M. Tsimile, from the Respondent’s Human Resource section appeared for the Respondent party.
Issues to be decided
2. As per the pre -arbitration minutes, the issue to be decided is whether there was an employer and employee relationship between the Applicant and the Respondent. If it is found that there were no employment relations, the matter ends there. In an event employment relations are proved to have existed, dismissal is in dispute and the procedural and substantive fairness thereof is an issue to be decided.
Background to the issues
3. The matter was initially set down before Commissioner Khumalo in September 2020. The Respondent raised a point in limine on the jurisdiction of the ELRC to hear the matter. It is common cause that no written ruling was issued by the Commissioner on the point raised although the parties addressed the issue. From the Commissioner’s outcome report, it was indicated that the Commissioner would incorporate her ruling into the award.
4. It was not clear from that report whether she had pronounced herself on the issue raised or whether she had simply deferred it to be an issue to be decided in the arbitration. Due to the case having been on the roll for a long-time and after receiving confirmation from the ELRC’s case management that there was no ruling issued, the parties agreed to raise such an issue before me afresh as one of the issues to be decided in order to deal with the matter expeditiously.
5. The issue pertaining to whether evidence should be allowed in order to decide a jurisdictional point regarding the existence of an employment relationship was canvassed in the case of Denel (Pty) Ltd v Gerber . The court held at par:
[19] when a court, or, other tribunal is called upon to decide whether a person is another’s employee or not, it is enjoined to determine the true and real position. Accordingly, it ought not to decide such a matter exclusively on the basis of what the parties have chosen to say in their agreement for it might be convenient to both parties to leave out of the agreement some important and material matter or not to reflect the true position.
6. In line with the judgment above, evidence was led to allow parties to address the first issue of employer and employee relationship. Parties had prepared the pre-arbitration minutes and amendments were made on the day of arbitration to incorporate the issue which was previously raised in front of another Commissioner. At the onset, I must point out that this is a brief summary of the evidence which is relevant to the central issues in dispute and that I have taken all evidence submitted into account when making my decision.
Survey of evidence and arguments
The Applicant’s case
TTJ Mofokeng
7. He had a history of employment with the Respondent. He worked for the Respondent as an Educator from 2006 until 2014 at Lereko High School. For the first month he was remunerated by the SGB and from 26 February 2006, he received a letter from the Respondent appointing him as a substitute Educator, then a temporary Educator. In 2007, the Respondent advertised the position, he applied and he was appointed as a permanent Educator. He was dismissed by the Respondent in 2014 after he had proposed a romantic relationship to a leaner.
8. In 2020, he saw a job advertisement on the facebook page of the trade union, SADTU. The advertisement was made by LA Wesi High School looking for a Maths and Science Educator. He responded to the advert by contacting the SGB Chairperson through facebook. The SGB Chairperson told him to submit his curriculum vitae (“cv”) to the school and he did so. On 25 February 2021, he was interviewed at the school. Mr Ponase, the head of the department of the school informed him that he had passed the interview.
9. The Principal, Ms Adegbola told him that the Respondent will only start paying him from 01 April 2020 but asked him to start working as soon as possible as the school needed a grade 12 Educator and that for the period prior to 01 April, the school would be the one paying him. The Principal issued him with a z83 form and z56 form to complete so they could be taken to the Respondent together.
10. He resumed work at the school on 28 February 2020 and submitted the forms which were given to him. the SGB Chairperson informed him that the position which was advertised was a permanent post/ departmental post. He was not informed that the post was an SGB post. He understood completing the z83 form to mean that the post was a departmental post as such forms were not completed for SGB posts. He had indicated on the z83 that he was previously dismissed from employment.
11. He worked up to 23 March 2021 and stopped due to the lockdown issue. The SGB paid the February and March salary later in June 2020. He was also given a form, PO20 by the school HOD. The PO20 was a recommendation from the SGB to the Respondent for the appointment. On 24 March 2020, he had completed all forms given to him and submitted his cv to be sent to the Respondent.
12. On 04 May 2020, the Principal contacted him and asked him to resubmit the z56 form. On 05 May, the principal sent him a WhatsApp message informing him that his post was approved. From the WhatsApp conversation, it was his view that since the post was approved, his PO20 could be processed.
13. On 13 May 2020, the Principal informed him that due to the previous dismissal, the Respondent could not process his appointment as he failed to disclose that he was previously dismissed by the Respondent. He informed the Principal that he did indicate on his z83 that he was dismissed and that he was never asked about the details of his dismissal. What the Principal had asked him was his whereabouts after he left the service, hence his response was that he was busy with his taxi business. The Principal informed him that she had to consult the SGB on the issue and would get back to him. The SGB Chairperson also contacted him over the issue of his previous dismissal.
14. On 19 May, the position was advertised as a Maths only post. He became aware of the advert on 26 May 2020. He asked the SGB Chairperson about the advert as he was still waiting for their outcome. The Chairperson informed him that the Principal would respond to him.
15. On 01 June 2020, the Principal called him and informed him that a letter was emailed to him on 31 May 2020 informing him that his application could not be processed to work for the Respondent due to his unemployable status. The letter received was proof that he would not be working for the school. Had it not been for the Principal not checking the z83, he would have been appointed in the position. He was employed by the Respondent as the Principal had explained that he had to start working as soon as possible at the school.
16. During cross examination, the Applicant conceded that he never received an appointment letter from the Respondent appointing him in the position. There was no communication between him and the Respondent from February 2020 till the date of the alleged dismissal. He did not receive any appointment letter like he did when the Respondent employed him in 2007.
17. He confirmed that the letters on page 75(response to the Applicant’s request for re- employment -2019), page 79 (response to the dismissal appeal of 2014), and page 82 (dismissal letter of 2014) were letters from the Respondent and were different from the letter on page 83 (letter from the Principal and the SGB Chairperson). The three letters had the letter head of the Respondent and were signed by the MEC and the HOD and the letter on page 83 was only done by the Principal and SGB Chairperson.
