ELRC278-21/22 EC

Case Number: ELRC278-21/22 EC
Malusi Mbuli
Date of Award: 16 September 2022

In the ARBITRATION between


NUPSAW obo MKULULI MAMASE
(Applicant)

And

DEPARTMENT OF HIGHER EDUCATION – PORT ELIZABETH TVET COLLEGE
(Respondent)


DETAILS OF HEARING AND DETAILS REPRESENTATION

1. The arbitration hearing took place on the 24th of June 2022 virtually and 25th & 26th of July 2022 at the Port Elizabeth TVET College in Port Elizabeth.

2. The applicant Mr. Mkhululi Mamase was present at the hearing and was represented by Mr. Sangolinye Ngqungwana a shop steward of the applicant’s trade union NUPSAW.

3. The respondent, Department of Education – Port Elizabeth TVET College was also present at the hearing and was represented by Mr. Dorian Baartzes, an official of the respondent.

4. The arbitration hearing proceeded for the days listed above and was finalized on the 26th of July 2022 and the parties agreed to deliver their closing arguments in writing on or before the 29th of July 2022.

ISSUE TO BE DECIDED

5. I am required to determine whether the applicants was dismissed, if yes whether his dismissal was unfair and if so, the appropriate relief in accordance with Sections 193 and 194 of the Labour Relations Act No 66 of 1995, as amended.

BACKGROUND TO THE ISSUE

6. The applicant was not an employee of the respondent when he filed the dispute and his disputes boarders exactly on this point because the applicant argues that he was employed by the respondent and was later dismissed.

7. It is not clear at this stage whether the applicant’s service was terminated by the respondent or the applicant was not employed by the respondent.

8. This makes this dispute a bit unique from the other dismissals or termination of services and an assessment will be made based on the total evidence that was led at the hearing because it was easy to separate the provisions of section 192 (1) and those of section 192 (2) as will be demonstrated in the summary of evidence.

9. Section 192 of the Labour Relations Act 66 of 1995 as amended in 2015 provides that:

(1) In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal.
(2) If the existence of a dismissal is established, the employer must prove that the dismissal is fair.

10. As I have indicated as a result of the nature and uniqueness of this dispute I decided to hear the whole evidence relating to this dispute in order for me to be in a better position to understand what happened and the nature of the dispute that is before me.

11. Almost all the evidence led in this arbitration is common and I do not intend repeating that evidence but with touch on these common cause facts and then deal with the issue of whether the applicant was dismissed.

12. In terms of Section 36 of the Basic Conditions of Employment Act 75 of 1997 the termination of employment can be effected at the instance of either party or by mutual agreement. In this dispute it is clear that the applicant’s case is that his services were terminated at the instance of the employer.

13. The question at the center of this dispute is at whose instance were these services terminated if there were ever services and as indicated this will be done in the context of the application of the provisions of section 192 (1) and later 192 (2) if applicable.

14. The applicant has referred a dismissal dispute to the ELRC alleging that the respondent has unfairly dismissed him and the matter was later set down for arbitration hearing and finalized on the 26th of July 2022.

SURVEY OF EVIDENCE

15. Most of the facts in this dispute are common cause and will deal with these in one topic and later focus on the facts that are in dispute and how they were articulated in the hearing before I deal with argument.

Common cause facts

- The applicant was not in the payroll of the respondent when he was allegedly dismissed according to him by the respondent.

- He was approached by the NUPSAW representative at the recommendation of the Senior Lecturer – Mechanical Division Mr. Vuyo Mayana.

- The applicant was never issued with any appointment letter and never signed any contract of employment with the respondent.

- The applicant was also not issued with any termination letter or a dismissal letter by the respondent.

- The applicant for some reason known to him and his representative filled a dispute with the ELRC alleging that the applicant was dismissed.

Facts / issues in dispute

- Whether the applicants was dismissed by the respondent.

A BRIEF SAMMARY OF EVIDENCE ON DISPUTED FACTS

16. I must indicate again at this stage that this a unique type of a dispute so that any person perusing it or considering it can understand its uniqueness. In this dispute the applicant’s representative called 5 witnesses and the respondents did not call any witness.

