PSES428-17/18GP

ARBITRATION
AWARD

Case Number: PSES428-17/18GP
Commissioner: John M. Siavhe
Date of Award: 15 November 2022


In the ARBITRATION between


FLETCHER, ANTO DAVIDS
(Employee)

And

GAUTENG DEPARTMENT OF EDUCATION
(Employer)

DETAILS OF HEARING AND REPRESENTATION

[1] This is the award in the arbitration between Fletcheer, Anto Davids (the Applicant) and Gauteng Department of Education (the Respondent).

[2] The arbitration was held under the auspices of the ELRC in terms of section 191(1) [191 (5)(a)] of the Labour Relations Act 66 of 1995, as amended (the Act), and the award is issued in terms of section 138 (7) of the Act.

[3] The arbitration hearing was last heard on the 11th of October 2022, and in that session parties agreed to submit their arguments by no later than 31st October 2022.
[4] Siza Reuben Mbhalati appeared on behalf of the Respondent whereas Gregory Armstrong legally represented the Applicant.

[5] Both parties entered bundles of documents in the proceedings which I marked EE for the Applicant an ER for the Respondent, respectively.

[6] The first part of the proceedings was recorded digitally and I also took hand written notes.

PRELIMINARY ISSUE

[6] None

ISSUE TO BE DECIDED

[7] This is unfair dismissal dispute for unknown reason.

[8] Existence of the dismissal is not in dispute.

[9] The Applicant disputes the fairness of his dismissal on both procedural and substantive grounds. I am therefore called upon to decide on the fairness of the dismissal on both procedural and substantive grounds, in the event I find that the dismissal is unfair I would then determine and grant appropriate remedy in terms of section 193 of the Act.

BACKGROUND TO THE DISPUTE

[10] The Respondent initially appointed the Applicant as CS1 educator and was stationed at Willowmead Secondary School from 2013 until he was deemed discharged on 31 March 2018. The Applicant then sought alternative employment at Noordgesig Secondary Schoolwithout disclosing that he dismissed in terms of section 14 of Employment of Educators Act. Noordgesig Secondary School terminated his employment when they realised that he was not employable. It is this dismissal the Applicant is challenging on both procedural and substantive grounds. According to the Respondent there is nothing unfair in regard to the Applicant’s dismissal, that was by operation of law. The Respondent prayed that unfair dismissal dispute application should be dismissed.

[11] The Applicant’s case on the other hand is that his dismissal was unfair since it was not in accordance with fair procedures and was not for a acceptable or valid reason. He is disputing the dismissal at Noordgesig and not at Willowmead Secondary School. According to him section 14 of Employment of Educators Act 76 of 1998 does not apply to him because at the time he resigned whilst at Willowmead Secondary he was not a permanent employee of the Respondent. He prayed for reinstatement with retrospective effect.

SURVEY OF THE EVIDENCE AND ARGUMENTS

The Respondent’s case
A summary of the Respondent’s version as argued Siza Reuben Mbhalati is as follows:

[13] The Applicant was an employee of the Respondent stationed at Willowmead Secondary School with effect from 2013 until his resignation March 31, 2018. The Applicant resigned at the time the Respondent has already started with disciplinary action for alleged sexual relationship with a learner. The Respondent then invoked section 14(1)(c) read with (d) of Employment of Educators Act of 1998, which provides as follows:

An educator appointed in a permanent capacity who-

While suspended from duty, resigns or without permission of the employer assumes employment in another position shall, unless otherwise, be deemed to have been discharged from service on account of misconduct;

(d) an educator appointed in a permanent capacity who-
While disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position, shall unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct.
[14] According to the Respondent both provisions of Employment of Educators Act of 1998 apply to the the Applicant as he resigned at the time he was on suspension for alleged misconduct and the Respondent had already commenced with disciplinary action against him. The Respondent further argued with reference to persal print outs of the Applicant on pages 22 and 23 of RR bundle record the Applicant to have been converted into permanent position on probation (code27) on 16 July 2016, and again being converted to permanent position on 16 January 2017 (code 25). The Respondent dismissed the Applicant’s submission that the acting principal at Willowmead placed the Applicant under temporary educators because the principal has no authority to convert the educators. Persal print outs are most reliable. The Respondent further argued in dismissing the Applicant’s claim that he did not know the provision of section 14(1)(c ), had he known he would not have resigned, according to the Respondent ignorance of the law is not an excuse, that argument should not stand.

[15] The Applicant’s termination of employment at Willowmead Secondary was by operation of law. However, he employment at Noordgesig was on the grounds that it was later realised that he could not be kept at the school because he is deemed dismissed or deemed resigned educator, and when he applies for employment at any institution there are procedures to comply with, he was not employable. The Applicant fell into a category of employees that must be cleared first before they could be re-appointed. The Respondent informed the Applicant of its decision not to finalise his appointment with Human Resources.