18. The Applicant confirmed that the PO20 form was a recommendation form not an appointment letter. The letter issued by the school was an indication that the recommendation could not continue. He further confirmed that the advert was on the SADTU facebook page advertised by the SGB Chairperson not advertised by the department/Respondent. He maintained that the Principal informed him that his post was approved. He conceded that the advert of 19 May done by the Respondent was only for Maths not for Maths and Science as per the advert he had. He disputed that he was asked about the reason for leaving the Respondent’s employment and maintained that he was asked what he was busy with all along.
The Respondent’s Case
1st witness: MC Adegbola (“the Principal”)
19. She was the Principal at LA Wesi High School. She became a Principal on 01 January 2020. The Educator who had been teaching Maths in grade 12 had been transferred to another school. The school was in need of an educator to teach the learners. Without approval from the Respondent, the school advertised the post on social media. The school held interviews for three candidates. It was clear after the interview that the Applicant was the best performer and the panel immediately agreed to have him helping the school with the grade 12s.
20. He asked the Applicant why he left employment in 2014 as she saw from the cv that he was a good educator. The Applicant’s response was that he left to pursue his business interest. After the interview, she gave the Applicant the z83 form to complete and attach his cv so that a recommendation could be made to the Respondent for his appointment. Since the school needed assistance with the grade 12s, the Applicant was asked to start work at the school as soon as possible. For the period the Respondent was sorting itself out, the SGB would be remunerating the Applicant. The school did not have funds to continue to pay the Applicant and she had been continuously asking the Respondent how far the process of appointment was.
21. She was informed by the Respondent’s official that the post was approved and that the forms of the Applicant could be processed. After two days, the official called and informed her that she did not inform the Respondent that the Applicant had been dismissed and that based on that dismissal, the school recommendation could not be entertained as the Applicant was unemployable. The Applicant had been dismissed for misconduct relating to sexual misconduct against a learner. She contacted the Applicant and asked why he had deceived the school as she had asked the Applicant why he left his work and his response was misleading as he said he was pursuing his taxi business.
22. There was no appointment made by the Respondent, the school merely recommended the Applicant without having knowledge of the previous dismissal. She had informed the Applicant that he was unemployable weeks before issuing him with the letter dated 31 May 2020. He issued the letter after being advised to put such in writing as the Applicant kept on calling her to talk about the same issue. The reason for the Applicant’s dismissal in 2014 could not have been picked up by the school as the school did not have the system the Respondent used in doing background checks.
23. The approval of a post meant that anybody suitable could be put in that post but it did not mean that the post belonged to a specific person. Principals had tendencies of doing things outside the normal procedure by recruiting educators when they see that they needed such assistance. She never received approval from the Respondent to advertise the position but did that to impress his employer. She was a newly appointed Principal and wanted to impress her superiors hence she advertised the position. The grade 12s did not have a teacher and the school performance was measured on the grade 12s performance more so maths, hence she went ahead and recruited.
24. During cross examination, she confirmed that the post the school advertised was an existing departmental post but maintained that the Respondent did not give her a go ahead to advertise. The correct procedure for filing departmental post was for the Respondent to be the one to advertise. The Respondent would consult the school to check the specific needs of that posts then advertise itself.
25. The Respondent would deal with the long list and defer the issue of shortlisting to the school. Job applicants would send their applications to the Respondent not directly to the school. The school would then hold interviews and the SGB recommends the candidates to the Respondent. The Respondent would then make an appointment from the recommendations made. In this case, no appointment was made by the Respondent therefore the SGB could not proceed with its recommendation due to the unemployability of the Applicant.
26. She maintained that after looking through his cv, s he asked the Applicant why he left his job and the response was that he was pursuing his businesses. She maintained that she did not look at the z83 when it was submitted as she was excited to have an Educator who was as brilliant as the Applicant. The Applicant even explained to her that the reason he did not disclose was because his phycologist had advised him to leave his past in the past.
27. The recommendation was based on the cv and the performance at the interview. She confirmed that had she looked at the z83 she would have seen that the Applicant had indicated that he was dismissed on the form. She confirmed that an SGB post gets advertised by the SGB and the successful person was remunerated by the SGB. She maintained that the Applicant was on an SGB post for February 2020 and March 2020 hence he was paid by the SGB as no appointment was made by the Respondent.
28. She maintained that the post was re-advertised after she had informed the Applicant about the feedback from the Respondent. She maintained that there had been an employment relationship between the Applicant and the School but that there had been no such relationship with the Respondent. She maintained that if the correct procedure for filling departmental post was followed, the Applicant would not have made it passed the long list due to what he was dismissed for.
2nd Winess: T.N Rakometse (“the SGB Chairperson”)
29. He was the SGB Chairperson in 2020. He was mandated by the SGB to advertise the position of Maths and Physics on social networks. After the Applicant responded to the advert, he started communicating with the Applicant on facebook and advised him to take his cv to the school. His role was limited to advertising the post and that was where he stopped. He was not part of the interview panel. The position was a departmental post with a possibility that it could be permanent.
30. The SGB merely recommended the Applicant and remunerated him while waiting for the Respondent to decide on the recommendation. The SGB paid the Applicant for that period of waiting as there was no appointment made by the Respondent yet. For the period the SGB paid the Applicant, he was temporarily working for the SGB. No appointment was made by the Respondent due to the Applicant’s history. Had he been aware of the reason for the dismissal of the Applicant, he would not have supported the recommendation of the Applicant for employment.
31. During cross examination, he confirmed that the post was a departmental post and said that the Principal had informed them that she received a go ahead from the Respondent to advertise the post. He did not personally go to the Respondent for such a confirmation only heard that from the Principal.
The Applicant’s closing arguments
32. It was the Applicant’s argument that the post applied for, interviewed, offered and accepted was a departmental post and never at one stage could it have been an SGB post simply because the Respondent had to sort out its administrative issues. There was no vacant SGB post the Applicant could have possibly occupied. In supporting its case, the Applicant party made reference to decided cases.
