ELRC106-22/23EC

Panelist: Jonathan Gruss
Case No.: ELRC106-22/23EC
Date of Award: 25 December 2022

In the ARBITRATION between:

NAPTOSA obo Nomthanda Mlotya
( Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Mr Adams
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Respondent’s representative: Absent
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DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held at the premises of the Respondent, Department of Education: Eastern Cape at their Head Office in Zwelitsha on 9 December 2022. The proceedings were electronically recorded. The applicant, Nomthanda Mlotya at the arbitration was represented by Mr Adams, an official of NAPTOSA, a registered trade union. The respondent, was not represented at the arbitration and therefore absent. At the conclusion of arbitration, I requested the applicant’s representative to submit written closing arguments by no later than 16 December 2022 to address me as to whether an employment relationship between the applicant and the respondent came into existence. The applicant’s representative complied with my request and filed written arguments before said date.

2. This matter was scheduled for hearing on no less than three occasions, on the first occasion 25 June 2022, the respondent experienced technical difficulties in participating with a virtual arbitration. On the second occasion 19 September 2022, that was a face-to-face hearing, the respondent’s representative Mr Ngwendu failed to attend the arbitration and on the third occasion, 11 November 2022 the parties sought an indulgence in attempt to resolve the referred dispute. It was reported that the Deputy Director General for the respondent had undertaken to look into the applicant’s matter as well as her intergovernmental transfer from the Northern Cape to the Eastern Cape. Nevertheless, hoping that the dispute would be resolved the parties did agreed that should there be no resolution in settling the dispute , the arbitration would continue on 9 December 2022 at the respondent’s head office. Mr Ngwendu specifically agreed with this date. When the arbitration was due to commenced, Mr Ngwendu was nowhere to be found, attempts to reach him telephonically was unsuccessful in that his phone was off. After consulting the ELRC I chose to proceed with the arbitration on a default basis.

ISSUE TO BE DECIDED
3. I am required to determine whether the applicant was dismissed and if found that she was dismissed I must find whether the dismissal was both procedurally and substantively fair.

BACKGROUND TO THE ISSUES

4. This dispute is unique in that an intergovernmental transfer is central to the dismissal dispute and the possibility as it was argued, the inability of the respondent as relates to persal to give effect to the transfer. The applicant claims that after seeking a transfer from then Northern Cape Department of Education to the Department of Education: Eastern Cape, she was released by the Northern Cape Department of Education and she was told by officials employed by the respondent to report for duty and take up her post. This she did.

SURVEY OF EVIDENCE

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

APPLICANT’S EVIDNECE

6. The applicant, Ms Nomthanda Mlotya testified under oath to the following effect.

6.1 She started teaching in 1993 and her first place of employment was in the Northern Cape at SS Matikani Primary School as a post level I educator. She started teaching at Ngundle JSS on 1 September 2021. On 10 May 2022 she was phoned by Ms Mzanywa to come and fetch a letter of transfer at the district office situated in Cofimvaba. The letter advised her that her transfer application had been rejected.
6.2 When she reported to her new school, Ngundle JSS on 1 September 2021 this was on instruction of the principal of the school. She completed an assumption of duty form confirming that she reported for duty. On 29 June 2021 she was released from her school in the Northern Cape by her circuit manager in the Northern Cape who completing the necessary documentations. Subsequent to her taking up a post in the Eastern Cape she attended IQMS training at Tsolo. She also attended a workshop for foundation phase teachers held also in Tsomo in Chris Hani East District. She attended this workshop on instruction of principal. During December 2021 she did the scheduling and report cards for Grade 1 learners and she also met with the learners parents. When she arrived at the school she was welcomed by the schools SGB.
6.3 On 10 May 2022, her principal phoned her and informed her that he had spoken to the circuit manager who said that she must return to the school. This was after she was told to stop teaching in that her transfer was unsuccessful. She did not return in that the union told her not to report to the school without an appointment letter. She did not receive an appointment letter.
6.4 Had the principal at her new school not have honed her prior to reporting for duty on 1 September 2021 she would not have reported at the school and would have continued teaching in the Northern Cape.
6.5 Her salary was stopped in September 2022 by the Northern Cape Department of Education and someone had already been appointed in her post in the Northern Cape as from April 2022.

