ELRC311-20/21FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC311-20/21FS
Date of award: 23 September 2022

In the matter between:


Nthabiseng Augustina Jobo Applicant


And


Department of Education – Free State Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Nthabiseng Augustina Jobo (“the Applicant”) and Department of Education – Free State (“the Respondent”) was held on 15 September 2022 at Zastron Combined School in Zastron. The Applicant appeared in person and Adv. M Moteka; represented her and Mr. Vuyisile Gubuza, Deputy-Director: Dispute Resolution represented the Respondent.

2. This proceeding was conducted in English and was digitally recorded. The parties agreed to submit the heads of argument in writing on Wednesday, 21 September 2022. They both submitted.

Issues to be decided

3. I am first called to determine whether there was any employment relations between the Applicant and the Respondent for the period 01 January 2020 to June 2020. If I find that employment relations existed, the next issue to be decided is whether there was a dismissal. In the event the existence of a dismissal is proved, I am required to decide whether such dismissal was both procedurally and substantively fair. On the other hand, if no employment relations are found to have existed at the time of the alleged dismissal, the issue of the alleged dismissal falls.

Background to the dispute

4. The Applicant was employed by the Respondent as a temporary Educator (PL1) at Zama Primary School in Zastron on a fixed term contract from 01 October 2018 to 31 December 2018. The Applicant contract of employment was extended from 01 January 2019 to 31 December 2019. The Applicant assumed duty on the re-opening of the school in January 2020 without the authorization of the Respondent.

5. She continue to work until June 2020 without been remunerated. The Applicant did not receive the contract of employment for the period 01 January 2020 to 30 June 2020. The Applicant earned R262 899, per annum plus 37% in lieu of benefits. The Applicant alleged that she had the expectation that her contract of employment would be renewed from 01 July 2020 but the Respondent dismissed her. The Respondent alleged that the Applicant was employed on a fixed term contract, therefore, no dismissal occurred.

6. The Applicant referred an alleged unfair dismissal dispute to the Education Labour Relations Council (“the Council”). The Applicant alleged that the Respondent dismissed her on 01 July 2020 and her dismissal was both procedurally and substantively unfair. She sought to be permanently appointed and remunerated with effect from 01 July 2020.

7. The Applicant submitted a bundle of document that was marked bundle A, pages 1-87.

Survey of Evidence

Applicant

First Witness: Ms. Nthabiseng Augustina Jobo

8. The witness testified under oath that she was the Applicant in this matter. She testified that she was employed on the post of Ms. Mothai who retired. She assumed duty on 01 October 2018 without a contract of employment and she did not ask the school principal about her contract. She assumed duty on the re-opening of the school in January 2019 without a contract of employment. She once again did not ask the principal about her contract of employment for the year 2019. She was provided with the contract of employment during the middle of January 2019 as per “A4-A9”.

9. During the staff meeting in October 2019, the school principal informed all temporary educators including herself that their contracts’ of employment would be renewed automatically. She assumed duty on the re-opening of the school in January 2020 without a contract of employment. She was not bothered to report for duty without a contract of employment because it was normal for her to assumed duty without it. In the year 2020, the problem started when she was not paid her January salary. She went to the school principal to ask why she was not paid her salary. The principal replied by saying it was the problem of all the temporary educators but they would be paid. The school principal always assured her that she would be paid her salary.

10. She and other educator took an initiative to go to the Respondent district offices in Bloemfontein, to enquire about their salary. On their arrival at the district offices, they met the Respondent employee by the name of Thato. Thato informed them that the staff establishment of Zama Primary School for the year 2020 had an excess educators and they were not going to be paid. They went back to school and continue with their duties without been paid. Towards the end of June 2020, she was called to the principal office. On her arrival, she found the principal and the chairperson of the school governing body. The principal told her that the Respondent was delaying with her appointment and she must stay at home. The principal did not come back to her as promised till to date.

11. The contract of employment states that she would be permanently employed if the post she occupied not advertised within six (6) months. After the expiry of her six (6) months of employment, she did not ask the principal about her position been converted from temporary to permanent. She further stated that she worked from January 2020 to June 2020 without remuneration. She eventually received her salary for that period in January 2022. She had no knowledge why her contract of employment was not renewed on 01 July 2020.