33. The Eskom Holdings Lt v Fipaza & Others was clear that once an offer of employment had been accepted, that accepted offer attains the status of an employment contract. The Applicant accepted the offer therefore employment came into place.
34. In Wyeth SA Pty Lt v Manqele & Others , the court stated that a dismissal occurred when an employer had terminated a contract of employment with or without notice, there was no basis for assuming that the contract referred to in section 186(1)(a) of the LRA was a contract in terms of which an employee was actually working for an employer. The failure to follow its own procedures in the recruitment of candidates did not mean that the appointment was invalid.
35. In Khumalo and Another v Member of Executive Council for Education: Kwazulu natal an appointment or promotion remained valid until and unless a court of law declared the action unlawful. It was the Applicant’s argument that the fact that there was no appointment letter did not mean that there had been no employment relations. An appointment letter was merely a document containing a record of a transaction which had already been agreed to by the contracting parties.
36. The Applicant had stated in his z83 form that he was dismissed and had not misrepresented himself, therefore the dismissal was not in accordance with a fair reason. Furthermore, he was not given an opportunity to make representations as to why the offer of employment should be withdrawn, he was simply informed that he was unemployable, therefore dismissal was procedurally unfair. The relief sought was for retrospective reinstatement.
The Respondent’s arguments
37. The Applicant was once employed by the Respondent and was aware of the procedure the Respondent followed when appointing an Educator. The post was not advertised by the Respondent but by the School. The school was not instructed by the Respondent to advertise. The z83 form was an application form not an assumption of duty letter. The PO20 was a recommendation letter which the Applicant confirmed that he had completed meaning that he was aware that he was being recommended for a post not being appointed.
38. The Applicant was aware that he was not an employee of the Respondent but a job applicant. The Principal confirmed that she did not follow the procedure as she wanted to impress her superiors. The Eskom matter was irrelevant as in that case there was an offer and an acceptance but in this matter no offer of employment was made by the Respondent to the Applicant.
39. The z83 was not in front of the panel when the Principal asked why the Applicant left employment. Both the Respondent’s witnesses testified that had they knew about the Applicant’s dismissal, they would not have made the recommendation. The Head of the Department (“HoD”) was the one to appoint Educators and no appointment was done by the HoD.
40. The prayer was for the matter to be dismissed as there had been no employment relations between the Applicant and the Respondent. Furthermore, the Respondent was in a sector where the community/SGB was important or a stakeholder and could not have in its employ someone which the community in a form of the SGB said they could not trust to be in the presence of their children.
Analysis of evidence and argument
41. The first issue I am called to decide is whether the Applicant was an employee of the Respondent on 31 May 2020 when he left the school pursuant to what he contends was a dismissal but what the Respondent contends was not a dismissal as there was no employment relationship between them.
42. The Applicant contends that he was the employee of the Respondent while the Respondent contends that he was the employee of the school as he was recruited and remunerated by the school. If it is established that the Applicant was indeed an employee of the Respondent, then I need to proceed and deal with whether there was a dismissal and whether such dismissal if it exists was procedurally and substantively fair. On the other hand, if it is established that he was not an employee of the Respondent, then the matter would be dismissed for the lack of jurisdiction.
43. It is settled law that the LRA only applies to the relationship between employer and employee. It follows therefore that the question whether a person is an employee of another or not, is a jurisdictional issue. Therefore, it is important to first make a determination as to whether there was an employer and employee relationship between the parties as this goes to the jurisdiction of the ELRC to deal with the merits of the case.
Was the Applicant the employee of the Respondent?
44. The Respondent’s contention is that the Applicant was not the employee of the Respondent because he was not recruited and was not appointed by the Respondent.
45. Section 213 of the LRA defines an employee as :-
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration;
(b) any other person who in any manner assists in carrying on or conducting the business of an employer…”
46. It therefore becomes important to comment on the definition above and decide whether it includes a person in the position of the Applicant.
47. In Wyeth SA (Pty)Ltd v Manqele & others ), the court interpreted the definition in question. In coming to its decision, the Court had regard to the Constitutional right entrenched in section 23. It held that section 3(B) of the LRA required the Court to interpret the provisions of the LRA in compliance with the Constitution in order to give the full effect to the legislative purpose to ensure the protection, promotion and fulfilment of constitutional rights. The court had regard to the position of a person who might have resigned from his former employment on the basis of him having concluded a contract of employment. Such a person might find himself in a worse position than an applicant for a position advertised.
48. The court held that the definition of employee in section 213 of the LRA can be read to include a person or persons who has or have concluded a contract of employment of which the commencement of employment is deferred to a future date or dates.
49. In this case, the Applicant’s contention is that employment relations existed on 28 February 2020 and that the payment of salary by the Respondent was deferred to 01 April 2020. Although this is the contention, the Applicant did not provide any proof that the department/Respondent had agreed to pay the Applicant remuneration from 01 April 2020.
50. It is common cause that there was no written employment contract concluded between the Applicant and the Respondent and that there was no appointment letter issued to the Applicant by the Respondent. Furthermore, it is common cause that the advert which the Applicant responded to was not advertised by the Respondent but that it was advertised by the school itself. It is common cause that the Applicant indeed provided his services to the school in February and in March 2020 and he was remunerated by the school for those services rendered.
51. The Principal testified that she did not get permission from the Respondent to advertise the position which was a departmental position. Her testimony about the procedure followed when the Respondent recruits was not disputed. Her testimony was that for departmental posts, the Respondent was the one to advertise and the candidates would make their applications to the Respondent and not directly to the school. The testimony of the SGB Chairperson that the Principal told the SGB that she received permission from the Respondent to go on recruitment process was hearsay and is not probable as the Principal confirmed that she did not get any approval to advertise the position.
