ELRC957-22/23EC

Panelist: Jonathan Gruss
Case No.: ELRC957-22/23EC
Date of Award: 6 August 2023

In the ARBITRATION between:

Nombasa Abigail Nginda
(Applicant)

and

Department of Education: Eastern Cape
(Respondent)

Applicant’s representative: In person

Respondent’s representative: Mr Hena

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 District Office in Mdantsane on 28 July 2023. The proceedings were electronically recorded. The applicant, Nombasa Abigail Nginda conducted her own representation. The respondent, was represented by Mr Hena, an assistant director labour relations. The parties agreed to submit written closing arguments by no later than 4 August 2023 and have done so.

ISSUE TO BE DECIDED
2. I am required to determine whether the dismissal of the applicant was procedurally and substantively fair.

BACKGROUND TO THE ISSUES

3. The following were recorded at the commencement of the arbitration as common cause:
3.1 The applicant prior to her receiving a termination letter on 17 January 2023 was initially employed as a temporary educator on 2 August 2022. As a temporary educator the applicant was placed at Vuuhambe Special School in Mdantsane. Her fixed term contract would have terminated on 31 December 2022.
3.2 On 14 October 2022 the respondent issued a letter to the applicant wherein she was made permanent in terms of ELRC Collective Agreement 4 of 2018.
3.3 During the period 15 December 2022 to 16 January 2023, the schools were closed due to school holidays.
3.4 The applicant prior to her dismissal earned R 34 770.98 per month as a post level 1 educator.
3.5 The applicant during the period 1 April 2002 to June 2013 was employed by the respondent at St Charles Sojola Secondary School. The applicant resigned on 30 June 2013.
3.6 In terms of HRM Circular No.26 of 2016 the re-appointment of educators after a break of service in either substantive posts or as substitute educators is to be approved by the Head of Department and under no circumstances must educators who are returning after a break of service be allowed to assume duty without the necessary approval of the Head of Department.

4. According to the respondent, HR made a mistake in appointing the applicant to a permanent status in that the applicant had previously resigned and her re-appointment on a permanent basis should not have been approved by the Head of Department.

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.

RESPONDENT’S EVIDENCE

6. Ms Ntondikayise Ngoqo testified under oath to the following effect.

6.1 She is employed as a HR personnel officer by the respondent.

6.2 As it relates to Collective Agreement 4 of 2018, the Resolution refers to Chapter 3 of the Employment of Educators Act and in particular to the general principles set out in Section 6(3) of the Employment of Educators Act, that provides that any appointment, promotion or transfer to a post establishment of a public school must be made on the recommendations of the Governing Body of that school. Section 6B of the Employment of Educators Act provides that the Head of Department may, after consultation with the Governing Body of a Public School, convert the temporary appointment of an educator appointed to a post on the educator establishment of the public school into permanent appointment in that post without the recommendation of the Governing Body.

6.3 As it relates to the termination letter she, Ms Ntondikayise Ngoqo, is the author of that letter and it was signed by the then acting Deputy Director, Ms Gysman. According to the letter and the records at the disposal of the respondent, the applicant had previously been employed by the respondent as a permanent educator since 1 April 2004. The applicant’s services were terminated on 30 June 2013 due to her resignation. The letter further makes reference to HRM circular 26 of 2018. When considering the re-appointment of educators with a break in service, it must be noted that in terms of relevant prescripts, the Department of Education is obliged to give preference to other applicants who comply with the prescripts required for appointment and young entrants to the profession, in particular over persons who have already had the opportunity of a career in education. After a break in service, a fully motivate request is required for the reappointment of educators. Consequently, the reappointment of a previous resigned educator in either a substantive post or as a substitute educator must be approved by the Head of Department. For the above-mentioned reasons, the letter advises the applicant that she is not expected to resume her duties in 2013 according to the Collective Agreement.

6.4 Under cross examination, it was suggested to the witness to say it was discovered that the applicant previously resigned was wrong, this fact was declared upfront when the applicant applied to be a temporary educator. The witness responded that according to the file there was nothing in the file that says that the applicant previously was employed and then resigned.