12. Under cross-examination she stated that she was informed to stay at home whilst the Respondent was busy with her remuneration. If she was informed that her contract of employment was not going to be renewed, we would not be here today. She had the expectation that her contract would be renewed and be appointed permanently because she was appointed on a vacant post. The school principal in the staff meeting in October 2019, mentioned the names of the educators who were additional to the school staff establishment.

Respondent

First witness: Frans Kraalshoek

13. The witness testified under oath that he was familiar with the Applicant’s dispute. There must be a vacate and substantive position in order to appoint an educator. Document “A4” was the Applicant temporary appointment. An educator might be appointed permanently after six (6) months in terms of the collective agreement. He stated that the Applicant was temporarily appointed against a promotional post as per “A11-A12”, therefore, not qualified to be converted from temporary to permanent position.

14. If the school was having additional educators in their staff establishment, the contracts’ of the temporary educators would not be renewed. It was the responsibility of the school principal to inform temporary educators that their contracts’ would not going to be renewed because of the additional educators in their staff establishment.

15. Under cross-examination he stated that the Respondent employed him as a Deputy-Director: HR. He had no authority to sign the appointment letters of the educators. He confirmed that the Applicant was employed from October 2018. He confirmed that an educator who was employed temporarily on a vacant and substantive position for more than six (6) months, the school governing body must make a recommendation for that educator to be appointed permanently. In this matter, the Applicant was temporarily appointed against a promotional post and not on a vacant and substantive post. Temporary educator before she/he appointed must sign the PO20 form and that form would indicate which post an educator was going to be appointed.

16. The school governing body made a recommendation for the Applicant contract to be extended. He maintained that the Applicant was not qualified to be converted to a permanent post because she was appointed against a promotional post. He further stated that no educators’ position would be converted from temporary to permanent if that educator was in the possession of a post graduate certificate in educator. The educator must have a recognised teaching qualification before she/he could be permanently employed.

17. Under re-examination he stated that the Respondent extended the temporary post due to the school needs. He maintained that the temporary post would not be extended if the school staff establishment had additional post(s).

18. Under clarity questions he stated that the Applicant was temporarily employed for the period 2018 to 2019 against a promotional post as per “A11-A12”. The Applicant was not dismissed because she was appointed on a fixed term contract. The Applicant contract was not renewed in the year 2020 because of the additional educators on the school staff establishment.

Survey of Argument

Applicant

19. The Applicant representative submitted that this dispute was about unfair dismissal. The Applicant had the reasonable expectation for her contract to be renewed. The Applicant felt aggrieved by the Respondent’s failure to convert her temporary position to a permanent position. The Applicant did not sign any contract before she commenced working at Zama Primary School in October 2018 but she was remunerated. The Applicant contract of employment was extended until the 31st December 2019. In January 2020, the Applicant resumed with her duties and, nothing was ever communicated to her about termination of contract. The Respondent did not lead any evidence to the contrary.

20. The Applicant did not receive her 2020 January salary and the school principal assured her that she would be paid. The Respondent did not lead evidence to the contrary. Even the Respondent did not inform her that her contract of employment had come to an end. The Applicant was advised by the school principal to stay at home in June 2020 so as to enable the principal to resolve her salary problem. In 2021, this matter was heard in default and the Respondent applied for the rescission of the award and the default award was rescinded. The Respondent paid her remuneration for the year 2020 in January 2022.

21. Section 6(1)(b) of the Employment of Educators Act, 76 of 1998 (“Educators Act”) states that the appointment of any person, or the promotion or transfer of any educator in the service of a provincial department of education shall be made by the Head of Department. The Applicant evidence was not rebutted by the Respondent. It was clear that the procedure was not followed in the Applicant’s dismissal. The Applicant was not provided with the fair reason for her dismissal. The Applicant dismissal was both procedurally and substantively unfair and the costs should be granted against the Respondent.

Respondent

22. The Respondent representative submitted that this dispute was about unfair dismissal based on a legitimate expectation not being fulfilled. The Applicant did not qualify to teach at foundation phase. Zama Primary School had an excess educators in their staff establishment for the year 2020. The contracts’ of the temporary educators’ were not renewed in the year 2020 because of the excess educators in the school staff establishment.