52. It is therefore clear that at the time the Applicant was recruited, the Respondent had not embarked on a recruitment process but the school did that at its own accord. Furthermore, although it has always been the Applicant’s contention that he was employed by the Respondent on 28 February 2020, he conceded during cross examination that for the duration of his alleged employment which is from February 2020 up until the date of the alleged dismissal, there had been no contact or communication between him and the Respondent.
53. The Applicant conceded that he was previously employed by the Respondent and explained the process followed when he ended up being the employee of the Respondent. The first month of his employment in 2006 was remunerated by the SGB, similarly in February and March 2020 he was remunerated by the SGB. He never contended that he was an employee of the Respondent in 2006 when he was remunerated by the SGB.
54. It is clear from the Principal’s testimony that the school, without the permission from the Respondent interviewed and allowed the Applicant to resume duties at the school. If permission was granted by the Respondent that the Applicant be appointed at the school, then the SGB would not have taken it upon itself to remunerate the Applicant for services rendered. Had the appointment been made by the Respondent, the Respondent would have been liable for payment and in an event the salary was not paid, the Applicant would have approached the ELRC in terms of clause 69 of the ELRC Constitution to enforce his right for salary payment. This was not done as it is probable that the Applicant was aware that he was not yet appointed by the Respondent.
55. Furthermore, the Applicant conceded that he completed the z83 and the PO20 forms after the interview with the school when he resumed work at the school. It was not disputed that the z83 form was a job application form and that the PO20 served as a recommendation form. Therefore, it is clear that by the date the Applicant resumed duties, he was still in a process of applying for a departmental post and that the only process that had taken place was the SGB recommending him for the departmental post but no appointment had been made by the Respondent.
56. It must be noted that in the public education sector, recruitment of departmental educators is done in accordance with chapter 3 of the EEA read in line with the PAM and the ELRC Collective agreements regarding appointments. One cannot speak of educators appointments in the public sector without making reference to the very same legislation which was enacted for the purpose of appointments in the public education sector.
57. Section 6(1)(b) of the EEA provides that “ subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator- in the service of a provincial Department of Basic Education shall be made by the Head of Department (‘HoD’)”. ( my emphasis)
58. In terms of section 6(3)(a), “any appointment,…to any post on the educators establishment of a public school may only be made on the recommendation of the governing body of the public school and, … or that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.
59. In terms of section 6(3)(d), the HoD when considering the recommendation must before making an appointment ensure that the governing body has met the requirements.
60. It is therefore clear that in order for an educator to argue that he or she was an employee of the Respondent, it ought to be proven that an appointment was at least made by the HoD.
61. In this case, no proof was submitted that the Applicant was appointed by the HoD or that the HoD had delegated his/her powers to any other person to do such an appointment and bind the Respondent. The case of Khumalo(supra) and the Eskom case do not find place in this matter as in both cases there had been an appointment made by the department and there was acceptance thereof. In this case, there is no proof that the department/HoD made such an appointment.
62. The fact that the post in which the school placed the Applicant on, was a departmental post does not prove that the appointment was made by the HoD and that the Applicant therefore became the employee of the Respondent.
63. In terms of the EEA, an Educator in the provincial department of basic education is appointed by the HoD and not by the school itself. When it comes to departmental post, the school/ the SGB is only limited to making a recommendation of the candidates to the HoD and does not make appointments on behalf of the HoD.
64. It is therefore clear that regardless of whether or not the correct procedure was followed by the school in recruiting the Applicant, what the SGB did was merely to recommend the Applicant to the Respondent and the result of such recommendation did not end up in an appointment.
65. What is clear from the evidence before me is that indeed there was a relationship which came to existence between the school and the Applicant but the Applicant failed to provide any proof that there was a relationship which came to existence between him and the Respondent.
66. In Phera v ELRC and others , it was held that where an employee assumes duties without written permission from the Department, such assumption of duties would not establish an employment relationship per se.
67. The principle in the Phera case can reasonably be applied to this matter as the Applicant was not given permission by the Respondent to assume any duties. Such permission was given by the school itself without approval from the HoD/ the Respondent. It is clear from the evidence before me that when the Applicant assumed duties on 28 February 2020, the department did not give permission for him to do so. No proof was submitted that the department did so. What is evident is that when he resumed duties, he submitted a z83 form which is an application form for employment.
68. Therefore, without the HoD appointing the Applicant in the post, there cannot be an employer and employee relationship that existed between the Applicant and the Respondent. Since the Applicant left the service of the Respondent in 2014, it could be argued that he was still at the stage of a “job applicant” as he was not working for the Respondent at the time the recommendation was made. As a result, the Respondent could not have dismissed an employee who was not in its employment.
69. In Mthashana FET College v ELRC & Others , the Labour Appeal Court held at par
[15] “… the persons over whom the ELRC has jurisdiction appear in clause 6 of its Constitution, Collective agreement No:1 of 2006 as follows:
‘6. Constitutional scope
The registered scope of the Council extends to the State in its capacity as employer
and those employees in respect of which the Employment of Educators Act, 1998,
applies.’
70. The ELRC has jurisdiction to deal with disputes of educators employed in terms of the EEA. There is no proof before me that the Applicant was indeed employed by the Respondent and that such employment was in terms of the EEA.
71. Therefore, by failing to establish the employment relations between the Applicant and the Respondent, the matter cannot be considered under the auspices of the ELRC.
Award
72. The Applicant TTJ Mofokeng failed to prove the existence of employment relations between himself and the Respondent, Free State Department of Education.
73. The ELRC has no jurisdiction to deal with the merits of the case.
74. The case is dismissed.
Zoliswa Taba
ELRC Panellist
Date of Award: 22 November 2021
In the ARBITRATION between:
Mofokeng, Tosa Timpane Joseph
(Applicant)
And
Free State Department of Education
(Respondent)
Applicant’s representative: S. Khoza
Respondent’s representative: M.Tsimile
Details of hearing and representation
1. The dispute was scheduled for arbitration in terms of clause 9.1 of the ELRC Constitution read in line with section 186 (1) of the LRA . The hearing was set down for 11 and 12 November 2021, to be heard at the Department of Education premises in Bloemfontein. The Applicant in this matter is Mr Tosa TJ Mofokeng and the Respondent is the Free State Department of Education. Ms S. Khosa, a legal representative from Phatshoane Henney Attorneys appeared for the Applicant party. Mr M. Tsimile, from the Respondent’s Human Resource section appeared for the Respondent party.
