PSES115-18/19WC
Text
ELRC527-21/22KZN
Award Date:
29 March 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC527-21/22KZN
In the Arbitration matter between:
Nokufa Mavis Mbhele Applicant
and
Education Department of KwaZulu Natal Respondent
ARBITRATION AWARD
Venue of arbitration: Online (Via Zoom)
Date: 28 January 2022 (postponed) and 9 March 2022
Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: N/A
Applicant: Nokufa Mavis Mbhele
Respondent’s Representative: W.B Ntshangase (Deputy Director – Human Resource Management)
DETAILS OF HEARING AND REPRESENTATION
[1] An arbitration hearing was scheduled to be conducted on 28 January 2022, but the matter was postponed on application by the Applicant. The matter was re-scheduled and heard on 9 March 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on 9 March 2022.
[2] The Applicant, Ms. Nokufa Mavis Mbhele appeared in person. The Respondent, Education Department of KwaZulu Natal was represented by Mr. W.B Ntshangase, the Respondent’s Deputy Director – Human Resource Management.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.
ISSUE TO BE DECIDED
[4] I have to determine whether the Applicant is entitled to payment of outstanding salary or not. Should I find that the Applicant is entitled to such payments, I have to determine the appropriate relief.
[5] The Applicant sought payment of her outstanding salary.
BACKROUND
[6] The Applicant referred a dispute in terms of non-payment of salary. The arbitration was scheduled to be conducted on 28 January 2022, but the matter was postponed on application of the Applicant. The arbitration was re-scheduled and was conducted on 9 March 2022. Both parties submitted their heads of argument in writing on or before 16 March 2022.
SURVEY OF EVIDENCE AND ARGUMENT
[7] The Applicant bore the onus to prove that the Respondent committed an unfair labour practice by not paying her outstanding salary. All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this award (Section 138 of the LRA).
THE APPLICANT’S EVIDENCE AND ARGUMENTS
[8] The Applicant submitted a bundle of documents consisting of 3 pages, numbered from page 1 to 3, which I admitted as Bundle “A” (hereinafter referred to as “A”).
Ms. Nokufa Mavis Mbhele (the Applicant) testified under oath as follows:
[9] She worked for the Department of Education (hereinafter referred to as “the Department”). Her assumption of duty documents was submitted to the Department of Education by the school principal, Ms. Mbatha. Her documents were submitted by the principal, together with the documents of Ms. Dladla. They attended the interviews together and they started working at the school on the same day. She started working at Sicel-Ukukhanya High School as an educator, post level 1 (PL1) on 15 February 2021. The principal introduced her to the staff at the school on 5 March 2021.
[10] The school closed on 24 April 2021 for the school holidays. When the school re-opened on 3 May 2021, the principal asked them if they received their salaries. Dladla confirmed that she was paid her salary for March and April 2021 by the end of April 2021. She (the Applicant) informed the principal (Mbatha) that she was not paid her salary. Mbatha asked her why she was not paid her salary, as she submitted their documents to the district office on the same day. Mbatha told her that her husband (Mr. Mbatha who was also the MEC of Education in KwaZulu Natal) said he saw her name on his visit to the district office and it showed that she was paid her salary. Ms. Mbatha told her that she would make telephonic contact with the Department in order to enquire about the payment of her salary.
[11] Ms. Mbatha told her the following week that she had phoned the district office she was informed that her documents were with Mr. Nzama (the HOD for Education in KwaZulu Natal). Mbatha also told her that the district office sated that she had to wait until the approval got back from Nzama. The Applicant stated that the approval was required based on the fact that she resigned in 2016. When one resigned, the principal had to send the documents to the HOD for approval of her appointment. Mbatha later informed her that the Department of Education phoned her and requested that she write a motivation based on why she wanted the Applicant being appointed again at her school. She stated that she continued working as nobody told her to stop working.
[12] She was contacted via telephone by Ms. Chaule from the district office. Chaule informed her that if there was any salary she had received from the Department, she would owe the Department that salary if she used it, as she was not supposed to receive any salary before her appointment was approved by the HOD. She informed Chaule that she did not receive payment of any salary. Chaule told her that it was good and that it meant that they managed to stop the payment of her salary before it could be paid. She informed Mbatha of the conversation she had with Chaule. Mbatha told her that maybe they would pay her the outstanding salaries as one payment.
