ELRC672-23/24FS

Panellist: THABE PHALANE
Case No.: ELRC 672-23/24 FS
Date of Award: 16 APRIL 2024

In the Arbitrator between:

MAUDA, Itani Oriel
(Employee / Applicant)

and

Department of Education Free State
(Employer / Respondent)

Employee’s representative: In person/unrepresented
Telephone:
Telefax:
Email:

Employer’s representative: Mr Vuyisile Gubuza
Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION.
1.1 The arbitration took place on 11 March 2024, at Free State District offices, Sasolburg.

1.2 Both parties attended and the Applicant was unrepresented, whilst the Respondent was represented by Mr Vuyisile Gubuza, the Respondent’s representative.

1.3 The proceedings were digitally recorded.

1.4 The Respondent handed in a bundle of documents marked bundle ‘R’ and the Applicant submitted his documents which were marked bundle ‘A’. The Respondent called one witness who testified and was cross examined and the Applicant testified and was cross examined.

1.5 The parties agreed to submit written arguments on 18 March 2024. The Respondent submitted on 07 March 2024, and the Applicant submitted on 11 March 2024.

1.6 I then proceeded to issue the following award.

ISSUE TO BE DECIDED
1.7 I am required to determine whether the termination of the Applicants contract was fair or unfair, and consequent thereon, to issue the appropriate relief.

BACKGROUND TO THE DISPUTE
1.8 The Applicant was employed as an Educator Post level 1 from 15 February 2010 and was working at Mphatlalatsane Specialized School in Viljoenskroon.

1.9 On 29 September 2023 he was requested to submit a certified copy of SACE certificate failing which his contract will be terminated on 31 October 2023. The Applicant failed to produce a SACE certificate but produced proof of provisional registration (Student Teacher) dated 17 October 2023.

1.10 The Respondent then terminated the Applicant’s services due to non-compliance.

1.11 The Applicant submitted that the termination was unfair as he has applied for a post that he qualified for and he has registered with SACE. He wanted reinstatement as a relief.

SURVEY OF EVIDENCE AND ARGUMENT

RESPONDENT’S EVIDENCE AND ARGUMENTS

1st witness, Mr Vuyisile Gubuza
1.12 The witness is the Dispute Manager of the Province.

1.13 He submitted that the Respondent issued a Human Resources Administration Circular no 08 of 2023 which noted, amongst others, that some Educators were appointed with provisional SACE Certificates which have since expired and they never re-submitted for renewal.

1.14 It stated that it is a statutory requirement for appointment of a teacher that they must be registered with SACE as per Chapter 8 of PAM page B44, dated 09 September 2022. Educators that were practicing without a SACE registration were practicing illegally.

1.15 All SGB and School Principals were requested to take the message seriously and ensure that all educators were in possession of a SACE Certificate used for appointment.

1.16 The Applicant’s certificate was not forthcoming and he was issued with a termination letter dated 29 September 2023.

1.17 This requirement has been communicated to the schools from 2017. This is the date from which the Applicant has not been complying with the statutory requirements. PAM has been in place since 1998 when the Employment of Educators Act was passed, and the Government Gazette of 09 September 2022, as stated in paragraph B 3.2.1 of PAM (Personnel Administration Measures), provides that the minimum requirements for appointment for Institute based and Office based Educators are educational qualifications, statutory requirements and experience.

1.18 Paragraph 3.2.1.1 applies to school based educators like the Applicant and it requires registration with SACE as a professional Educator.

1.19 When the Applicant applied for his post in 2011 he was on probation for 12 months. His contract should have been terminated then. He was instead required to submit proof of SACE registration as it was illegal to retain him.

1.20 The only exception is for office based Educators who are required to obtain approval through the Minister (not MEC) for appointment without registration with SACE.

1.21 There is no question of misconduct or a hearing being held as the issue relates to compliance with statutory requirements.

1.22 The fact that the Applicant was not terminated earlier does not justify his retention as an Educator. The demand from the Respondent was legitimate and fair and the Applicant has not complied with the demand.

Under cross-examination
1.23 The Applicant only provided a provisional registration with an expiry date. He had it for 1 year and the other years he was working illegally.

1.24 He has now also provided a temporary registration which says registration is still in process.

1.25 An educator cannot be provisionally registered forever. The Respondent wants a permanent registration certificate.

1.26 The Applicant is not a student teacher and is not employed to teach grade R as per his registration provided to the Respondent.

APPLICANT’S EVIDENCE AND ARGUMENTS

Mr Itani Oriel Mauda
1.27 The Applicant submitted that he provided proof of registration with SACE.

1.28 There is no provision that prescribes what format the registration should be in.

1.29 The Respondent also gave him short notice to acquire the SACE registration certificate.

Under cross-examination
1.30 The Applicant agreed that he knows what a SACE certificate looks like.

1.31 He conceded that he submitted a provisional registration with SACE and not a SACE certificate.

1.32 He also conceded that the provisional registration is for a student teacher and he was permanently employed.

1.33 He also conceded that when he was initially employed he submitted a provisional registration with SACE, which has expired.