Issues to be decided
2. As per the pre -arbitration minutes, the issue to be decided is whether there was an employer and employee relationship between the Applicant and the Respondent. If it is found that there were no employment relations, the matter ends there. In an event employment relations are proved to have existed, dismissal is in dispute and the procedural and substantive fairness thereof is an issue to be decided.
Background to the issues
3. The matter was initially set down before Commissioner Khumalo in September 2020. The Respondent raised a point in limine on the jurisdiction of the ELRC to hear the matter. It is common cause that no written ruling was issued by the Commissioner on the point raised although the parties addressed the issue. From the Commissioner’s outcome report, it was indicated that the Commissioner would incorporate her ruling into the award.
4. It was not clear from that report whether she had pronounced herself on the issue raised or whether she had simply deferred it to be an issue to be decided in the arbitration. Due to the case having been on the roll for a long-time and after receiving confirmation from the ELRC’s case management that there was no ruling issued, the parties agreed to raise such an issue before me afresh as one of the issues to be decided in order to deal with the matter expeditiously.
5. The issue pertaining to whether evidence should be allowed in order to decide a jurisdictional point regarding the existence of an employment relationship was canvassed in the case of Denel (Pty) Ltd v Gerber . The court held at par:
[19] when a court, or, other tribunal is called upon to decide whether a person is another’s employee or not, it is enjoined to determine the true and real position. Accordingly, it ought not to decide such a matter exclusively on the basis of what the parties have chosen to say in their agreement for it might be convenient to both parties to leave out of the agreement some important and material matter or not to reflect the true position.
6. In line with the judgment above, evidence was led to allow parties to address the first issue of employer and employee relationship. Parties had prepared the pre-arbitration minutes and amendments were made on the day of arbitration to incorporate the issue which was previously raised in front of another Commissioner. At the onset, I must point out that this is a brief summary of the evidence which is relevant to the central issues in dispute and that I have taken all evidence submitted into account when making my decision.
Survey of evidence and arguments
The Applicant’s case
TTJ Mofokeng
7. He had a history of employment with the Respondent. He worked for the Respondent as an Educator from 2006 until 2014 at Lereko High School. For the first month he was remunerated by the SGB and from 26 February 2006, he received a letter from the Respondent appointing him as a substitute Educator, then a temporary Educator. In 2007, the Respondent advertised the position, he applied and he was appointed as a permanent Educator. He was dismissed by the Respondent in 2014 after he had proposed a romantic relationship to a leaner.
8. In 2020, he saw a job advertisement on the facebook page of the trade union, SADTU. The advertisement was made by LA Wesi High School looking for a Maths and Science Educator. He responded to the advert by contacting the SGB Chairperson through facebook. The SGB Chairperson told him to submit his curriculum vitae (“cv”) to the school and he did so. On 25 February 2021, he was interviewed at the school. Mr Ponase, the head of the department of the school informed him that he had passed the interview.
9. The Principal, Ms Adegbola told him that the Respondent will only start paying him from 01 April 2020 but asked him to start working as soon as possible as the school needed a grade 12 Educator and that for the period prior to 01 April, the school would be the one paying him. The Principal issued him with a z83 form and z56 form to complete so they could be taken to the Respondent together.
10. He resumed work at the school on 28 February 2020 and submitted the forms which were given to him. the SGB Chairperson informed him that the position which was advertised was a permanent post/ departmental post. He was not informed that the post was an SGB post. He understood completing the z83 form to mean that the post was a departmental post as such forms were not completed for SGB posts. He had indicated on the z83 that he was previously dismissed from employment.
11. He worked up to 23 March 2021 and stopped due to the lockdown issue. The SGB paid the February and March salary later in June 2020. He was also given a form, PO20 by the school HOD. The PO20 was a recommendation from the SGB to the Respondent for the appointment. On 24 March 2020, he had completed all forms given to him and submitted his cv to be sent to the Respondent.
12. On 04 May 2020, the Principal contacted him and asked him to resubmit the z56 form. On 05 May, the principal sent him a WhatsApp message informing him that his post was approved. From the WhatsApp conversation, it was his view that since the post was approved, his PO20 could be processed.
13. On 13 May 2020, the Principal informed him that due to the previous dismissal, the Respondent could not process his appointment as he failed to disclose that he was previously dismissed by the Respondent. He informed the Principal that he did indicate on his z83 that he was dismissed and that he was never asked about the details of his dismissal. What the Principal had asked him was his whereabouts after he left the service, hence his response was that he was busy with his taxi business. The Principal informed him that she had to consult the SGB on the issue and would get back to him. The SGB Chairperson also contacted him over the issue of his previous dismissal.
14. On 19 May, the position was advertised as a Maths only post. He became aware of the advert on 26 May 2020. He asked the SGB Chairperson about the advert as he was still waiting for their outcome. The Chairperson informed him that the Principal would respond to him.
15. On 01 June 2020, the Principal called him and informed him that a letter was emailed to him on 31 May 2020 informing him that his application could not be processed to work for the Respondent due to his unemployable status. The letter received was proof that he would not be working for the school. Had it not been for the Principal not checking the z83, he would have been appointed in the position. He was employed by the Respondent as the Principal had explained that he had to start working as soon as possible at the school.
16. During cross examination, the Applicant conceded that he never received an appointment letter from the Respondent appointing him in the position. There was no communication between him and the Respondent from February 2020 till the date of the alleged dismissal. He did not receive any appointment letter like he did when the Respondent employed him in 2007.
