ELRC948-22/23EC

Case Number: ELRC948-22/23EC
Commissioner: Henk Jacobs
Date of Ruling: 05 June 2023

In the matter between


NAPTOSA obo Ncediswa Qhwazi
(Applicant)

And

Education Department – Eastern Cape
(Respondent)


Union/Applicant’s representative:


Mr A Adams

Telephone: 083 720 1354
Telefax:
E-mail: antona@naptosa.org.za

Respondent’s representative:
Respondent’s address: Ms A Slabbert

Telephone: 071 894 8607
Telefax:
E-mail: Ansie68lro@gmail.com

Details of hearing and representation

1. The arbitration hearing related to an alleged unfair labour practice dispute referred in terms section 186(2) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the offices of the Respondent, Gqeberha, on 22 May 2022.

2 The applicant, Ms N. Qhwazi, was represented by Mr A. Adams, an official from NAPTOSA The respondent, Education Department – Eastern Cape, was represented by Ms A Slabbert, a Labour Relations Officer employed by the Respondent.

3 The hearing was held in English and was digitally recorded.

4 Parties agree to file heads of argument by no later than 29 May 2023, both parties did so.


Issue to be decided

5. The issue to be decided is whether the Respondent committed an alleged unfair labour practice dispute in terms of section 186(2) of the LRA when the Respondent fail to pay the Applicant her salary as a substitute teacher for the period from 01 April 2022 to 30 September 2022.

Background to the matter

6. The Applicant referred a dispute to the ELRC pertaining to an alleged unfair labour practice regarding benefits, the matter was conciliated, conciliation was unsuccessful, and a certificate of non-resolution was issued.

7. The Applicant filed a request for the matter to be arbitrated.

8. The Applicants sought to be paid by the Respondent a salary for the period 01 April to 30 September 2022.

9. During the arbitration it was established as common cause that the principal never filed any application for a substitute educator to be appointed by teh Education Department - Eastern Cape, save for the application made that is reflected on page 14 of teh bundle of documents, dated 13 October 2022.

Applicants evidence

10. The Applicant testified that she has a Primary Teaching Diploma with 27 years of teaching experience, and she started to relieve at Siyaphambili Primary School on 01 April 2022.

11. The principal of the school phoned her on 06 April 2022 and requested her to be a substitute educator for a teacher who submitted a sick note for three months, she started to work on 07 April 2022. When she started, the principal signed a request for her to be paid by the Department of Education and indicate that he will submit it to the Department the next week.

12. She followed up on this from the principal and after not receiving any answer, she followed up from the Department of Education who informed her that no request or application was submitted for a substitute educator to be appointed.

13. She informed the principal that nothing was submitted, he indicated he will take care of the matter. The principal then informed her that the school will borrow her R3000.00 per month to allow her to come to school.

14. The Applicant further testified that she never signed a contract of employment with the School Governing Body (SGB) and was a substitute teacher for the period. During June, she enquired form the Department of Education about the request or application submitted by the principal and was informed that nothing was submitted.

15. Page 14 of the documents indicated that the principal only submitted the requestor application on 13 October 2022, hence she was paid from October to December by the Department of Education on 22 May 2023 for that period.

16. Under cross-examination, the Applicant confirmed that she was employed by the SGB prior to her commencing employment on 01 April 2022 and was paid R3000.00 by the SGB for March 2022.

Respondents evidence

17. Mr Mabongo testified that he is employed as the principal for Siyaphambili Primary School during 2022 and was the acting principal during 2021. The Applicant started to work during February 2022 after the school opened during January 2022, he became aware of a teacher that was on sick leave and asked the Applicant to assist.

18. From the onset, he told the Applicant that she will be an SGB employee until such time the post was approved. The Applicant was paid R3000.00 form February 2022 to December 2022. He called the Applicant and told her there was no budget for a substitute and that he will approach the Department of Education to appoint a substitute.

