ELRC 143-20/21 WC
ELRC 143-20/21 WC
Award Date:
16 October 2020
Case Number: ELRC 143-20/21 WC
Province: Western Cape
Applicant: Ziyanda Patricia Siswana
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtually
Award Date: 16 October 2020
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: ELRC 143-20/21 WC
Date of hearing: 16 October 2020
In the arbitration between:
Ziyanda Patricia Siswana Applicant/Employee party
and
Department of Education – WC Respondent/Employer party
Applicants’ representative: V. Mahobe
Tel:
E-mail:
Respondent’s representative: G. Khan
Tel:
Fax:
E-mail: Ghaatoon.Khan@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held via a Zoom meeting on 16 October 2020.
2. The Applicant was represented by V. Mahobe, an Union Official.
3. The Respondent was represented by C. Khan, its Senior Employee Relations Officer.
4. The parties requested to submit written closing arguments by 23 October 2020.
BACKGROUND TO THE DISPUTE AND SURVEY OF SUBMISSIONS:
5. There was a prior Ruling in this matter issued by the ELRC, which stated in terms of the Collective Agreement the ELRC had jurisdiction to arbitrate the matter. The said Jurisdiction Ruling stated that, as well as to decide whether the Applicant is entitled to her salary, it has to be decided at arbitration as to the Applicant’s employment status at the time that she claims salary is due to her and henceforth.
6. The Applicant’s dispute was lodged on 31 July 2020.
7. The Applicant resigned from the employment of the Respondent by filling in the E55 Form, on or about 6 February 2020, and this form was signed by herself and the Principle, Mrs Yoliswa Qomoyi. In this form she stated that her last day of work would be 30 April 2020.
8. In terms of the resignation the Applicant should have been paid up until 30 April 2020. However she was paid for the month of May 2020.
9. On or about 7 May 2020 she e-mailed the Service Benefits Department, that deals with resignations, to withdraw her resignation. She was informed by Mr Filander, from the Department, that she has to speak to the Principal of the school, as he does not have authorisation to withdraw the resignation.
10. On 8 June 2020 the Applicant went back to the school, and spoke to the Principal, and allegedly remained at the school on her own accord, according to the Department. However a Mr Vantyi had been appointed to fill her post from 1 May 2020 to 31 December 2020 on a contractual basis.
11. The Principal of the school, Yoliswa Qomoyi, alleges that she informed the Applicant that remaining at the school is at her own risk. However the Applicant avers that she was given duties to perform at the school by the Deputy Principal, Mr Luyanda Nuka. However the Principal of Isikhokelo Primary School, the school concerned, alleged that she did not give her any duties, and neither did Mr Nuka, the Deputy Principal of the said school, and neither did Mr Nuka, according to him.
12. Due to the lockdown, the benefits were unable to be processed timeously, and therefore the financial aspects of her resignation were delayed. However she did receive payment in May 2020, according to the Applicant.
13. The Respondent’s version is that the Applicant resigned because she was ill, and could not walk up the stairs, as the school is in a double story building. She could no longer work due to her ill-health.
14. The Applicant’s version is that she recovered during lockdown, and that she was fit enough to work again, and therefore she withdrew the resignation, and returned to work, and therefore she needs to be paid, as she needs to be employed again.
ISSUE TO BE DECIDED:
15. Whether the Applicant was not paid her salary for the month of June 2020?
APPLICANT’S EVIDENCE:
16. The Applicant gave evidence on her behalf. She stated that herself and the Principal, Mrs Qomoyi, had a good working relationship. She has been at the school since 1 July 1996, and the Principal only joined in 2008.
17. She confirmed submitting resignation documents to the Department in February 2020. The point of departure is that she says she expected the resignation to be effective for three months. However it must be noted that it is stated on the resignation form that her last day would be 30 April 2020.
18. The Applicant admitted that she was paid for the month of May 2020, although she was not at school.
19. She did go back to the school on 25 May 2020, and on that day the staff had a briefing, and she alleged that the Principal did not tell her anything about her resignation.
20. After the lockdown the Deputy Principal, Mr Nuka, gave her duties to perform.
21. The Principal had stated at a staff meeting that Mr Vantyi had replaced her. She had thought that Mr Vantyi had replaced another teacher, and not her. There were other new teachers at school, as well, replacing a teacher who left during the first term and another teacher who had retired.
22. She stated that from 25 May 2020 she was preparing to teach learners the following week, and she was informed by the Deputy Principal that she will be teaching Natural Science. She also taught isiXhosa.
23. On 3 July 2020 she realised that she was replaced by Mr Vantyi. As from 3 July 2020 the Principal told her that she ordered management not to give her any further instructions.
24. The Applicant claimed that she worked the whole of June 2020. She wants to go back to her position, and be paid for the month of June 2020, and until she is re-instated.
25. She felt that she had the right to withdraw the resignation until the end date of the resignation. She has a love for teaching and for children. Her arthritis is much better due to Collagen, which has no side effects.
