ELRC102-23/24NW

IN THE ELRC ARBITRATION
BETWEEN:

KLOPPER & BENADE ATTORNEYS obo BOTES, QUINITA JOLENE
and

DEPARTMENT OF EDUCATION – NORTH WEST “the Respondent”

ARBITRATION AWARD

Case Number: ELRC102-23/24NW
Last date of arbitration: 27 OCTOBER 2023
Date of submission of closing arguments: 04 NOVEMBER 2023
Date of award: 21 NOVEMBER 2023

The General Council Secretary
ELRC
Private Bag X126
Centurion
0046
Gauteng
Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced online on 02 October 2023 and the presentation of evidence was finalized on 27 October 2023. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 04 November 2023.

2. The Applicant was represented by Ms Lize Coetzee, an Attorney from Klopper, and Benade Attorneys. The Respondent, Department of Education Northwest (the Department,) was represented by Mr K.M.M Keetile employed by the Department as an Assistant Director for Employee and Labour Relations.

3. A Bundle of documents were submitted on behalf of the Applicant and marked A. The Applicant later in the proceedings requested to supplement her bundle of documents and the Respondent did not object. The Respondent sent a two-page document which was incorporated into bundle A. The proceedings were digitally and manually recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

4. The matter was referred as a dispute related to non-payment of salary. The Applicant is claiming error salary payment from January 2023 to date which she believes is owed to her.

5. I am required to decide whether the Applicant is owed error salary from January 2023 to date.


BACKGROUND
6. The Applicant commenced employed with the Department in 2019 as a Temporary Foreign Educator. She was stationed at Klerksdorp Primary School, earning a monthly salary of R24397.00.

SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
7. The Applicant led evidence and called witnesses namely Annadene Malan and Corrinne Saville. Their evidence will be considered and summarized below.

1ST WITNESS
8. The Applicant stated that she has been employed as a Temporary Educator at Klerkdorp Primary School from 2019.

9. She stated that she holds a temporary work visa which expires every three years. She went on to state that at the commencement of her employment with the Department she submitted a work visa, and the visa was due to expire on 25 June 2022.

10. She applied for a new work visa at the Department of Home Affairs on 02 June 2022 and she was informed that the Department was experiencing a backlog in processing outcomes on waiver and visa applications. She was issued with a temporary extension visa, which was valid up until 31 December 2023 and enabled her to continue to work at the school, which she did.

11. The Applicant submitted that she was not paid her monthly remuneration from January 2023 to date. The school enquired on her behalf regarding her outstanding salary. In response she received a letter dated 23 December 2022 advising her that the nature of her appointment has been converted from temporary appointment to permanent appointment.

12. Under cross examination the Applicant was referred to page 20 of the bundle and she said that the document was an Enquiry Service Record which indicated that her contract expired on 31 December 2022. The Applicant stated that she was not informed that her contract had expired She went to state that she made enquiries with the Department about her non-payment of salary, and she was informed that the Department is waiting for her valid visa. On page 10 of the bundle, she stated the District Director sent a letter dated 28 May 2023, advising her that once she submits a valid visa all monies due to her will be paid.

13. She confirmed that an Annexure D document, which is a document that is filled for requests to fill vacant for Educators in a temporary capacity, was submitted at the date of her engagement with the Department. She further confirmed that she aware that she did not qualify to be appointed as a permanent Educator since she had a temporary work visa and was not a south African citizen.

14. The Applicant confirmed that a receipt from Home Affairs did not constitute a valid visa. It was put to the Applicant if it was unreasonable for Department to not accept the receipt. The Applicant answered and said that this was not a singular issue, but it was a pandemic crisis that affected everyone and that everyone that had applied for the renewal of their visa had to wait. The Applicant went on to state that after her attorney sent the Department correspondence regarding her non-payment issue the Official from the Department telephonically contacted her attorney and requested that the Applicant submit an affidavit which outlined the issues pertaining to the delay for submission of the renewed visa. The Applicant deposed to such an affidavit, and it was submitted to the Department via email.

2ND WITNESS
15. Ms Annadene Malan, the principal of Klerksdorp Primary School, was the Applicant’s second witness. She testified and said that the Applicant was employed on a temporary contract.

16. She stated that she contacted the Department regarding the non-payment of the Applicant’s salary, and she was informed that her contract had ended. She stated that the Department did not inform the Applicant that her contract had ended, and that the Applicant was not issued with a termination letter.