[13] Mbatha called her to her office on 14 May 2021. She told the Applicant that she would borrow her R5000.00 as she was waiting for her salary for a long time. Mbatha paid the R5000.00 in her bank account on 14 May 2021 (page 1 of “A”). She was again called to the office of the principal during the week of 26 May 2021 while she was still teaching at the school. The HOD as well as the Deputy principal was in the office when she arrived there. Mbatha told her that she was telephonically informed by the district office that she had to stop teaching. Mbatha told her that she was informed that Nzama did not approve her appointment, as the subjects she was teaching were not critical subjects. Mbatha apologized to her and told her that she would speak to the Department in order for them to pay her salary for the period she worked. Mbatha contacted her telephonically around the end of June 2021 and informed her that she was informed by the Department that they could not pay her salary.
[14] Mbatha told her that she would speak to the School Governing Body (SGB) to find out if they could pay her an amount in order to pay for the staff transport she used to go to the school. The amount of the staff transport was R1200.00 per month. Mbatha phoned her on 8 July 2021 and told her that the SGB agreed to pay her
R 15000.00. Mbatha told her that it was not the payment of her salary, but an amount to assist her in paying her debt. She gave Mbatha authorization to deduct the R5000.00 loan from the R15000.00. Mbatha accordingly deposited the remaining R10000.00 in her bank account on 8 July 2021 (page 2 of “A”).
During cross-examination
[15] She was asked how she applied for the position. She stated that Mbatha contacted her telephonically and told her that she had two positions at the school, and that she should visit her at the school. She accordingly went to go and speak to Mbatha at the school on 14 February 2021. She stated that the SGB never indicated to her when she had to pay back the R15000.00.
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
[16] The Respondent submitted a bundle of documents consisting of 16 pages, numbered from page 1 to 16, which I admitted as Bundle “R” (hereinafter referred to as “R”).
Mr. Sibusiso Eric Mthembu testified under oath as follows:
[17] He was employed as the Assistant Director – Human Resources within the appointments section. His role was to ensure that all applicants who were recommended for appointment complied with the requirements of the post. He would submit the documents to the District Director for approval. The Assistant Director would then issue a letter to the school for the educator (teacher) to start his/her duties. HRM Circular 5 of 2017 prescribed a process to follow when educators who previously resigned wanted to return as employees. There must be a motivation from the school. Staff employed in surplus positions should be considered and given first preference for internal transfers. Students who received bursaries from the Department should also be given preference. Only thereafter could employees who left the Department be considered for appointment.
[18] His department did not receive any documents in respect of the Applicant’s appointment to the post. They must receive the said documents from the Circuit manager, but did not receive anything
During cross-examination
[19] He was asked how the Applicant’s salary was paid, as Chaule said if she was going to be paid a salary, she would owe the Department. Chaule not aware of Chaule saying anything about the Applicants salary being paid. He was also not aware of any salary that was paid to the Applicant. He was not aware of any documents that was sent to the Head office of the Department in Pietermaritzburg for approval. It was put to him that the principal told the Applicant that the Department telephonically told her to conduct the interviews for the position. He stated that he was not aware of such.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
[20] In this matter, the Applicant bears the onus to prove that the Respondent committed an unfair labour practice by not paying her salary. The Applicant is claiming that she was working as an educator at Sicel-Ukukhanya secondary school from 15 February 2021 until 26 May 2021, and that she was never paid her salary for that period.
[21] The Applicant’s case is that she was called by the principal about a position as an educator at the school. The principal interviewed her and she started working on 15 February 2021. The principal submitted her documents for authorization, but she was later informed by the principal that her appointment was not authorized by the Department of Education and that she had to stop working. The principal spoke to the SGB who agreed to pay her R15000.00 in order to cover her outstanding debt.
[22] The Respondent’s case is that the Department never appointed the applicant, as there was a prescribed process to be followed in appointing her, which was never done. They never received any documents in respect of the Applicant’s appointment to the post.