The Applicant’s case

The Applicant’s version as argued Gregory Armstrong follows hereunder:

[16] He commenced his employment with the Respondent on 25 February 2013, stationed at Willowmead Secondary School as P1 Educator. Around October 2016 rumours were rife that the Applicant was in intimate relationship with a learner. The Applicant was ultimately placed on suspension pending an inquiry which never took place. He then resigned from the employment of the Respondent on 22 March 2017, in fear for his life and due to stress, trauma and the Respondence silence in regard to his matter. He did not know that the Respondent would record his resignation as ‘discharged by operation of law, if he had know he would not have resigned..

[17] The Respondent did not advice the Applicant what would happen if he resigned, that section 14 of Employment of Educators Act 76 of 1998 would be invoked. In August 2017 the Applicant secured employment at Noordgesig Secondary School. He taught English to Grades 9 and 10. The Applicant was unfairly dismissed from Noordgesig Secondary School on 13 September 2017 due to a discharge status on an enquiry report that the School obtained from the Respondent. There was no inquiry that preceded the Applicant’s dismissal.

[18] It is the Applicant’s case that before his resignation he was not permanently employed by the Respondent he could have been on probation and the Act does not talk if dismissal of educators on probation. Therefore the Applicant could not have been dismissed on operation of law. Mr Kenneth Coetzee’s affidavit confirms the Applicant’s claim that at the time he resigned from Willowmead Secondary School he was a temporary educator. If the Commissioner or panellist find that he was permanently appointed or converted at the time of his resignation, he was not informed about that conversion. It is further argued that the Respondent failed to apply the audi alteram partem principle which is a cornerstone in labour law. The reason for his dismissal was not properly investigated. Failure by the Respondent to comply with the procedural fairness entitles the Applicant reinstatement with back pay and or maximum compensation.

[19] Lastly the Applicant argued legal costs due to the length and duration that the matter has taken and how the Respondent has opposed or dealt the Applicant’s dispute and the Labour Court process, and further noting that this matter has been on-going since 2017 at the expense to the Applicant. The dilatory approach of the Respondent should be punished.

CLOSING ARGUMENTS

[20] Both parties were given opportunity to argue their cases and copies of the arguments are filed.


ANALYSIS OF EVIDENCE AND ARGUMENT

[21] This is unfair dismissal dispute for unknown reasons at Noordgesig Secondary School, not at Willowmead Secondary School. It is however common cause that the Applicant was first employed by the Respondent, and was stationed at Willowmead Secondary School with effect from 2013 until his resignation on 22 March 2017. The Applicant’s termination of employment at Willowmead Secondary School was not challenged or disputed. According to the Respondent, since the Applicant was a permanent educator at Willowmead Secondary School, and was on suspension when he resigned and further that the Respondent had not yet finalised the disciplinary inquiry, they invoked section 14 (1) (c ) and (d) of Employment of Educators Act 76 of 1998, in terms of which the Applicant’s dismissal falls under deemed dismissed educator. For the reasons above, any argument challenging the fairness of the Applicant’s dismissal at Willowmead Secondary School would not be relevant in this dispute, and it is not upon me to make any pronouncement on the fairness thereof. I think the Applicant’s arguments that he was not advised in writing that the Respondent invoked section 14 of Employment of Educators Act 76 of 1998, and also that he was a temporary educator, would have been relevant if he challenged or disputed his dismissal at Willowmead Secondary School.

[22] It is further common cause that the Applicant was appointed and was engaged at Noordgesig Secondary School, after his termination of services or dismissal at Willowmead Secondary School, and also that there came a time when the school discontinued the Applicant’s engagement. It is this discontinued engagement of the Applicant at Noordgesig Secondary School that has become the subject matter of these proceedings. The Applicant’s argument is that the termination of his services at Noordgesig is both procedurally and substantively unfair.

[23] It is the Respondent’s argument that the Applicant’s discontinuation of his engagement at Noordgesig Secondary School is both procedurally and substantively fair, in that the same principal that engaged him and allocated him English subject to teach in Grade 9 was the same person that sat down with the Applicant and informed him of the Respondent’s decision to stop him. That by itself in my view afforded the Applicant opportunity to state his case, audi partem principle was applied.

[24] As for the reasons for the termination or discontinuation of his engagement, the Respondent’s argued that according to information from HR the Applicant’s dismissal at Willowmead Secondary School was in terms of section 14 of Employment of Educators Act 76 of 1998, which makes him unemployable until he has met some conditions in Government Notice Number.44433 on Prevention of Re-Employment of Former Educators Discharged or Deemed Discharged for Misconduct or Deemed Resigned, like period of prevention of the re-employment, and application requirements in the form of clearance certificate for him to be re-employed.

[25] In the totality of the circumstances it is my finding that the Respondent successfully discharged its onus to prove, on the balance of probability that the Applicant’s dismissal was in accordance with fair procedure, that session with Noordgesig Secondary School Principal afforded the Applicant opportunity to state his case, there was no need for it to be formalised and be recorded as the Applicant expected, and the dismissal was for fair and valid reasons, the Respondent would not be expected to breach its Regulations as showed above; I therefore award as follows:

AWARD

[26] The Applicant’s dismissal by the Respondent is both procedurally and substantively fair. The Applicant is not entitled to prayed for relief.

[27] The Applicant’s unfair dismissal application is dismissed.

[28] No cost orders.

Thus done and signed at Johannesburg.

Panellist: John M. Siavhe