6.5 The witness was unaware of the communication the applicant alleged she had on 7 November 2022 when she spoke to the District Manager, Mr Mabece, about the placement of her son in grade 12. The District Manager indicated that he did not think that her position was permanent. The applicant further informed the witness that when returning back to work on 9 November 2022, Mr Mabece wanted to know how she got into the school. The witness emphasised that she was not aware of this interaction.

6.6 The witness indicated that the applicant’s school should have informed the District Director that the applicant had previously resigned. However, the witness emphasised that their office deals with the files of 6000 educators and it is possible that such information may have been misplaced. The witness was asked whether it was her fault that the respondent elected to terminate her contract. The witness’ response was that they should have made a submission to the Head of Department. The witness could not explain why the respondent did not elect to seek the Head of Department’s approval and indicated that she was not involved in that process.

6.7 It was suggested by the witness that the current District Director used to be the EDO of her school and during July 2013 the individual proposed romance to her and because she turned his advances down this amounts to a quid pro quo sexual harassment. The witness was unaware of this.

APPLICANT’S EVIDNECE

7. The applicant testified under oath to the following effect.

7.1 She was informed on 17 January 2023 of her dismissal in that on 16 January 23 she visited the HR unit at the District Office and enquired about her benefits such as medical aid, housing allowance and pension and the person assisting her told her that she could not assist her in that according to the system her contract had expired on 31 December 2022. The person assisting her was referring to her appointment as a temporary educator. She was told that a letter would be given to her by the principal.

7.2 However, on 17 January 2023 her Principal informed her that he had a letter of termination for her. The principal informed her that it was handed to him whilst he was attending a meeting at the District Office on 16 January 2023. At the same principal’s meeting according to her principal they were told not to appoint temporary educators. There was no pre-dismissal meeting held informing her of the processes. She was not given the right to reply. As far as she is aware she committed no misconduct on her part and there was no poor work performance or just operational reason to terminate the contract. According to her letter of appointment the only condition her appointment letter refers to is in paragraph 3, where it speaks about misrepresentation as a just reason to terminate the contract. She made no misrepresentation and therefore she seeks her job back.

7.3 Under cross-examination, the applicant expressed a view that before the District Director issued the termination letter she should have been afforded the opportunity for the Head of Department to reconsider the decision to terminate her employment. As relates an application form “resigned educator employment application form for approval”, this blank form was attached to the termination letter for reference purposes indicating what should have been done. When she received this form that was attached to the termination letter, the first time that she ever had sight of such a form, this form was not completed by her prior to appointment as a temporary educator, neither was it completed prior to the respondent permanently appointing her. The respondent according to applicant was in possession of her CV when she was appointed as a temporary educator and therefore they ought to have been aware that she had previously been employed by the respondent.

ANALYSIS OF EVIDENCE AND ARGUMENT

8. The existence of the dismissal is not in dispute. The applicant’s stance as confirmed by the arbitration award of Nomphelo Majongile and the Department of Education Case number ELRC647-21/22EC dated 29 August 2022, a case identical to the applicant’s case. In that matter Enslin A held at [25.] “I am further guided on this issue by the Public Service Commission’s “Guide to correct an irregular appointment”, dated June 2018. It gives a non-exhaustive list of actions and or omissions that will render an appointment irregular. The last point listed reads as follows “action/decision that are not in accordance with the delegation of authority.” The irregular appointment or action of the respondent can only be set aside by a court.”

9. The appointment of the applicant was not unlawful in that in terms of the Employment of Educators Act there is no prohibition in employing educators who had previously resigned, the Head of Department only needs to provide approval.

10. The permanent appointment letter at paragraph 3 states “as part of all precautions taken by the Department to ensure that you meet all the requirements for the conversion of your nature of appointment to permanent, it is possible that errors might have occurred or that certain information of your profile (e.g. qualification, experience in ATC) has been misrepresented. If such errors or misrepresentation of information is detected, you will be dealt with in terms of section 11 (1)(f) of the Employment of Educators Act, act 76 of 1998 as amended which reads, the employer may have due regard to the applicable provisions of the LRA, discharge an educator from service if the educator was appointed in a post in question on the grounds of the misrepresentation made by the educator relating to any conditions of appointment.