17. He confirmed that the letters on page 75(response to the Applicant’s request for re- employment -2019), page 79 (response to the dismissal appeal of 2014), and page 82 (dismissal letter of 2014) were letters from the Respondent and were different from the letter on page 83 (letter from the Principal and the SGB Chairperson). The three letters had the letter head of the Respondent and were signed by the MEC and the HOD and the letter on page 83 was only done by the Principal and SGB Chairperson.
18. The Applicant confirmed that the PO20 form was a recommendation form not an appointment letter. The letter issued by the school was an indication that the recommendation could not continue. He further confirmed that the advert was on the SADTU facebook page advertised by the SGB Chairperson not advertised by the department/Respondent. He maintained that the Principal informed him that his post was approved. He conceded that the advert of 19 May done by the Respondent was only for Maths not for Maths and Science as per the advert he had. He disputed that he was asked about the reason for leaving the Respondent’s employment and maintained that he was asked what he was busy with all along.
The Respondent’s Case
1st witness: MC Adegbola (“the Principal”)
19. She was the Principal at LA Wesi High School. She became a Principal on 01 January 2020. The Educator who had been teaching Maths in grade 12 had been transferred to another school. The school was in need of an educator to teach the learners. Without approval from the Respondent, the school advertised the post on social media. The school held interviews for three candidates. It was clear after the interview that the Applicant was the best performer and the panel immediately agreed to have him helping the school with the grade 12s.
20. He asked the Applicant why he left employment in 2014 as she saw from the cv that he was a good educator. The Applicant’s response was that he left to pursue his business interest. After the interview, she gave the Applicant the z83 form to complete and attach his cv so that a recommendation could be made to the Respondent for his appointment. Since the school needed assistance with the grade 12s, the Applicant was asked to start work at the school as soon as possible. For the period the Respondent was sorting itself out, the SGB would be remunerating the Applicant. The school did not have funds to continue to pay the Applicant and she had been continuously asking the Respondent how far the process of appointment was.
21. She was informed by the Respondent’s official that the post was approved and that the forms of the Applicant could be processed. After two days, the official called and informed her that she did not inform the Respondent that the Applicant had been dismissed and that based on that dismissal, the school recommendation could not be entertained as the Applicant was unemployable. The Applicant had been dismissed for misconduct relating to sexual misconduct against a learner. She contacted the Applicant and asked why he had deceived the school as she had asked the Applicant why he left his work and his response was misleading as he said he was pursuing his taxi business.
22. There was no appointment made by the Respondent, the school merely recommended the Applicant without having knowledge of the previous dismissal. She had informed the Applicant that he was unemployable weeks before issuing him with the letter dated 31 May 2020. He issued the letter after being advised to put such in writing as the Applicant kept on calling her to talk about the same issue. The reason for the Applicant’s dismissal in 2014 could not have been picked up by the school as the school did not have the system the Respondent used in doing background checks.
23. The approval of a post meant that anybody suitable could be put in that post but it did not mean that the post belonged to a specific person. Principals had tendencies of doing things outside the normal procedure by recruiting educators when they see that they needed such assistance. She never received approval from the Respondent to advertise the position but did that to impress his employer. She was a newly appointed Principal and wanted to impress her superiors hence she advertised the position. The grade 12s did not have a teacher and the school performance was measured on the grade 12s performance more so maths, hence she went ahead and recruited.
24. During cross examination, she confirmed that the post the school advertised was an existing departmental post but maintained that the Respondent did not give her a go ahead to advertise. The correct procedure for filing departmental post was for the Respondent to be the one to advertise. The Respondent would consult the school to check the specific needs of that posts then advertise itself.
25. The Respondent would deal with the long list and defer the issue of shortlisting to the school. Job applicants would send their applications to the Respondent not directly to the school. The school would then hold interviews and the SGB recommends the candidates to the Respondent. The Respondent would then make an appointment from the recommendations made. In this case, no appointment was made by the Respondent therefore the SGB could not proceed with its recommendation due to the unemployability of the Applicant.
26. She maintained that after looking through his cv, s he asked the Applicant why he left his job and the response was that he was pursuing his businesses. She maintained that she did not look at the z83 when it was submitted as she was excited to have an Educator who was as brilliant as the Applicant. The Applicant even explained to her that the reason he did not disclose was because his phycologist had advised him to leave his past in the past.
27. The recommendation was based on the cv and the performance at the interview. She confirmed that had she looked at the z83 she would have seen that the Applicant had indicated that he was dismissed on the form. She confirmed that an SGB post gets advertised by the SGB and the successful person was remunerated by the SGB. She maintained that the Applicant was on an SGB post for February 2020 and March 2020 hence he was paid by the SGB as no appointment was made by the Respondent.
28. She maintained that the post was re-advertised after she had informed the Applicant about the feedback from the Respondent. She maintained that there had been an employment relationship between the Applicant and the School but that there had been no such relationship with the Respondent. She maintained that if the correct procedure for filling departmental post was followed, the Applicant would not have made it passed the long list due to what he was dismissed for.
2nd Winess: T.N Rakometse (“the SGB Chairperson”)
29. He was the SGB Chairperson in 2020. He was mandated by the SGB to advertise the position of Maths and Physics on social networks. After the Applicant responded to the advert, he started communicating with the Applicant on facebook and advised him to take his cv to the school. His role was limited to advertising the post and that was where he stopped. He was not part of the interview panel. The position was a departmental post with a possibility that it could be permanent.
30. The SGB merely recommended the Applicant and remunerated him while waiting for the Respondent to decide on the recommendation. The SGB paid the Applicant for that period of waiting as there was no appointment made by the Respondent yet. For the period the SGB paid the Applicant, he was temporarily working for the SGB. No appointment was made by the Respondent due to the Applicant’s history. Had he been aware of the reason for the dismissal of the Applicant, he would not have supported the recommendation of the Applicant for employment.