17. Under cross examination the witness stated that she contacted the Department at the end of January 2023, and she was advised that the Applicant’s contract had been terminated. She then enquired about the reason for such termination.

18. She said that when she enquired about the Applicant’s outstanding salary the Department initially did not respond. The Department thereafter sent a letter informing her that the Applicant had been appointed on a permanent basis. She said that she was aware that non-South African citizens do not qualify to be permanent, but she allowed the Applicant to continue working because of the letter of conversion she received and that it was not her duty to question documents sent by the Department.

19. The witness was referred to page 149, clause 4.4 of the bundle which stated that the conversion procedure to be followed with regards to a temporary educator to permanent educator is that the Principal must submit in writing to the Department’s District Office the profile of the funded , substantive and vacant level 1 post at the school which is occupied by a temporary educator who qualities for the conversion and all relevant information showing that the temporary educator qualifies for conversion. It was put to the witness whether the above procedure was followed in respect of the Applicant, she answered and said no.

3rd WITNESS
20. Ms Corinne Saville stated that she was employed by the school in 1996 as an Administration Assistance.

21. She stated that she sent the updated copies of the Applicant’s temporary extension visa to the Department.

22. She stated that she sent several correspondences to the Department enquiring about the Applicant’s outstanding salary.

23. It was put to the witness that annexure D is required to be filled in when a contract is renewed or at the point of engagement. She said that the Annexure D document is only completed for new appointments, and it was not a requirement to complete another one.

Respondent’s Case
24. The Respondent did not call any witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. In disputes of non-payment of salary, the onus is on the applicant to establish that she is owed the arrear salary which she claims.

26. The evidence that served before me was to the effect that the applicant was not paid her salary from January 2023 notwithstanding here tender and acceptance of services by the respondent at Klerksdorp Primary School. At the center of the dispute is a question whether the applicant was still employed by the respondent at the time that the respondent stopped paying her salary? I will also have to dive deep into whether the reasons proffered by the respondent for non-payment are sufficient.

27. I want to deal with the applicant’s version in relation to her employment by the respondent and the extent to which the relationship endure(d). I am alive to the respondent’s version that the applicant was engaged by the respondent in respect of a fixed term contract. This contract was not provided at the hearing, instead I was provided with a copy of the applicant’s appraisal record, which is not in anyway a fixed term contract, and which was subject of much contestation from the applicant’s point of view.

28. The applicant stated that she did not sign a 12-month fixed term contract when she was appointed, however she conceded to signing a temporary contract with the Department which had no stipulated end date. The Applicant further stated that she was employed in 2019 and only filled in Annexure D and signed a temporary contract of employment with the Department 2019. The Respondent on the other hand stated that the Applicant was employed on a temporary 12-month fixed term contract from the point of engagement and the Applicant would have been required to fill in annexure D every time her contract was renewed. The respondent however failed to produce a copy of the fixed term contracts and annexure D documents for 2020, 2021 and 2022 that it relied upon. To this end the respondent’s allegations are not supported by evidence and must therefore not be accepted.

1. Further to this page 10 of the Applicant’s bundle refers to a letter sent by the District Director to the Applicant’s attorney dated 28 May 2023 which states that once the Applicant provides a valid visa her salary would be reinstated. The Applicant was further allegedly requested to furnish the department with an affidavit explaining the reasons why she could not submit a valid visa, the affidavit is found on page 14 of the Applicant’s bundle. I am persuaded to believe from the respondent’s conduct to terminate the Applicant’s salary was due to a valid visa not being submitted and that the issue of the expired contract was a second thought.

2. In respect of the visa. The Applicant approached the Department of Home Affairs with a view to extend her visa or permit, the permit was not renewed as anticipated, but she was advised that there were backlogs and that her visa would be extended until 31 December 2023, this is not disputed by the respondent. It is also not clear why the applicant’s explanation on the reasons that she could not obtain her visa, were not considered in any meaningful manner by the respondent. This smacks of irrationality and unreasonableness on the part of the respondent. To this end I am not convinced that the respondent’s conduct was justified.

3. I accordingly find that the respondent must pay to the applicant amounts owing because of its failure to pay the applicant her salary. The applicant’s arrear salary is to be calculated as follows: (R24397.00 x11 months =R268367.00)



AWARD

I accordingly make the following award:-

1. The respondent is directed to make payment of the amount of R268367.00 to the Applicant no later than 31 December 2023 as her arrear salary.


NTOMBIZONKE MBILI
Arbitrator 21 NOVEMBER 2023
ELRC102-23/24NW