23. The Respondent could not renew the contract when the post was not needed at the school. The Applicant failed to prove that there was a dismissal and such a dismissal was unfair. The Respondent paid her for the period January 2020 to June 2020 because the Respondent acknowledges the mistake made by the school principal who did not inform her that her contract was not renew. The fixed term contract was not renewed, therefore, no dismissal occurred.

Analysis of evidence and argument

Introduction

24. In every alleged unfair dismissal dispute, the Applicant party is required to establish the existence of the dismissal. Once that is done, the onus is on the Respondent to prove that the dismissal was fair. In this matter the dismissal is in dispute, therefore, the Applicant bears the onus to prove that she was indeed dismissed. Before the dismissal issue can be entertained, the issue of employer and employee relationship has to be dealt with first.

25. The Applicant alleged that she had the expectation for her contract of employment to be renewed on 01 July 2020 but the Respondent dismissed her. The Respondent alleged that the Applicant was employed on a fixed term contract until 31 December 2019 and her contract was not renewed in the year 2020. It is the Applicant evidence that she assumed duty on the re-opening of the school in January 2020 without the contract of employment. It is for this reason that it is necessary for me to first deal with the issue of an employer-employee relationship prior to dealing with the dismissal allegation. In discharging the onus the Applicant testified.

26. The primary dispute before me was about the alleged unfair dismissal after the Respondent failed to renew the Applicant fixed term contract. This dispute is not about the conversion of the Applicant position from temporary to permanent in terms of Section 6B of the Educators Act.

The following are brief reasons for the award:

Whether there was an employment relationship in 2020?

27. Section 3(1)(b) of the Educators Act states that the Head of Department shall be the employer of educators in the service of the provincial Department of Basic Education in the posts on the educator establishment of that department for all purpose of employment. Chapter 1 of the of the Educators Act defines an educators as any person who teaches educates or trains other person or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act.

28 Section 6(1)(b) of the Educators Act states that the appointment of any person in the service of a provincial Department of Basic Education shall be made by the Head of Department. Section 6(3)(a) of the Educators Act states that any appointment to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school. It is clear that the person who has the authority to appoint an educator at the public school is the Head of Department not the school principal or the school governing body. It is clear that the principal of Zama Primary School has no authority to appoint an educator at the school.

29. It is common cause that the Applicant assumed duty on the re-opening of the school in January 2020 without contract of employment. No evidence was led during the proceedings, whether or not the school governing body made a recommendation to the Respondent for the extension of the position of the Applicant to be extended for the year 2020. It is common cause that the Applicant was not remunerated for the service rendered for the period 01 January 2020 to June 2020.

30. It is clear that the Applicant dispute was based on the Respondent past practices when she was appointed. The school practices cannot supersede the Educators Act. In Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC), it was held that where an employee resumes for duty without written permission from the Department, such assumption of duties would not establish an employment relationship per se.

31. The Applicant signed a fixed term contract of employment with the Respondent for the period 01 October 2018 to 31 December 2019 as per “A4-A9”. It is the Respondent undisputed evidence that the Applicant contract of employment for the period 01 January 2020 to June 2020 was not renewed because the school staff establishment had additional staff. It is common cause that the Applicant was paid her salaries in January 2022, for the services she rendered in the year 2020 was irrelevant in this matter because she had no permission or employment contract when she resumed her duties in January 2020.

32. The Applicant failed to prove that there was an employment relationship between her and the Respondent in the year 2020. It is the Applicant version that the Respondent employee by the name of Thato informed her that she was not going to be appointed and paid because of the additional educators in the school staff establishment. The Applicant knew as early in the year 2020 that she was not going to be appointed and paid. The Applicant knew about her employment status even before June 2020. The only evidence at my disposal is that the Applicant contract was not extended in the year 2020.

Conclusion

33. Based on the evidence presented, it is clear that there was no employment relationship between the Applicant and the Respondent in the year 2020. In the absence of the employment relationship between the parties, there cannot be the dismissal. The Respondent does not need to prove the fairness of the dismissal as no dismissal occurred.

34. The Applicant representative only raised the issue of costs during the argument and by doing so, he denied other party an opportunity to have a say on that. I will not be able to deal with the issue of the costs without the parties having addressed me, therefore, the issue of the costs against the Respondent will not be considered.

Award

35. The Applicant, Ms. Nthabiseng Augustina Jobo, failed to prove the existence of the employment relationship with the Respondent.

Signature: 
Commissioner: Khuduga Tlale
Sector: Education