1.34 He submitted however that his registration is grounded on PAM.

1.35 He submitted that he was not aware that the actual certificate was needed as no queries were directed towards him before now. He was surprised the Respondent now wanted a certificate.

1.36 He also denied that he was in the Department illegally for 13 years and submitted that if there was any illegal activity it came from those who approved him as he met all the requirements.

ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.37 Dismissal means that the employer has terminated employment with or without notice. The Applicant has referred hismatter in terms of section 191 (5) (a) of the Labour Relations Act 66 of 1995 (the Act).

1.38 Section 192 requires the Applicant to show the existence of a dismissal and the Respondent must then prove that the dismissal was fair.

1.39 Section 188 provides that a dismissal will be unfair if the employer fails to prove that the reason for the dismissal was a fair reason and was affected in accordance with a fair procedure.

1.40 In this case the Respondent does not dispute that the Applicant was dismissed but that his contract was terminated as he did not fulfill a material term of his statutory obligations, being to register with SACE and provide a SACE certificate.

1.41 When evaluating evidence the degree or extent of proof required is that of a balance of probabilities. Where the versions are equally probable or in balance, a party carrying the onus of proof should lose as having failed to discharge the onus.

1.42 Evidence is the material provided to the Commissioner to enable him to establish the probable facts. In order for evidence to be admitted into the record, it must be relevant to the issue being determined and must be reliable.

1.43 Relevance is determined with reference to the issue in dispute. Arbitrators must distinguish between facts that are sufficiently relevant to be admissible and facts that are remote to the issue in dispute.

1.44 In this case the best evidence provided by the Respondent is the oral evidence of the Respondent’s witness as well as the documentary evidence of the request and notice to the Applicant to try and comply with the statutory obligations imposed on all educators.

1.45 Evidence that is not reliable, like opinion or hearsay evidence, should not be admitted. The reliability of evidence may also be affected by the opportunity to experience or observe the event in question as well as the quality, integrity or independence of the witnesses’ recollection.

1.46 There is no rank as to which nature or type of evidence is more reliable however oral evidence remains the best and direct evidence especially if experienced or observed by the witness.

1.47 Circumstantial evidence proves a fact indirectly and is admissible if tendered to prove a relevant fact. It is persuasive if the inference sought to be drawn from the evidence is consistent with all the facts proved and it is the most plausible or natural inference, not necessarily the only inference.

1.48 This type of evidence usually comes in the form of corroboration and once all the evidence is tendered the Arbitrator must weigh up the evidence as a whole and determine what evidence is more probable, by assessing the probabilities and improbabilities of each version and on each disputed fact.

1.49 The Arbitrator should not reject evidence based on immaterial or minor inconsistencies. A credibility finding based on the observation of a witness should not be the first recourse in evaluating probabilities.

1.50 This involves a finding of fact based on an assessment of the reliability, credibility and ultimately the probability of the evidence evaluated against the applicable rules.

1.51 Commissioners must guard against rejecting evidence on the basis that there are a few discrepancies, unless the evidence is found to be false. Only the evidence that is false must be rejected, and not the evidence in its entirety.

1.52 In Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097 (CC), In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A Commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at that decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all the relevant factors and circumstances.

Substantive fairness
1.53 The Respondent submitted the Applicant could not perpetually provide a provisional registration certificate. He has been employed since 2011 and provided a provisional registration when he started employment. That registration has expired a long time back.

1.54 There is nothing ambiguous about this requirement and I find that the Respondent’s request is lawful and reasonable.

1.55 The Applicant however insisted that the provisional registration is correct and should be accepted as it will take long to acquire the certificate given the short period afforded to him. This argument is defective due to the incorrect details on the provisional certificate.

1.56 The Applicant is not a student teacher and does not teach grade R. I therefore find it difficult to comprehend a situation where the Respondent will find an incorrect registration acceptable.

1.57 The Applicants termination of contract is distinguishable from a species of termination of contract by operation of law, in particular (non-compliance with requirements of section 21 of SACE Act) prohibiting the employment of an educator without a valid registration with SACE.

1.58 In this matter the Applicant was employed in 2010. He was for all intents and purposes a suitable candicate for employment because he was registered with SACE. The additional condition for the SACE certificate was initiated around 2017.

1.59 This matter is therefore a normal termination of a contract of employment by employer with or without notice due to effluxion of time, or misconduct, or retirement age, or supervening impossibility of performance but through the failure to filfill a material condition of a contract.

1.60 The reason for termination of the Applicant’s contract was therefore a fair reason and it is therefore my finding that the Respondent dismissed the Applicant in a fair manner due to non-compliance with his employment condition.

1.61 The failure to meet a condition which the Applicant says he had an intention to comply with cannot therefore turn the termination of the contract by the Respondent into an unfair decision.

1.62 The Respondent has bent backwards and the Applicant still failed to show he was attempting to comply. The Applicant brought incorrect documents and that amounts to non-compliance.

1.63 In conclusion, I find that termination of the Applicant’s contract was fair as he failed to meet a material statutory obligation and a condition of employment.

In these circumstances I make the following award

AWARD
1.64 The Applicant failed to show that the employer terminated his contract unfairly.

1.65 The referral of the Applicant is accordingly dismissed.