ELRC 264-22/23 LP

Case Number: ELRC 264-22/23 LP
Part Time Senior Panelist: M.A. HAWYES
Date of Award: 16TH October 2022

In the ARBITRATION between


Mulalo Eunice Makhuvha
(Union/Applicant)

And

Limpopo Department of Education
( Respondent)


Union/Applicant’s representative: Mr Masimbi

Respondent’s representative: Mr. M. Matlou


DETAILS OF HEARING AND REPRESENTATION

1. The case was scheduled for arbitration online via Zoom on the 22nd September 2022 and finalized on the 6th October 2022. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 13th October 2022. The closing arguments were timeously received and my award now follows. Initially on 21st September 2022 the Applicant, Mulalo Eunice Makhuvha represented herself but later on requested the assistance of Mr. Emmanuel Masimbi, an attorney from the Univen Law Clinic. Masimbi then assisted her until the completion of the matter. Mr. M. Matlou, a labour relations official, represented the Respondent, Limpopo Department of Education.

ISSUE IN DISPUTE

2. Whether the Respondent committed an unfair labour practice dispute by failing to appoint the Applicant into the substitute post that she had applied for.

BACKGROUND TO THE ISSUE IN DISPUTE

3. The Respondent raised a point in limine that the Applicant had never been appointed into the substitute position that she had applied for. The Respondent can only potentially commit an unfair labour practice against an employee and not a non-employee.

4. The parties each utilized one bundle of documents which bundles were accessed electronically.

5. I mostly adopted an inquisitorial approach in dealing with this arbitration and the representatives mostly made submissions from the bar and submitted written closing arguments in amplification of their oral submissions.

SURVEY OF THE REPONDENT’S EVIDENCE AND ARGUMENT

6. The Respondent had advertised a fixed term contract (Substitute post) CS1 at Tswime Primary School which falls under the Nzhele Central Circuit Office. The advertised vacancy was for a substitute post for an educator who can teach English and Geography subjects.

7. The Applicant (Ms. M.E Makhuvha) and other candidates applied for the advertised post and amongst one of the candidates was Ms. M. Makhuvha.

8. The Applicant was not shortlisted because she did not qualify to meet the curricular needs of the post. The Applicant only qualified to teach one subject which was Geography and did not study English as a tertiary subject but only studied English communication skills. (See Applicant’s Bundle pg 13-15).

9. The other candidate Ms. M. Makhuvha was shortlisted for the vacant post, as she met all the requirements for the post. Furthermore, Ms. Makhuvha has a B.Ed. degree in Further Education (See Respondent’s bundle pg 19-21), whereas the Applicant has a Bachelor of Environmental Sciences and a Post Graduate Certificate in Education.

10. When the Respondent was inviting shortlisted candidates for an interview Ms. M. Makhuvha’s cell phone was unreachable and the resource person went through the list of candidates that had applied for the post and found the name of Ms. M.E. Makhuvha and erroneously concluded that because the two candidates had the same surname and the same initial that they were one and the same person and proceeded to shortlist the Applicant.

11. The Applicant was erroneously invited for an interview even though she was never shortlisted. The Applicant was scored under the erroneous impression that she was Ms. M. Makhuvha.

12. After the interview process, the interview package was taken to the District office for finalization. The appointment letter was issued in the name of Ms. M. Makhuvha with Persal no: 85496863. It is common cause that this is not the Persal number of the Applicant.

13. Before the mistake was discovered the Applicant rendered her services to Tswime Secondary School from the 20th May 2022 to the 21st June 2022 but was not paid any remuneration for her services.

14. The Respondent argued that the invitation for the Applicant to attend the interview was a bona fide error and that is why the appointment offer was never addressed to her but to Ms. Makhuvha and as such, the Applicant was never an employee of the Respondent.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT

15. It was argued on behalf of the Applicant that a contract of employment was concluded between the Applicant and the Respondent and that the Applicant worked for the Department of Education for the period from the 20th May 2022 to the 21st June 2022.

16. It was argued on behalf of the Applicant that the Respondent created a reasonable belief that she was employed for six months causing the Applicant to drop other interviews. Thus, the Respondent was bound by the agreement that they had concluded with the Applicant.

17. The Respondent’s acceptance letter (See Applicant’s Bundle pg 2) shows that the acceptance letter is for Mulalo Eunice Makhuvha which are the full names of the Applicant. The chairperson of the SGB, the principal of the school, circuit manager and the circuit coordinator all signed the Applicant’s assumption of duty. There was an offer of employment which the Applicant accepted, thus a contract of employment came into being.

18. It was argued that the Respondent’s point in limine should be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

19. The point of limine has to be decided upon with reference to a basic principle of the law of contract known as mistake. The contracting parties must each be fully aware that they are contracting with the correct party.
20. I find that the Respondent, due to a bona fide mistake, was under the impression that it was contracting with Ms M. Makhuvha whereas in fact it was contracting with the Applicant. The unchallenged reasons for the Respondent wishing to contract with Ms. M. Makhuvha and not the Applicant have already been set out in the Respondent’s evidence and argument.

21. Mistaken identity renders the contract void ab initio (void from the beginning). Thus no contract of employment ever existed or came into being between the Applicant and the Respondent.

22. This unfortunate state of affairs may still afford the Applicant with an opportunity to pursue a civil claim against the Respondent for unjustified enrichment (obtaining her teaching skills for one month for free) and damages but the Council has no jurisdiction to consider these matters.

23. I find that the Applicant failed to prove on a balance of probabilities that the Respondent ever legally employed her and thus it follows that it could never commit an unfair labour practice against her.

AWARD

24. The Applicant’s dispute referral is dismissed.