ELRC741-20/21NW

Panellist: Themba Manganyi
Case No.: ELRC741-20/21NW
Date of Hearing: 27 September 2022
Date of Award: 27 September 2022

In the Inquiry by Arbitrator Hearing between

MMAPASEKA TSATSINYANE APPLICANT

and

DEPARTMENT OF EDUCATION – NORTH WEST RESPONDENT


Applicant’s representative: Self


Respondent’s representative: In default


Details of hearing and representation

1. The Applicant, Ms Mmapaseka Tsatsinyane, referred an alleged unfair dismissal dispute to the Education Labour Relations Council (“the Council”) in terms of section 191(1) of the Labour Relations Act 66 of 1995 (“the LRA”). The matter was set down for an arbitration hearing on 27 September 2022 via Zoom Platform.

2. The Applicant joined in via Zoom at the scheduled time of 09h00 and she represented herself. There was no attendance on behalf of the Respondent, the Department of Education – North West, despite being properly served with the notice of set down for today’s proceedings. I proceeded with the proceedings in default and the reasons thereof will be dealt with herein below. The proceedings were digitally recorded and the recording thereof was retained by the Council.

Issue to be decided

3. I have to determine whether or not the Applicant was dismissed and if I find that she was dismissed, I have to determine whether or not her dismissal was substantively and / or procedurally fair or both.

4. I also have to determine the appropriate relief if I find that the Applicant’s dismissal was either substantively or procedurally unfair or both. The Applicant sought retrospective reinstatement as a relief.

Background

5. The Applicant was employed as a PL1 Educator in March 2015. At the time of her alleged dismissal, she earned a salary of R18 731, 00 per month and she was placed at Methusele Primary School. The Applicant alleged that she was dismissed on 28 January 2021. The Applicant was appointed as a temporary Educator on a one (1) year fixed term contract that was renewed yearly since her appointment. She stated that her contract was to be converted to a permanent contract in March 2021 as Collective Agreement no 04 of 2018.
Preliminary issue

6. Mr Martin Keetile (“Keetile”), from the Respondent, filed a request for postponement on 26 September 2022 at 18h57 citing that he was the Respondent’s representative and that he was booked off sick from 26 – 30 September 2022. Mr Abram Phokobye, the Council’s Case Management Officer, responded to the request for postponement on 27 September 2022 at 08h28 stating that the application for postponement would be dealt with by the Commissioner as it was filed after close of business. During these proceedings, the Applicant indicated that she was opposed to the request for postponement.

7. Section 138(5) of the LRA stipulates that if a party to the dispute fails to appear in person or to be represented at the arbitration proceedings, and that party:-
(a) had referred the dispute to the Commission, the commissioner may dismiss the matter; or
(b) had not referred the dispute to the Commission, the commissioner may:-
(i). continue with the arbitration proceedings in the absence of that party; or
(ii). adjourn the arbitration proceedings to a later date.

8. Clause 16.6 of the Council’s Constitution: Part C: Dispute Resolution Process also echoes the sentiments of the prescripts of section 138(5) of the LRA. In the Labour Court judgment of Super Group Trading Honorable Leslie AJ had this to say at par. 8: ‘ it is trite that a postponement is not simply there for the taking. A proper case must be made out for the indulgence sought, by the party seeking it’.

9. I am mindful that there might be compelling circumstances that might render it impractical or impossible for a party to a dispute to attend the proceedings due to a number of reasons, including ill health. However, it remains the duty of that party to ascertain whether the postponement as requested was granted or not. In this case, Keetile sent through a request for postponement to the Council and the Applicant, then decided to stay away from the proceedings without following up on whether his request was granted or not. I find his conduct to be not in keeping with the spirit of the LRA of expeditious dispute resolution.

10. I hold a strong view that any other representative could have been assigned to launch this postponement request on behalf of the Respondent. Unlike for the Respondent to regard the postponement as something to which it was entitled as of right. In the premise, I find that the Respondent was in willful default of these proceedings. Hence, I proceeded in default.

Summary of evidence and arguments

11. The Applicant submitted that the Acting Principal called her telephonically on 28 January 2021 to inform her that she must no longer report for duty as her contract was terminated. She stated that she was not given any letter of termination to this effect. She testified that she received Circular 70 of 2022 dated 10 December 2020 wherein it was stated that the termination letters issued to temporary teachers who qualify to be made permanent in terms of ELRC Collective Agreement 04 of 2018 must be withdrawn. The circular further stated that the contracts of temporary teachers appointed against promotional posts must be extended until 31 March 2021. She stated that she expected that her contract would be converted to a permanent contract. She submitted that she was still unemployed and that she sought retrospective reinstatement as a relief for her unfair dismissal.

Analysis of evidence and arguments

12. Section 192(1) of the Labour Relations Act 66 of 1995 (the LRA) places the onus on the employee to establish the existence of a dismissal. Once that has been established, section 192(2) of the LRA places the onus on the employer party to prove on a balance of probabilities that the dismissal was for a fair reason and that a fair procedure was followed, with due regard to the standard of the Code of Good Practice: Dismissals as contained in Schedule 8 to the LRA (the Code).

13. I only have the Applicant’s version before me and I do not have any reason to disbelieve her version in the absence of a contrary version from the Respondent. The Respondent waived its right to prove on a balance of probabilities that the dismissal was effected in accordance with a fair procedure and for a fair reason.

14. The Applicant’s unchallenged version was that she was issued Circular 70 of 2020 in December 2020 and that she had expectations that her contract would be converted from that of a temporary educator to a permanent contract. However, she was surprised when she got a call from the Acting Principal on 28 January 2021 informing her that she must not report for duty because her contract was terminated. Clearly, this form of termination is not in accordance with the prescripts of schedule 8 Item 4 of the Code of Good Practice: Dismissal. I therefore find that the dismissal was procedurally unfair.

15. Section 188 of the LRA stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee’s conduct, capacity or the employer’s operational requirements. As already indicated herein above, the Respondent did not attend these proceedings. It therefore follows that the Respondent could not discharge its burden of proof that the Applicant’s dismissal was for a fair reason. Consequently, I find that the dismissal was substantively unfair.

16. The Applicant sought retrospective reinstatement as a relief. Section 193 of the LRA provides reinstatement as a primary remedy unless:-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.

17. Obviously, there were no exclusions that were brought to my attention that would preclude me from awarding the Applicant what she desires. I therefore, find it just and equitable to reinstate the Applicant in her former position without any loss of benefits.

Award

I make the following award:
18. I find that the Applicant, Ms Mmapaseka Tsatsinyane, succeeded in establishing the existence of a dismissal. I further find that the Applicant’s dismissal was procedurally and substantively unfair.

19. I order the Respondent, the Department of Education – North West, to reinstate the Applicant, Ms Mmapaseka Tsatsinyane, to her previous position of a temporary educator on the same terms and conditions that existed prior to her dismissal. Considering that the Applicant’s contract was renewed on previous occasions on similar terms and conditions, I find it just and equitable to order the Respondent to renew her contract from the date of her dismissal. The Applicant must report for duty on 17 October 2022.

20. I further order the Respondent, the Department of Education – North West, to pay the Applicant, Ms Mmapaseka Tsatsinyane, an amount of R18 731, 00 X 21 months = R393 351, 00 (three hundred and ninety three thousand three hundred and fifty one rands only) in back pay on or before 14 October 2022.


Arbitrator: Themba Manganyi