31. During cross examination, he confirmed that the post was a departmental post and said that the Principal had informed them that she received a go ahead from the Respondent to advertise the post. He did not personally go to the Respondent for such a confirmation only heard that from the Principal.
The Applicant’s closing arguments
32. It was the Applicant’s argument that the post applied for, interviewed, offered and accepted was a departmental post and never at one stage could it have been an SGB post simply because the Respondent had to sort out its administrative issues. There was no vacant SGB post the Applicant could have possibly occupied. In supporting its case, the Applicant party made reference to decided cases.
33. The Eskom Holdings Lt v Fipaza & Others was clear that once an offer of employment had been accepted, that accepted offer attains the status of an employment contract. The Applicant accepted the offer therefore employment came into place.
34. In Wyeth SA Pty Lt v Manqele & Others , the court stated that a dismissal occurred when an employer had terminated a contract of employment with or without notice, there was no basis for assuming that the contract referred to in section 186(1)(a) of the LRA was a contract in terms of which an employee was actually working for an employer. The failure to follow its own procedures in the recruitment of candidates did not mean that the appointment was invalid.
35. In Khumalo and Another v Member of Executive Council for Education: Kwazulu natal an appointment or promotion remained valid until and unless a court of law declared the action unlawful. It was the Applicant’s argument that the fact that there was no appointment letter did not mean that there had been no employment relations. An appointment letter was merely a document containing a record of a transaction which had already been agreed to by the contracting parties.
36. The Applicant had stated in his z83 form that he was dismissed and had not misrepresented himself, therefore the dismissal was not in accordance with a fair reason. Furthermore, he was not given an opportunity to make representations as to why the offer of employment should be withdrawn, he was simply informed that he was unemployable, therefore dismissal was procedurally unfair. The relief sought was for retrospective reinstatement.
The Respondent’s arguments
37. The Applicant was once employed by the Respondent and was aware of the procedure the Respondent followed when appointing an Educator. The post was not advertised by the Respondent but by the School. The school was not instructed by the Respondent to advertise. The z83 form was an application form not an assumption of duty letter. The PO20 was a recommendation letter which the Applicant confirmed that he had completed meaning that he was aware that he was being recommended for a post not being appointed.
38. The Applicant was aware that he was not an employee of the Respondent but a job applicant. The Principal confirmed that she did not follow the procedure as she wanted to impress her superiors. The Eskom matter was irrelevant as in that case there was an offer and an acceptance but in this matter no offer of employment was made by the Respondent to the Applicant.
39. The z83 was not in front of the panel when the Principal asked why the Applicant left employment. Both the Respondent’s witnesses testified that had they knew about the Applicant’s dismissal, they would not have made the recommendation. The Head of the Department (“HoD”) was the one to appoint Educators and no appointment was done by the HoD.
40. The prayer was for the matter to be dismissed as there had been no employment relations between the Applicant and the Respondent. Furthermore, the Respondent was in a sector where the community/SGB was important or a stakeholder and could not have in its employ someone which the community in a form of the SGB said they could not trust to be in the presence of their children.
Analysis of evidence and argument
41. The first issue I am called to decide is whether the Applicant was an employee of the Respondent on 31 May 2020 when he left the school pursuant to what he contends was a dismissal but what the Respondent contends was not a dismissal as there was no employment relationship between them.
42. The Applicant contends that he was the employee of the Respondent while the Respondent contends that he was the employee of the school as he was recruited and remunerated by the school. If it is established that the Applicant was indeed an employee of the Respondent, then I need to proceed and deal with whether there was a dismissal and whether such dismissal if it exists was procedurally and substantively fair. On the other hand, if it is established that he was not an employee of the Respondent, then the matter would be dismissed for the lack of jurisdiction.
43. It is settled law that the LRA only applies to the relationship between employer and employee. It follows therefore that the question whether a person is an employee of another or not, is a jurisdictional issue. Therefore, it is important to first make a determination as to whether there was an employer and employee relationship between the parties as this goes to the jurisdiction of the ELRC to deal with the merits of the case.
Was the Applicant the employee of the Respondent?
44. The Respondent’s contention is that the Applicant was not the employee of the Respondent because he was not recruited and was not appointed by the Respondent.
45. Section 213 of the LRA defines an employee as :-
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration;
(b) any other person who in any manner assists in carrying on or conducting the business of an employer…”
46. It therefore becomes important to comment on the definition above and decide whether it includes a person in the position of the Applicant.
47. In Wyeth SA (Pty)Ltd v Manqele & others ), the court interpreted the definition in question. In coming to its decision, the Court had regard to the Constitutional right entrenched in section 23. It held that section 3(B) of the LRA required the Court to interpret the provisions of the LRA in compliance with the Constitution in order to give the full effect to the legislative purpose to ensure the protection, promotion and fulfilment of constitutional rights. The court had regard to the position of a person who might have resigned from his former employment on the basis of him having concluded a contract of employment. Such a person might find himself in a worse position than an applicant for a position advertised.
48. The court held that the definition of employee in section 213 of the LRA can be read to include a person or persons who has or have concluded a contract of employment of which the commencement of employment is deferred to a future date or dates.
49. In this case, the Applicant’s contention is that employment relations existed on 28 February 2020 and that the payment of salary by the Respondent was deferred to 01 April 2020. Although this is the contention, the Applicant did not provide any proof that the department/Respondent had agreed to pay the Applicant remuneration from 01 April 2020.
50. It is common cause that there was no written employment contract concluded between the Applicant and the Respondent and that there was no appointment letter issued to the Applicant by the Respondent. Furthermore, it is common cause that the advert which the Applicant responded to was not advertised by the Respondent but that it was advertised by the school itself. It is common cause that the Applicant indeed provided his services to the school in February and in March 2020 and he was remunerated by the school for those services rendered.