26. The Applicant claimed that she wrote an e-mail on 7 April 2020 withdrawing her resignation, and followed it up by way of letter dated 5 May 2020. She did receive a reply to her e-mail dated 7 April 2020 from Rose Banting of Client Services. She then wrote another e-mail on 21 April 2020. On 7 May 2020 she was asked to go to the Principal, by Mr Filander, to get the Principal’s authorisation with regards to the withdrawal of her resignation.
27. She then went to see the Principal on 25 May 2020, after the lockdown. The Principal refused to write the recommendation, stating that she could not interfere, as it’s a matter between the Applicant and the Department. The Applicant was of the view that the Department had no problem, and it was the Principal who refused to write the recommendation.
28. She was earning R29 498-25 per month, and stated that she did not earn any benefits, as it was put on hold due to this matter.
RESPONDENT’S EVIDENCE:
29. The first witness was Mrs Yoliswa Qomoyi, the Principal of Isikhokelo Primary School. She stated that the Applicant came to her after going to the Department, on her own accord, to sign her resignation form. As the Principal of the school she could see that the Applicant was ill and suffering.
30. On 20 March 2020, just before lockdown, the Applicant came to see her, and informed her that she had submitted all the documents to the Department. The Applicant had come to say goodbye, as this was her last day.
31. The Applicant could not climb stairs as she suffered from short breath, and could not walk properly. The school had arranged for a classroom downstairs for the Applicant from January 2020 until 20 March 2020. The Applicant had to undergo a major operation, and if she continued to work she would become disabled, according to her Doctor.
32. The Applicant’s post was advertised, and was filled on a contractual basis until 31 December 2020 by Mr Vantyi.
33. She saw the Applicant in school after lockdown. The Applicant came to her office on 8 June 2020, much to her surprise. The Applicant said that she is waiting for her payout. She told the Applicant that she was there at her own risk. The Applicant then went to the staff room. The Principal thought it was to socialise with her friends.
34. Anyone can sign the attendance register. The attendance register is kept with the secretary. Even visitors sign the attendance register.
35. The Applicant did tell her that she wanted to retract the resignation. However she had never heard of anything like this before. She could see that the Applicant was still ill, and did not agree with the Applicant.
36. She stated that she would see the Applicant in school, sitting in the staff room, discussing and debating with the other teachers.
37. She would not accept the withdrawal of the Applicant’s resignation.
39. The Deputy Principal has to consult with her before giving the Applicant instructions, and she denied that the Deputy Principal gave the Applicant instructions.
40. She stated that by resigning the Applicant had done a good thing for herself and the school.
41. The Applicant did sign the attendance register on 8 June 2020, however the Principal did not put her name on the online register as the Applicant was not supposed to sign the attendance register.
42. The Applicant’s last day of work was 30 April 2020.
43. The last witness for the Respondent was Mr Luyanda Nuka, the Deputy Principal of the school. The first day after the lockdown he saw the Applicant at school. However he denied allocating duties to the Applicant, as he was informed by the Principal that she had resigned effective 30 April 2020. This was on 8 June 2020.
44. He saw the Applicant in the staff room with other teachers.
45. The Principal and the School Governing Body had to look for a teacher to take the Applicant’s place. Mr Vantyi took her place from 1 May 2020.
46. He did not allocate duties to the Applicant to teach Natural Science. It was for the Principal to do the allocation of duties.
47. He has been the Deputy Principal since 2014. The Principal did allocate some duties to him, but most of the duties are done by the Principal, especially the allocation of duties. If the Principal allocates any duty to him he has to go back and report to her. He has his own job description in that he is the manager of the curriculum.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
48. The Applicant had to prove that she had worked in June 2020, and that she was duly authorised to work during that month in order to qualify for a salary.
49. It is common cause that the Applicant willingly filled in the E55 Form, and had a very real intention to resign from employment. It is herself who filled in the date of 30 April 2020 as the last day of her work, and it is unchallenged evidence that she had said goodbye to the Principal on 20 March 2020, and that she would not be returning.
50. However she appears to have been paid up to May 2020.
51. It is further noted that the Applicant at some point decided to retract her resignation, but she had been informed that she had to get a recommendation from the Principal in order for the Department to consider such retraction.
52. It is common cause that the Principal was not willing to grant such a recommendation. In fact the Principal was of the view that it was in the best interests of the Applicant and the school that she no longer remains in employment at the school, unless she recovers fully, as the Principal had stated that she was battling to cope with teaching activities at school.
53. Both the Principal, Mrs Qomoyi, and the Deputy Principal, Mr Nuka, proved to be credible and reliable witnesses. The Principal narrated the events, and I have no reason to doubt the veracity of her evidence, which I accept in totality. Same has to be said of the Deputy Principal. There is no reason to concoct any story. I’m of the view that they had the best interests of the school at heart.
54. As for the Applicant, it would seem that she was frustrated at the delay in the granting of her benefits due to the lockdown, and other administrative requirements. It is this frustration which could have caused her to return to school. However she had no authorisation to return to school.