17. These witnesses were the representative himself Mr. Sangolinye Ngqungwana, the applicant Mr. Mkhululi Mamase, Mr. Vuyo Mayana, Mr. Mbulelo Terrence Zilani and Mr. Ziyaad Dolley. Only the applicant and his representative testified that the applicant was dismissed and the other 3 applicant’s witnesses testified in favor of the respondent on all materiel facts.

18. At the beginning of the testimony of these witnesses I did warn the applicant and his representative about using or calling witnesses that will support respondent’s case when we had an opportunity to discuss the subpoena of the said witnesses.

19. Only the applicant and his representative believe that the applicant was employed and later dismissed but it is not clear from their evidence why they say the applicant was employed and later as they confirmed that:

- There was no formal recruitment process that led to the applicant’s alleged appointment.

- The applicant was recommended for the filling of the vacant post of a Lecturer.

- He was not appointed and was not issued with any appointment letter and that was not even said to him verbally.

- It is not clear from their evidence how the applicant was appointed and again how he was dismissed and the CEO or the Principal who has authority to appoint never made such appointment and never dismissed or terminated the applicant’s services.

20. The other 3 applicants witnesses gave a clear, coherent and corroborative evidence to the effect that:

- The 3rd witness Mr. Vuyo Mayana recommended the applicant to fill in a vacant position of a Lecturer in his Department.

- This was put to the attention of the applicant and his representative and the said witness warned that this should not create any expectation of employment.

- The matter was referred to the senior management Academic and the recommendation was not approved instead the senior management gave that responsibility to a Lecturer who was already in the employ of the respondent.

- That the applicant was never appointed by the respondent and that it follows that there can be no dismissal and in fact he was not dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

21. Section 185 (a) of the Labour Relations Act 66 of 1995 as amended provides that:

- Every employee has a right not to be unfairly dismissed.

22. The act recognizes three reasons for the termination of the employee’s services by the employer and these are the conduct of the employee, incapacity of the employee and the employer’s operational requirements. It is in dispute whether the applicant’s services were terminated or whether the respondent dismissed the applicant.

23. In terms of section 192 (1) of the Labour Relations Act 66 of 1995 as amended the applicant bares the onus to establish the existence of a dismissal. Once the dismissal has been established the respondent has the onus to prove that the applicants dismissal was fair in terms of section 192 (2).

24. It then follows that before the ELRC can look at the fairness or otherwise of the applicants alleged dismissal, the applicants must establish the existence of a dismissal as required by section 192 (1) of the Act. The applicant argued that he was unfairly dismissed by the respondent because there was no reason for the respondent to dismiss him.

25. The respondent’s representative argued that the applicant was not dismissed by the respondent and I agreed with the respondent’s representative that the applicant was not dismissed and in fact also not employed.

26. The applicant’s representative on the other hand argues that the applicant was dismissed and this argument is not based on evidence and is found to be improbably. It follows from the facts that the applicant was not dismissed and it must be said here that the applicant does not have a right to employment.

27. In making a finding on whether the applicant was dismissed or not I have to analyze this evidence on a balance of probabilities. It is not disputed that the applicant was never in the employ of the respondent at the time of the alleged dismissal.

28. I cannot even after hearing evidence in this matter understand why the applicant feel that he was dismissed when he was not even in the employ of the respondent.

29. The question I am required to determine is whether the applicant was dismissed by the respondent when all this and circumstances unfolded like this. Having considered the evidence led I find that the applicant have failed to provide credible evidence to substantiate his claim that he was dismissed.

30. In terms of section 192 (1) of the Act the applicant bares onus to prove that he was dismissed by the respondent and from the evidence that was led the applicants have failed to establish the existence of a dismissal.

31. From the argument above the applicant was not dismissed and in the circumstances I hereby make the following award.

AWARD

32. The applicant Mr. Mkhululi Mamase was therefore not dismissed by the respondent Port Elizabeth TVET College and for that reason I cannot proceed to enquire and determine the fairness or otherwise of his dismissal.

33. The applicant is therefore not entitled to any relief.


Signature:

Commissioner: Malusi Mbuli