19. The R3000.00 paid to the Applicant was a salary and he was not aware of any loan arrangement.

20. Under cross-examination, Mr Mabongo confirmed that in terms of the PAM, he is the Department of Education representative and did submit all documents to request a substitute educator to the Department within 7 days of receipt of the sick note, and he did so during April as well.

21. Mr Mabongo further confirmed that he did submit all documents to the Department for the substitute educator to be appointed, but did not follow up, he was told there was no budget. There was also no contract between the Applicant and the SGB.

22. Mr Mabongo also confirmed that he did tell the Applicant that he will apply for a substitute educator to the Education Department, but that it was not approved. It was further conformed that if an educator is absent for more than 30 days, a substitute educator must be appointed.

Analysis

23. Section 186(2)(a) of the LRA states that an unfair labour practice means any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer and an employee relating to benefits.

24. It would be important to first determine whether an employment exist between the Applicant and the Respondent for the period in dispute. The Applicant in argument made reference to a reasonable expectation to be appointed by the Department of Education. The issue of a reasonable expectation cannot be applied in this instance, what should have happened is that the Applicant should not have commenced employment until an approval was signed for a substitute educator.

25. In a perfect world, that would have been the perfect way to go about it, however, the Education Department functions in a less than perfect environment which has as a result, a consequence such as the Applicants situation who had to render a service to the school for a wage less that the National Minimum Wage as determined from time to time.

26. It is common cause that the Applicant received R3000.00 form the SGB for the period, whether it be a loan or a wage, either way, it cannot be said that an employment relationship existed for the period in dispute between the Respondent and the Applicant.

27. It is trite that only the Head of Department may appoint an educator on a permanent or temporary basis as was the case in this instance during October 2022 when the Applicants appointment was approved. The principal has no authority to appoint any person on behalf of the Department of Education. On that basis, I must conclude that there was no employment relationship between the Applicant and the Respondent for the period in dispute. The Applicants dispute to be paid for the period in question does not fall under the ambit of an unfair labour practice dispute as envisaged in section 186 (2) of the LRA.

28. The Applicants relief in terms of the period she was not paid for, or not paid correctly, lies with section 69, or 73A of the Basic Conditions of Employment Act 75 of 1997, as amended, or the National Minimum Wage Act 9 of 2018, in a claim against the SGB for the period in question.

29. The Applicant in argument relied on a reasonable expectation that she would be appointed by the Department of Education, that arguments cannot stand in terms of an alleged unfair labour practice dispute. The Applicant was either appointed or not, if not, she cannot rely on an unfair labour practice dispute in the absence of an employment relationship.

30. In passing, it would be worth mentioning that the principal could have done better, he was a unreliable witness during the arbitration who lied under oath when he stated he made an application earlier for the Applicant to be appointed by the Department, when he clearly did not. It is sad to see that educators needs to work under such circumstances and fulfil such an important role in our society. It would be recommended that the Department of Education – Eastern Cape take action against the principal for his conduct during the arbitration and his negligence regarding the application for a substitute educator to be appointed.


31. The Applicant in argument raised that the issue of 37% in lieu of benefits which was not paid to the Applicant for the period the Applicant was appointed by the Respondent. This issue was never raised in opening, nor was any evidence presented on this issue by the Applicant during the arbitration.

32. It is however trite that such a claim would fall within the ambit of an alleged unfair labour practice dispute and that the Applicant would be entitled to refer a fresh dispute to the ELRC regarding the 37% in lieu of benefits.

33. I am bound to consider fact that was placed before me during the arbitration proceedings to arrive at a conclusion. It would be improper to consider this without allowing the other party an opportunity to rebut this. On that basis, the issue of the 37% in lieu of benefits is not properly before me for consideration. The Applicant may file a fresh dispute in this regard.


34. In light of the above, I find it appropriate to make the following award.

Award

35. The applicant, Ms Ncediswa Qhwazi, failed to establish that the respondent, the Education Department – Eastern Cape committed an unfair labour practice in terms of section 186(2) of the LRA.

36. The Applicant is not entitled to any relief.

Signature:

Commissioner: Henk Jacobs