51. The Principal testified that she did not get permission from the Respondent to advertise the position which was a departmental position. Her testimony about the procedure followed when the Respondent recruits was not disputed. Her testimony was that for departmental posts, the Respondent was the one to advertise and the candidates would make their applications to the Respondent and not directly to the school. The testimony of the SGB Chairperson that the Principal told the SGB that she received permission from the Respondent to go on recruitment process was hearsay and is not probable as the Principal confirmed that she did not get any approval to advertise the position.
52. It is therefore clear that at the time the Applicant was recruited, the Respondent had not embarked on a recruitment process but the school did that at its own accord. Furthermore, although it has always been the Applicant’s contention that he was employed by the Respondent on 28 February 2020, he conceded during cross examination that for the duration of his alleged employment which is from February 2020 up until the date of the alleged dismissal, there had been no contact or communication between him and the Respondent.
53. The Applicant conceded that he was previously employed by the Respondent and explained the process followed when he ended up being the employee of the Respondent. The first month of his employment in 2006 was remunerated by the SGB, similarly in February and March 2020 he was remunerated by the SGB. He never contended that he was an employee of the Respondent in 2006 when he was remunerated by the SGB.
54. It is clear from the Principal’s testimony that the school, without the permission from the Respondent interviewed and allowed the Applicant to resume duties at the school. If permission was granted by the Respondent that the Applicant be appointed at the school, then the SGB would not have taken it upon itself to remunerate the Applicant for services rendered. Had the appointment been made by the Respondent, the Respondent would have been liable for payment and in an event the salary was not paid, the Applicant would have approached the ELRC in terms of clause 69 of the ELRC Constitution to enforce his right for salary payment. This was not done as it is probable that the Applicant was aware that he was not yet appointed by the Respondent.
55. Furthermore, the Applicant conceded that he completed the z83 and the PO20 forms after the interview with the school when he resumed work at the school. It was not disputed that the z83 form was a job application form and that the PO20 served as a recommendation form. Therefore, it is clear that by the date the Applicant resumed duties, he was still in a process of applying for a departmental post and that the only process that had taken place was the SGB recommending him for the departmental post but no appointment had been made by the Respondent.
56. It must be noted that in the public education sector, recruitment of departmental educators is done in accordance with chapter 3 of the EEA read in line with the PAM and the ELRC Collective agreements regarding appointments. One cannot speak of educators appointments in the public sector without making reference to the very same legislation which was enacted for the purpose of appointments in the public education sector.
57. Section 6(1)(b) of the EEA provides that “ subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator- in the service of a provincial Department of Basic Education shall be made by the Head of Department (‘HoD’)”. ( my emphasis)
58. In terms of section 6(3)(a), “any appointment,…to any post on the educators establishment of a public school may only be made on the recommendation of the governing body of the public school and, … or that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.
59. In terms of section 6(3)(d), the HoD when considering the recommendation must before making an appointment ensure that the governing body has met the requirements.
60. It is therefore clear that in order for an educator to argue that he or she was an employee of the Respondent, it ought to be proven that an appointment was at least made by the HoD.
61. In this case, no proof was submitted that the Applicant was appointed by the HoD or that the HoD had delegated his/her powers to any other person to do such an appointment and bind the Respondent. The case of Khumalo(supra) and the Eskom case do not find place in this matter as in both cases there had been an appointment made by the department and there was acceptance thereof. In this case, there is no proof that the department/HoD made such an appointment.
62. The fact that the post in which the school placed the Applicant on, was a departmental post does not prove that the appointment was made by the HoD and that the Applicant therefore became the employee of the Respondent.
63. In terms of the EEA, an Educator in the provincial department of basic education is appointed by the HoD and not by the school itself. When it comes to departmental post, the school/ the SGB is only limited to making a recommendation of the candidates to the HoD and does not make appointments on behalf of the HoD.
64. It is therefore clear that regardless of whether or not the correct procedure was followed by the school in recruiting the Applicant, what the SGB did was merely to recommend the Applicant to the Respondent and the result of such recommendation did not end up in an appointment.
65. What is clear from the evidence before me is that indeed there was a relationship which came to existence between the school and the Applicant but the Applicant failed to provide any proof that there was a relationship which came to existence between him and the Respondent.
66. In Phera v ELRC and others , it was held that where an employee assumes duties without written permission from the Department, such assumption of duties would not establish an employment relationship per se.
67. The principle in the Phera case can reasonably be applied to this matter as the Applicant was not given permission by the Respondent to assume any duties. Such permission was given by the school itself without approval from the HoD/ the Respondent. It is clear from the evidence before me that when the Applicant assumed duties on 28 February 2020, the department did not give permission for him to do so. No proof was submitted that the department did so. What is evident is that when he resumed duties, he submitted a z83 form which is an application form for employment.
68. Therefore, without the HoD appointing the Applicant in the post, there cannot be an employer and employee relationship that existed between the Applicant and the Respondent. Since the Applicant left the service of the Respondent in 2014, it could be argued that he was still at the stage of a “job applicant” as he was not working for the Respondent at the time the recommendation was made. As a result, the Respondent could not have dismissed an employee who was not in its employment.
69. In Mthashana FET College v ELRC & Others , the Labour Appeal Court held at par
[15] “… the persons over whom the ELRC has jurisdiction appear in clause 6 of its Constitution, Collective agreement No:1 of 2006 as follows:
‘6. Constitutional scope
The registered scope of the Council extends to the State in its capacity as employer
and those employees in respect of which the Employment of Educators Act, 1998,
applies.’
70. The ELRC has jurisdiction to deal with disputes of educators employed in terms of the EEA. There is no proof before me that the Applicant was indeed employed by the Respondent and that such employment was in terms of the EEA.
71. Therefore, by failing to establish the employment relations between the Applicant and the Respondent, the matter cannot be considered under the auspices of the ELRC.
Award
72. The Applicant TTJ Mofokeng failed to prove the existence of employment relations between himself and the Respondent, Free State Department of Education.
73. The ELRC has no jurisdiction to deal with the merits of the case.
74. The case is dismissed.
Zoliswa Taba
ELRC Panellist