[23] The Applicant testified that she started working at the school on 15 February 2021 but she was introduced by the principal to the staff at the school on 5 March 2021. Her testimony is also that she signed the attendance register from 5 March 2021 until 26 May 2021. The principal asked them whether they received their salaries when the school re-opened on 5 May 2021. It is also the evidence of the Applicant that the principal told her that she had to stop working, as her appointment was not authorized or approved.
[24] I find it very unlikely that one would start working on 15 February 2021 but would only be introduced as a new employee to the other staff members on 5 March 2021. The Applicant in her own testimony stated that she was not paid a salary when or before the school re-opened on 5 May 2021, but further testified that she only completed the attendance register from 5 March 2021. It may have been that the Applicant worked from 5 March 2021 and not from 16 February 2021. Who her employer was is clearly not known.
[25] I also, during the arbitration, asked the Applicant what the salary was that she was offered on her appointment. She could not provide me with any information to that effect as she stated that she did not know on what salary she had been appointed.
[26] What is evident from the evidence placed before me is that the Applicant was paid an amount of R5000.00 on 14 May 2021 and another R10000.00 on 8 July 2021, whereby the description of the payment on her bank statements show as “Payment received Z Mbatha.” (Pages 1 and 2 of “A”). Although it was not the evidence of the Applicant that the amounts were paid to her by the Department, it is still important to note that the payment did not reflect as a payment made by the Department.
[27] The Applicant did not discharge the onus in proving that she was indeed appointed by the Department and that she worked as an educator for the Department of Education. It follows that she did not discharge the onus in proving that she was entitled to a salary payment by the Department and according failed to prove that the Department failed to pay her a salary which she was entitled to get.
[28] The Applicant did not prove that the Respondent committed an unfair labour practice by not paying her certain salaries due to her.
AWARD
[29] The Respondent, Education Department of KwaZulu Natal, did not commit an unfair labour practice in not paying the Applicant outstanding salary payments.
[30] The claim of the Applicant, Nokufa Mavis Mbhele for relief is accordingly dismissed.
[31] ELRC Case management is directed to close the file.
Signature:
Commissioner: Marlon Plaatjies
Date: 29 March 2022 Place: George
Case No ELRC527-21/22KZN
In the Arbitration matter between:
Nokufa Mavis Mbhele Applicant
and
Education Department of KwaZulu Natal Respondent
ARBITRATION AWARD
Venue of arbitration: Online (Via Zoom)
Date: 28 January 2022 (postponed) and 9 March 2022
Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: N/A
Applicant: Nokufa Mavis Mbhele
Respondent’s Representative: W.B Ntshangase (Deputy Director – Human Resource Management)
DETAILS OF HEARING AND REPRESENTATION
[1] An arbitration hearing was scheduled to be conducted on 28 January 2022, but the matter was postponed on application by the Applicant. The matter was re-scheduled and heard on 9 March 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on 9 March 2022.
[2] The Applicant, Ms. Nokufa Mavis Mbhele appeared in person. The Respondent, Education Department of KwaZulu Natal was represented by Mr. W.B Ntshangase, the Respondent’s Deputy Director – Human Resource Management.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.
ISSUE TO BE DECIDED
[4] I have to determine whether the Applicant is entitled to payment of outstanding salary or not. Should I find that the Applicant is entitled to such payments, I have to determine the appropriate relief.
[5] The Applicant sought payment of her outstanding salary.
BACKROUND
[6] The Applicant referred a dispute in terms of non-payment of salary. The arbitration was scheduled to be conducted on 28 January 2022, but the matter was postponed on application of the Applicant. The arbitration was re-scheduled and was conducted on 9 March 2022. Both parties submitted their heads of argument in writing on or before 16 March 2022.
SURVEY OF EVIDENCE AND ARGUMENT
[7] The Applicant bore the onus to prove that the Respondent committed an unfair labour practice by not paying her outstanding salary. All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this award (Section 138 of the LRA).
THE APPLICANT’S EVIDENCE AND ARGUMENTS
[8] The Applicant submitted a bundle of documents consisting of 3 pages, numbered from page 1 to 3, which I admitted as Bundle “A” (hereinafter referred to as “A”).