7. Mr Tanduxolo Stemele testified under oath to the following effect.

7.1 He is the principal at Ngundle JSS. During July 2021 the foundation phase teachers at his school retired and for the period July 2021 to 1 September 2021 no substitute teacher were appointed for the school.
7.2 Since 10 May 2022 he has been unable to find a suitable foundation phase teacher and the post is still vacant. As at 21 June 2021 there were two vacant post at the school and currently there is only one post vacant and that is a foundation phase educator. On 29 September 2021, the SGB recommended that the applicant be appointed as a Grade 1 educator. This recommendation was informed and supported in that it was almost a year that the learners in Grade1 had no teacher in front of them.
7.3 Fortunate, as from 5 September 2021 the applicant was released by the Northern Cape Department of Education in terms of an inter-provincial transfer. The receiving institute, namely Ngundle JSS in terms of the inter-provincial transfer application was recommended by both him as the principal and SGB of Ngundle JSS, the transfer was also recommended by the circuit manager, the deputy director HRA & P and the district manager on 21 June 2021. After the applicant arrived at her new school, he instructed her to attend a workshop for foundation phase educators.
7.4 The respondent has failed poor children from rural areas when considering the vacant post of foundation phase at Ngundle JSS is still vacant and he seeks that the applicant returned to the school in that she is a good teacher. Currently they do not have a foundation phase teacher at the school.
7.5 He was instructed by the circuit manager, Mr Nkomo to contact the applicant so that she could report for duty on 1 September 2021.

8. Mr Siqhamo Nkomo testified under oath to the following effect.

8.1 He has been a circuit manager for the past 16 years. Before that he was a principal for 19 years. He is aware of the transfer policy and processes and as it relates to the applicant, this was his first interprovincial transfer. He gave instructions to Mr Stemele to instruct the applicant to report for duty. The instruction was after he was informed by Mr Stemele telephonically that the applicant had a transfer letter from the Northern Cape Department of Education releasing her. As per instructions, the applicant signed the assumption of duty letter, confirming her reporting for duty at Ngundle JSS.
8.2 As it relates to page 14 of the bundle, the recommendation to approve the applicant’s transfer was signed by Mr Yotifi who is also circuit manager. Mr Dwadwa, who is his manager sign the recommendation form on 21 June 2021. They wanted the applicant to start on 1 August 2021 but she could only start on 1 September 2021. The necessary documentation were submitted to HR and they accepted the documentation. He went to HR at the beginning of October 2021 to ascertain whether the applicant’s transfer had been captured. He was told that they were busy processing the documentation.
8.3 When the applicant was told to stop teaching, he was informed that the transfer was not approved and that they must get a temporary educator. He was not happy with this in that the Superintendent General (SG), the Head of Department was aware that the post in question was vacant for some time and the SG failed to post an additional educator at Ngundle JSS. The school cannot find a foundation phase educator in that there are no foundation phase educators who are available. Education is a right of a child but it does not occur at rural non-paying fee schools.
8.4 From his assessment, the HR at the district office is ineffective in that they did not attend to the paperwork and they kept on losing documentation thereby not finalising the applicant’s interprovincial transfer. As it relates to the pool of educators, there were no foundation phase educators who were available that is why he recommended the applicant’s interprovincial transfer and instruct the applicant to report for duty.
8.5 Considering that the applicant reported for duty as instructed by him and communicated to the applicant by the principal there had not been any consequence management against either him nor the principal.

ANALYSIS OF EVIDENCE AND ARGUMENT

9. In determining whether the applicant was an employee of the respondent I have been referred to Section 213 of the LRA to the definition of an employee. I have also been referred to the decision of SABC v McKenzie (1991) 20 ILJ 585 (LAC) where the Labour Appeal Court identified the following distinguishing characteristic in respect of an employment relationship versus an independent contractor. It was argued that it is clear from the judgement that the applicant met the definition of employee as envisaged in terms of section 213 and 200A of the LRA. In terms of the judgement, the objective of a contract of service is to render a personal service by employee to employer. The servers are the object of the contract. According to contract of service, the employee will typically be at the beck and call of the employer to render his personal services at the behest of the employer. Services to be rendered in terms of contract of service are at the disposal of the employer. The employee is insubordinate to the employer. He is obliged to obey the lawful commands, orders or instructions of the employer who has a right of supervising and controlling him by prescribing to him what work he must do as well as the way it is to be done.

