Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 98-24/25 FS
Date of award: 7 August 2024
In the Arbitration between:
Mantoa Sanna Tladi Applicant
and
Department of Education - Free State Respondent
DETAILS OF HEARING AND REPRESENTATION
1. This is the arbitration award in the matter between Mantoa Sanna Tladi (the Applicant) and the Department of Education - Free State (the Respondent), which arbitration was held on 1 August 2024 on virtual platform (MS Teams).
2. The Applicant was represented by Mr Thato Mofokeng, Legal Practitioner from Thato Mofokeng Attorneys in Kroonstad. The Respondent was represented by Mr V Gubuza, Senior Labour Relations Officer of the Respondent.
3. The proceedings were digitally recorded, and handwritten notes were kept. Interpretation services were not required.
ISSUE TO BE DECIDED
4. The dispute was referred as a claim of non-payment of salaries. The Applicant claims she is owed salaries by the Respondent for April 2020, May 2020 and June 2020 for services rendered as an Educator at Kananelo Secondary School in Kroonstad.
5. The Respondent disputes an employment relationship with the Applicant prior to 1 July 2020.
BACKGROUND TO THE ISSUE
6. The Applicant addressed multiple correspondence to the Respondent in the pursuit of her claim, personally and through her attorney in this matter.
SURVEY OF EVIDENCE AND ARGUMENT
7. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is only a summary of the relevant evidence. If evidence is not captured herein, it does not mean that it was not considered.
Documentary:
8. Bundle “A1”” was submitted into evidence by the Applicant, and bundle “R1” was submitted into evidence by the Respondent. Its veracity was not disputed, and it was accepted as it purported to be.
Evidence of the Applicant:
9. The Applicant, Mantoa Sanna Tladi, testified that she had signed a contract to render ad hoc services as an Educator at Kananelo Secondary School on 4 March 2020. She conceded that she had no documentary evidence to support the claim. She submitted the signed forms to the then Principal Mr Kgoarai. The school shut down due to Covid-19 from 18 March 2020 to 25 May 2020. On 18 May 2020 she inquired from the Principal whether her forms had been submitted to the Respondent, and he responded in the negative. On 29 May 2020 she made another enquiry with the Principal, who stated that he has not yet submitted her forms to the Respondent, but that he would do so, and write a motivation for the late submission thereof. On 10 June 2020 she received a payment of R 12 000.00 from the School Governing Body (“SGB”), and another payment of R 4 000.00 on 21 June 2020. It was explained to her by the Principal that the that the SGB had paid her because of the delay in the submissions of her forms to the Respondent. She continued to render her services as an Educator in the hope that the situation would be remedied, and that the Respondent would pay her the balance of her salary owed. On 30 June 2020 she met with the two Deputy Principals, and a phone call was made to Mr Kgoarai, on speakerphone, during which her situation was discussed.
10. Her husband contacted Dr Chuta, District Director of the Respondent, and reported her situation. A meeting was subsequently held between her husband and Dr Chuta. The matter was thus escalated. She denied the version that she carried blame in the situation, as she did not escalate the matter sooner for investigation. The Respondent must pay her salary for April 2020, May 2020 and June 2020 irrespective of whether her forms were ever submitted by the Principal, and her appointment approved, as she had rendered her services as an Educator.
11. She conceded that it had not been the first time that she had been appointed on an ad hoc basis, and she thus understood the process. She conceded that she signed an ad hoc contract (“PO20”) on 2 July 2020 , and that it was the only documentary proof of an ad hoc contract signed for 2020 (1 July 2020 – 31 December 2020) with the Respondent. She further conceded that this contract was the only documentary proof of an assumption of duty issued by the Respondent in approval of a contract between the parties. She was adamant that she refused to work for R 4 000.00 per month for the SGB.
Evidence of the Respondent:
12. Mantso Flora Leeu (“Leeu”), the Senior Human Resources Officer for the Fezile Dabi District, testified that the Respondent had not received any documentation for or from the Applicant for appointment on an ad hoc contract for any period other than 1 July 2020 to 31 December 2020 during 2020. The Principal for Kananelo Secondary School did not submit any other documents for the Applicant other than the aforementioned period. There existed no ad hoc contract for the Applicant for the period March 2020 to June 2020 with the Respondent as alleged, and no appointment letter was issued for the Applicant for the aforementioned period.
