Award  Date:
  01 August 2022
Commissioner: Nzwisisai L Dandadzi
Case No.: ELRC70-22/23EC
Date of Award: 01 August 2022

In the matter between:


(Union / Applicant)


1. The matter was heard online on 18 July 2022. The Applicant was represented by Ms Venita Van Wyk, an official from trade union SAOU and the Respondent was represented by Mr Toto Tsheko, an official from the Eastern Cape Department of Education.
2. The Applicant referred a dispute to the Council claiming she had not been paid monies due to her in respect of a salary for services rendered to the Respondent in March and April 2022. October 2019.
3. The Applicant was employed by the Respondent as an educator on 1 January 1997 and at the time of her retirement was a level one educator. The Applicant earned a gross monthly salary of R31 157,50 and retired on 28 February 2022, however continued to render services to the Respondent until the end of April 2022 and therefore claims her salary for the services she rendered.
4. I must determine whether the Applicant was an employee of the Respondent and therefore entitled to be paid the salary that she is claiming from the Respondent.

5. The Applicant testified that she was employed by the Respondent as an educator on 01 January 1997 and retired on 28 February 2022. The Applicant stated that there were problems with her retirement papers as she as reflected as retired due to ill health, she therefore decided that she would continue to work until the issue was resolved as she was the sole bread winner. The Applicant testified that she reported the error on her pension documents to Mrs Sinda from the Department of Education’s pensions department who undertook to correct the errors, however it was not corrected. The Applicant testified that the Department of Education and the Principal were aware that she had continued to work and never advised her that she can no longer work, therefore she did what she thought was best for her in the circumstances, however she did not complete an assumption of duty form.

6. The Respondent’s witness was Sindi Mji who testified that she is in the Department’s Human Resources Pension withdrawals, she testified that the Applicant was due for retirement on 28 February 2022 and later advised the witness that she wanted to withdraw her retirement papers as there were issues with the pension fund linking to her bank account. The witness testified that she could no longer withdrew her retirement as the computer persal had already closed for February and it would affect her salary and medical aid, and therefore if she wanted to withdrew she would have to make an application to the Finance Department for her March salary, however April would be reinstated. The Applicant then stated that she would no longer withdraw her retirement application and pursuant thereto retired on 28 February 2022 and her pension was paid out on 23 March 2022. It was testified that the Applicant was on normal retirement and not on medical boarding. The witness testified that the email to the Applicant was not to advise her to go back but was to explain to her the consequences of withdrawal of her retirement application and therefore was not confirmation that she would be going back to world.


7. It is not in dispute that the Applicant retired on 28 February 2022, the Applicant contends it was erroneously on the grounds of medical boarding while the Respondent contends that her retirement was procedural on the basis of her having reached the age of retirement. I however need not concern myself with that issue as the Applicant concedes that she registered her intention to retire on the said date.

8. From the Applicant’s evidence, she continued to render services to the Respondent notwithstanding that there was no contract of employment between the parties pursuant to her retirement on 28 February 2022. The Applicant testified that she made a decision to rented services on her own accord as she was concerned that her pension payout would be late and the Respondent and the school principal were aware that she was still working and did not advise her otherwise.

9. The Respondent contends that the Applicant was advised that she could no longer be reinstated onto the system and be paid a salary in March 200 but would have to apply for the release of the salary from the Department’s finance department as her pension application had already been processed. The Applicant opted not to withdraw her pension application and therefore ceased to be an employee of the Department on 28 February 2022, notwithstanding that she on her own accord continued to render services in March and April 2022. I am of the view that the Applicant was no longer an employee of the Respondent as of 28 February 2022 as her contract of employment terminated upon her retirement. The Applicant conceded that notwithstanding that the Department and her Principal were aware that she was going to work at the school, she never signed an assumption of duty form in March or April 2022.

10. As I have found that the Applicant was not employed by the Respondent at the time her alleged claim arose, her claim for outstanding money cannot be in terms of a contract of employment as on her own version her contract of employment had terminated on 28 February 2022, I would be constrained to make a finding that the Respondent owed the Applicant the amount claimed in terms of a contract of employment.

11. While it is not in dispute that the Applicant continued to attend at school, the Respondent contends it was not in terms of any agreement or contract of employment hence no obligation to pay the Applicant arose. I agree with the Respondent’s contention that they did not employ the Applicant pursuant to retirement and she on her version continued to go to school as she feared she would not get her pension pay out which was paid out during the course of March 2022/

12. I therefore find that there was no employment relationship between the Applicant and the Respondent that gave rise to an obligation that the Applicant be paid a salary for March and April 2022. The Applicant’s claim is therefore dismissed.


13. The Applicant’s claim for payment of a salary for March and April 2022 is dismissed.

14. The Education Labour Relations Council is directed to close the file.

Dated at Johannesburg on this 1 August 2022.

Nzwisisai Dandadzi
CCMA Commissioner
261 West Avenue
8h00 to 16h30 - Monday to Friday
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