10. The transfer terms of section 8(2) of the Employment of Educators Act, 76 of 1998 was approved by the School Governing Body on 21 June 2021. It was further proved by the circuit manager, CES: management and governance and the district director also on 21 June 2021. It was argued that the speedy approval by the district is an indication of the need for the school to secure an educator for grade 1 learners at Ngudle JSS as they were without a foundation phase educator for a long period.

11. The applicant was instructed by her principal and the circuit manager to report for duty and tender her services at Ngudle JSS. Based thereon, the applicant relocated to the Eastern Cape and started teaching on 1 September 2021, the applicant continued teaching until she was told on 10 May 2022 to stop teaching.

12. As alluded to in the introductory portions of this award, central to the dismissal dispute is an inter-provincial transfer. During the period up until September 2022 the applicant was paid her salary by the Northern Cape Department of Education. As explained by Mr Adams, the applicant’s representative as I understand from other monetary disputes, that after a transfer physically takes effect, the province from where the educator comes from will continue paying that educator until the necessary paperwork is completed by the receiving province in order for the educator and in this case, the applicant to be transferred on persal. As soon as this occurs the receiving province would reimburse the province from where the educator stems from for remuneration already paid to the educator. This is why after the applicant started working at Ngudle JSS she continued to receiving salary from her previous employer. As I understand from Mr Adams the stumbling block in this whole ordeal is because the respondent lacks the expertise to process an interprovincial transfer. To put it in simple terms, according to Mr Adams there’s no one still employed and or competent in the Eastern Cape to transact the inter-provincial transfer on Persal.

13. Considering the fact that the applicant was instructed to report for duty on 1 September 2021, upon her arrival she was sent for IQMS training and attended the workshop for foundation phase educators and she continued tendering her services subject to the control and supervision of the respondent through the principal and the circuit manager. There was no consequence management implemented against the circuit manager and the principal due to them instructing the applicant and allowing her to tender her services. The respondent appears to have after the fact turned down the applicant’s interprovincial transfer after they were aware that she was tendering her services and teaching at Ngudle JSS. The respondent more specifically the SG is vicariously liable for the conduct of his officials namely Mr Semele and Mr Nkomo. I therefore accept considering the evidence tendered that is supported by documentary evidence that the applicant was for all intents purposes an employee of the respondent and when she was told to stop teaching on 10 May 2022 thereby she was dismissed by the respondent. I only have the applicant’s version, the explanation why the applicant’s transfer was unsuccessful considering the evidence of both Mr Semele and Mr Nkomo is factually flawed. Mr Nkomo testified considering the fact that the district office falls within a rural area, there are no foundation phase educators available and that is why the post had been vacant for a long time. I accordingly must find the dismissal of applicant was both procedurally and substantively unfair.

14. The applicant as well as other witnesses, the principal and the circuit manager seeks for the applicant to be reinstated to the post of foundation phase grade 1 educator at Ngundle JSS. I see no reason why I should not grant such relief. As per the applicant payslip she earns per month a basic salary of R32 260.50 and considering that she last received her salary in September 2022 it would be just and equitable that the reinstatement should be retrospective.

15. I therefore make the following award.

AWARD

16. The applicant, Nomthanda Mlotya was dismissed by the respondent, Department of Education: Eastern Cape. The dismissal is both procedurally and substantively unfair.

17. The respondent is ordered to retrospectively reinstate the applicant as a foundation phase educator at Ngudle JSS on terms and conditions of employment no less favourable that existed prior to the interprovincial transfer as from 10 May 2022. The applicant must tender her services Ngudle JSS when the school opens on 11 January 2023. The respondent is further ordered to pay the applicant back-pay for the period September 2022 to December 2022 in the amount of R129 042.00 (R32260.50 X 4) to be paid by no later than 31 January 2023.

Name: Jonathan Gruss
(ELRC) Arbitrator