13. The Respondent was aware of the Applicant’s enquires into payment of salaries for April 2020, May 2020, and June 2020. The Respondent did not have an employment relationship with the Applicant for the aforementioned months, and as such the Applicant is not entitled to salaries for the stipulated months. Only once an ad hoc contract is issued and signed by parties, an appointment letter is issued by the Respondent and an assumption of duty letter issued will such an individual be considered in the employ of the Respondent, and on the specific conditions as set out in the appointment letter, including, but no limited to, the period of appointment, and salary.
14. As there existed no employment relationship between parties for the period that the Applicant claimed an entitlement to a salary, there existed no right to such an entitlement. Appointments of ad hoc Educators only happen on approval by the Respondent. The Respondent did not approve the appointment of the Applicant for a period of March 2020 to June 2020.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. Parties made oral closing arguments. Same will not be repeated herein.
16. In this matter, the Applicant bears the onus to prove an entitlement to salaries for April 2020, May 2020 and June 2020.
17. The Applicant proved to be a poor witness. She avoided questions under cross-examination, she was easily agitated when cross-examined and she failed to make concessions on basic aspects which she was reasonably expected to make.
18. The Applicant did not call any witnesses in support of her version. The Applicant further failed to produce any documentary evidence in support of her version that she was appointed by the Respondent on any ad hoc basis for any period other than 1 July 2020 to 31 December 2020.
19. The Respondent led undisputed evidence that the appointment of an Educator on an ad hoc basis can only be made on the approval of the Respondent. (my emphasis) The Respondent led uncontested evidence on the procedure involved to get the approval for such an ad hoc appointment of an Educator at a school, which appointment would be in addition to the approval staff compliment.
20. The documentary evidence submitted in bundles “A” and “B” showed that the only application for an ad hoc placement of the Applicant as an Educator at Kananelo Secondary School (“PO20”) was signed 8 July 2020 and received by the Respondent on even date (stamped). An assumption of duty was issued on 2 July 2020 (page 7 & 8 of “R”) by the Deputy Principal and the Principal. An appointment letter was issued for the Applicant on an ad hoc/temporary contract on 17 Sseptember 2020 (page 11 of “R”) for the period 1 July 2020 to 31 December 2020. An contract of employment on an ad hoc basis was further issued and signed for the aforementioned period, concluded between parties.
21. There exists no evidence of an employment relationship between the Applicant and the Respondent for any other period than 1 July 2020 to 31 December 2020 during the year 2020. The Courts have held that an employee is considered to be fully employed and therefore protected under labour law legislation from the moment the employment contract is concluded even if the employee has not yet actually started work. This applies even if nothing has been put into writing or signed, and the contract of employment has only been verbally agreed between the two parties. In this case of the Applicant, no evidence exists that a contract was concluded between the Applicant and the Respondent for the period March 2020 to June 2020. (my emphasis)
22. The Applicant was unable to prove that she is entitled to a salary from the Respondent for the period April 2020, May 2020 and June 2020, as no employment relationship existed between parties for the period claimed.
23. It was not disputed that the Applicant had rendered her services as an Educator during the period March 2020 to June 2020. It was further not disputed that the SGB had paid her R 16 000.00 (sixteen thousand rand) for the period in question. On the Applicant’s own version, the Principal had explained that the SGB had decided to pay her, because the submission of her forms was not done to the Respondent. If the Applicant is dissatisfied with the amount that the SGB has paid her for the period March 2020 to June 2020, her dispute is with the SGB, and not with the Respondent. Important to note is that section 20(10) of the South African Schools Act (84 of 1996) as amended exonerates the Department of Education for “any act or omission by a public school relating to its contractual responsibility as the employer in respect of staff employed in terms of subsections (4) and (5)”.
24. The Applicant has failed to prove an entitlement to salaries from the Respondent for the period April 2020, May 2020 and June 2020, and her claim stands to be dismissed.
AWARD
25. The Applicant, Mantoa Sanna Tladi, was unable to prove that she is owed salaries for the period April 2020, May 2020 and June 2020 by the Respondent, the Department of Education – Free State.
26. The Applicant’s claim is accordingly dismissed.
27. The ELRC may close the file.
Minette van der Merwe
ELRC Panelist