Ms. Nokufa Mavis Mbhele (the Applicant) testified under oath as follows:
[9] She worked for the Department of Education (hereinafter referred to as “the Department”). Her assumption of duty documents was submitted to the Department of Education by the school principal, Ms. Mbatha. Her documents were submitted by the principal, together with the documents of Ms. Dladla. They attended the interviews together and they started working at the school on the same day. She started working at Sicel-Ukukhanya High School as an educator, post level 1 (PL1) on 15 February 2021. The principal introduced her to the staff at the school on 5 March 2021.
[10] The school closed on 24 April 2021 for the school holidays. When the school re-opened on 3 May 2021, the principal asked them if they received their salaries. Dladla confirmed that she was paid her salary for March and April 2021 by the end of April 2021. She (the Applicant) informed the principal (Mbatha) that she was not paid her salary. Mbatha asked her why she was not paid her salary, as she submitted their documents to the district office on the same day. Mbatha told her that her husband (Mr. Mbatha who was also the MEC of Education in KwaZulu Natal) said he saw her name on his visit to the district office and it showed that she was paid her salary. Ms. Mbatha told her that she would make telephonic contact with the Department in order to enquire about the payment of her salary.
[11] Ms. Mbatha told her the following week that she had phoned the district office she was informed that her documents were with Mr. Nzama (the HOD for Education in KwaZulu Natal). Mbatha also told her that the district office sated that she had to wait until the approval got back from Nzama. The Applicant stated that the approval was required based on the fact that she resigned in 2016. When one resigned, the principal had to send the documents to the HOD for approval of her appointment. Mbatha later informed her that the Department of Education phoned her and requested that she write a motivation based on why she wanted the Applicant being appointed again at her school. She stated that she continued working as nobody told her to stop working.
[12] She was contacted via telephone by Ms. Chaule from the district office. Chaule informed her that if there was any salary she had received from the Department, she would owe the Department that salary if she used it, as she was not supposed to receive any salary before her appointment was approved by the HOD. She informed Chaule that she did not receive payment of any salary. Chaule told her that it was good and that it meant that they managed to stop the payment of her salary before it could be paid. She informed Mbatha of the conversation she had with Chaule. Mbatha told her that maybe they would pay her the outstanding salaries as one payment.
[13] Mbatha called her to her office on 14 May 2021. She told the Applicant that she would borrow her R5000.00 as she was waiting for her salary for a long time. Mbatha paid the R5000.00 in her bank account on 14 May 2021 (page 1 of “A”). She was again called to the office of the principal during the week of 26 May 2021 while she was still teaching at the school. The HOD as well as the Deputy principal was in the office when she arrived there. Mbatha told her that she was telephonically informed by the district office that she had to stop teaching. Mbatha told her that she was informed that Nzama did not approve her appointment, as the subjects she was teaching were not critical subjects. Mbatha apologized to her and told her that she would speak to the Department in order for them to pay her salary for the period she worked. Mbatha contacted her telephonically around the end of June 2021 and informed her that she was informed by the Department that they could not pay her salary.
[14] Mbatha told her that she would speak to the School Governing Body (SGB) to find out if they could pay her an amount in order to pay for the staff transport she used to go to the school. The amount of the staff transport was R1200.00 per month. Mbatha phoned her on 8 July 2021 and told her that the SGB agreed to pay her
R 15000.00. Mbatha told her that it was not the payment of her salary, but an amount to assist her in paying her debt. She gave Mbatha authorization to deduct the R5000.00 loan from the R15000.00. Mbatha accordingly deposited the remaining R10000.00 in her bank account on 8 July 2021 (page 2 of “A”).
During cross-examination
[15] She was asked how she applied for the position. She stated that Mbatha contacted her telephonically and told her that she had two positions at the school, and that she should visit her at the school. She accordingly went to go and speak to Mbatha at the school on 14 February 2021. She stated that the SGB never indicated to her when she had to pay back the R15000.00.
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
[16] The Respondent submitted a bundle of documents consisting of 16 pages, numbered from page 1 to 16, which I admitted as Bundle “R” (hereinafter referred to as “R”).