11. This is an example of the case where functionaries, such as District Director, HR and the applicant’s school Principal did not do due diligence when making a decision to permanently appoint the applicant. However, the appointment letter stipulated under which circumstances the respondent may terminate the permanent appointment of the applicant. What is startlingly absent is the lack of consequence management. When the applicant was appointed as a temporary educator she was not required neither did she complete an application to be appointed in that she had previously resigned as an educator. She was not required to complete the same document when a letter was addressed to the chairperson of the SGB on 7 October 2022 by the District Director. The letter informs the chairperson of the SGB that the Head of Department of Eastern Cape Department of Education has approved that the nature of appointment of temporary educators who are part of the cohort whose services were extended from 1 October 2021 to 31 December 2021 (error should have been 2022) to be converted to permanent in terms of section 6B of the Employment of Educators Act, 1998 on the following conditions:
10.1 That the temporary educator has been appointed in a substantive vacant Post Level 1 educator post on the approved 2021 post establishment of the school;
10.2 That the relevant governing body has been consulted on the specific post and the requirements thereof;
10.3 That the temporary educator to be converted matches the requirements of the post; and that the temporary educator has the prescribed educator qualifications.

12. The SGB based on the above letter completed the form where they agreed that the applicant could be converted to permanent. This was done on 21 October 2022.

13. For the dismissal to be substantively fair, the respondent has to prove that there was a misrepresentation of information made by the applicant relating to any conditions of appointment. The conditions of appointment would be the applicant making a misrepresentation in her application to be permanently appointed. There is not an iota of evidence to suggest that the applicant made a misrepresentation. What does concern me is that when it was detected that the Head of Department had not provided approval for the appointment of the applicant permanently, it appears from the respondent’s side that no application was made to seek approval from the Head of Department. Instead of doing that what the respondent did was to terminate the applicant’s employment solely on the basis that they failed to obtain prior approval from the Head of Department.

14. Accordingly, I must find that the dismissal of the applicant was for no fair reason. The dismissal was procedurally unfair as well in that no processes as envisaged in terms of Schedule 8 of the LRA’s Code of Good Practice followed prior to terminating the applicant’s employment.

15. What does concern me is the applicant’s suggestion that the reason why the decision was taken to terminate her contract was due to quid pro quo sexual harassment made by the district manager, Mr Mabece, the applicant’s previous EDO when she was employed with the respondent before resigning. The applicant suggests that during November 2022, Mr Mabece, when she approached him about the placement of her son enquired as to how was it possible that she had been appointed. Mr Mabece must have been aware in order to be appointed either as a temporary educator or as a permanent educator considering the applicant having previous employment with the respondent, no appointment could be made without the approval of the Head of Department. I simply cannot fathom why the applicant would make such unsubstantiated allegations against Mr Mabece, suggesting that the termination was influenced by the fact, that she a number of years ago resisted advances made by the same Mr Mabece. Had there been any truth therein, the applicant would have surely laid a charge of sexual harassment when she was first employed by the respondent and to suggest this now, is simply mischievousness and dishonest.

16. The applicant seeks to be reinstated, I see no reason why I should not grant her such relief. However, as an expression of my disapproval concerning the above allegations, I shall limit back-pay.

17. I therefore make the following award.

AWARD

18. The applicant, Nombasa Abigail Nginda’s dismissal by the respondent, Department of Education: Eastern Cape was procedurally and substantively unfair.

19. The respondent is ordered to retrospectively reinstate the applicant on terms and conditions of employment no less favourable than existed prior to the respondent terminating the applicant’s employment on 17 January 2023. The applicant must tender her services no later than Tuesday, 15 August 2023.

20. The respondent is further ordered to pay the applicant back-pay in the amount of R208 625.88 (R34770.98 x 6) to be paid by no later than 29 September 2023.

Name: Jonathan Gruss
(ELRC) Arbitrator