Mr. Sibusiso Eric Mthembu testified under oath as follows:
[17] He was employed as the Assistant Director – Human Resources within the appointments section. His role was to ensure that all applicants who were recommended for appointment complied with the requirements of the post. He would submit the documents to the District Director for approval. The Assistant Director would then issue a letter to the school for the educator (teacher) to start his/her duties. HRM Circular 5 of 2017 prescribed a process to follow when educators who previously resigned wanted to return as employees. There must be a motivation from the school. Staff employed in surplus positions should be considered and given first preference for internal transfers. Students who received bursaries from the Department should also be given preference. Only thereafter could employees who left the Department be considered for appointment.
[18] His department did not receive any documents in respect of the Applicant’s appointment to the post. They must receive the said documents from the Circuit manager, but did not receive anything
During cross-examination
[19] He was asked how the Applicant’s salary was paid, as Chaule said if she was going to be paid a salary, she would owe the Department. Chaule not aware of Chaule saying anything about the Applicants salary being paid. He was also not aware of any salary that was paid to the Applicant. He was not aware of any documents that was sent to the Head office of the Department in Pietermaritzburg for approval. It was put to him that the principal told the Applicant that the Department telephonically told her to conduct the interviews for the position. He stated that he was not aware of such.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
[20] In this matter, the Applicant bears the onus to prove that the Respondent committed an unfair labour practice by not paying her salary. The Applicant is claiming that she was working as an educator at Sicel-Ukukhanya secondary school from 15 February 2021 until 26 May 2021, and that she was never paid her salary for that period.
[21] The Applicant’s case is that she was called by the principal about a position as an educator at the school. The principal interviewed her and she started working on 15 February 2021. The principal submitted her documents for authorization, but she was later informed by the principal that her appointment was not authorized by the Department of Education and that she had to stop working. The principal spoke to the SGB who agreed to pay her R15000.00 in order to cover her outstanding debt.
[22] The Respondent’s case is that the Department never appointed the applicant, as there was a prescribed process to be followed in appointing her, which was never done. They never received any documents in respect of the Applicant’s appointment to the post.
[23] The Applicant testified that she started working at the school on 15 February 2021 but she was introduced by the principal to the staff at the school on 5 March 2021. Her testimony is also that she signed the attendance register from 5 March 2021 until 26 May 2021. The principal asked them whether they received their salaries when the school re-opened on 5 May 2021. It is also the evidence of the Applicant that the principal told her that she had to stop working, as her appointment was not authorized or approved.
[24] I find it very unlikely that one would start working on 15 February 2021 but would only be introduced as a new employee to the other staff members on 5 March 2021. The Applicant in her own testimony stated that she was not paid a salary when or before the school re-opened on 5 May 2021, but further testified that she only completed the attendance register from 5 March 2021. It may have been that the Applicant worked from 5 March 2021 and not from 16 February 2021. Who her employer was is clearly not known.
[25] I also, during the arbitration, asked the Applicant what the salary was that she was offered on her appointment. She could not provide me with any information to that effect as she stated that she did not know on what salary she had been appointed.
[26] What is evident from the evidence placed before me is that the Applicant was paid an amount of R5000.00 on 14 May 2021 and another R10000.00 on 8 July 2021, whereby the description of the payment on her bank statements show as “Payment received Z Mbatha.” (Pages 1 and 2 of “A”). Although it was not the evidence of the Applicant that the amounts were paid to her by the Department, it is still important to note that the payment did not reflect as a payment made by the Department.
[27] The Applicant did not discharge the onus in proving that she was indeed appointed by the Department and that she worked as an educator for the Department of Education. It follows that she did not discharge the onus in proving that she was entitled to a salary payment by the Department and according failed to prove that the Department failed to pay her a salary which she was entitled to get.
[28] The Applicant did not prove that the Respondent committed an unfair labour practice by not paying her certain salaries due to her.
AWARD
[29] The Respondent, Education Department of KwaZulu Natal, did not commit an unfair labour practice in not paying the Applicant outstanding salary payments.
[30] The claim of the Applicant, Nokufa Mavis Mbhele for relief is accordingly dismissed.
[31] ELRC Case management is directed to close the file.
Signature:
Commissioner: Marlon Plaatjies
Date: 29 March 2022 Place: George