55. The Department was dealing with the final resignation aspects at that time. She was not performing any duties at the school. She attended school on her own accord, and at her own risk.
56. I accept the Deputy Principal’s evidence that he had not allocated duties to her. Mr Vantyi was there to fulfill her duties, having been engaged to do so.
57. Once an employee delivers a resignation to an employer this is regarded as a unilateral act by an employee to terminate a contract of employment. In my view the Applicant had discussions with the Principal regarding resigning, and had long been harbouring the intention to resign, and in filling out and submitting the form has shown a clear and unambiguous intention to resign.
58. A resignation cannot be revoked solely, and must be consented to by the employer. The employer has to accept the resignation, and cannot refuse it as long as all the legal requirements are in place.
59. Arrangements had already been made, and a replacement found for the Applicant.
60. There is no cooling off period when it comes to resignation, and the employee does not have legal entitlement to withdraw the resignation.
61. The above statements have support in the case of Sihlali v South African Broadcasting Corporation Ltd [2010] 5 BLLR 542 (LC), wherein Van Niekerk J held that a resignation is a unilateral act by an employee to terminate his/her contract of employment. The learned judge pointed out that an employee in so resigning, must demonstrate:
“… a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention.”
62. The Employment of Educators Act 1998 states that:
“15. (1) “an educator may resign by giving 90 days’ notice in writing or such shorter notice as the employer may approve at the request of the employee.”
63. The pertinent point to consider above is shorter notice. Both the Principal and the Applicant were in concurrence of the Applicant leaving on 30 April 2020.
FINDINGS:
64. Having taken all the above into account I find that the Department does not owe the Applicant any salary, and she is not an employee of the Department as she has resigned.
AWARD:
65. The application is dismissed.
66. There is no order as to costs.
J.D. VEDAN
ELRC Panellist
Province: Western Cape
Applicant: Ziyanda Patricia Siswana
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtually
Award Date: 16 October 2020
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: ELRC 143-20/21 WC
Date of hearing: 16 October 2020
In the arbitration between:
Ziyanda Patricia Siswana Applicant/Employee party
and
Department of Education – WC Respondent/Employer party
Applicants’ representative: V. Mahobe
Tel:
E-mail:
Respondent’s representative: G. Khan
Tel:
Fax:
E-mail: Ghaatoon.Khan@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held via a Zoom meeting on 16 October 2020.
2. The Applicant was represented by V. Mahobe, an Union Official.
3. The Respondent was represented by C. Khan, its Senior Employee Relations Officer.
4. The parties requested to submit written closing arguments by 23 October 2020.
BACKGROUND TO THE DISPUTE AND SURVEY OF SUBMISSIONS:
5. There was a prior Ruling in this matter issued by the ELRC, which stated in terms of the Collective Agreement the ELRC had jurisdiction to arbitrate the matter. The said Jurisdiction Ruling stated that, as well as to decide whether the Applicant is entitled to her salary, it has to be decided at arbitration as to the Applicant’s employment status at the time that she claims salary is due to her and henceforth.
6. The Applicant’s dispute was lodged on 31 July 2020.
7. The Applicant resigned from the employment of the Respondent by filling in the E55 Form, on or about 6 February 2020, and this form was signed by herself and the Principle, Mrs Yoliswa Qomoyi. In this form she stated that her last day of work would be 30 April 2020.
8. In terms of the resignation the Applicant should have been paid up until 30 April 2020. However she was paid for the month of May 2020.
9. On or about 7 May 2020 she e-mailed the Service Benefits Department, that deals with resignations, to withdraw her resignation. She was informed by Mr Filander, from the Department, that she has to speak to the Principal of the school, as he does not have authorisation to withdraw the resignation.
10. On 8 June 2020 the Applicant went back to the school, and spoke to the Principal, and allegedly remained at the school on her own accord, according to the Department. However a Mr Vantyi had been appointed to fill her post from 1 May 2020 to 31 December 2020 on a contractual basis.
11. The Principal of the school, Yoliswa Qomoyi, alleges that she informed the Applicant that remaining at the school is at her own risk. However the Applicant avers that she was given duties to perform at the school by the Deputy Principal, Mr Luyanda Nuka. However the Principal of Isikhokelo Primary School, the school concerned, alleged that she did not give her any duties, and neither did Mr Nuka, the Deputy Principal of the said school, and neither did Mr Nuka, according to him.
12. Due to the lockdown, the benefits were unable to be processed timeously, and therefore the financial aspects of her resignation were delayed. However she did receive payment in May 2020, according to the Applicant.
13. The Respondent’s version is that the Applicant resigned because she was ill, and could not walk up the stairs, as the school is in a double story building. She could no longer work due to her ill-health.
14. The Applicant’s version is that she recovered during lockdown, and that she was fit enough to work again, and therefore she withdrew the resignation, and returned to work, and therefore she needs to be paid, as she needs to be employed again.
ISSUE TO BE DECIDED:
15. Whether the Applicant was not paid her salary for the month of June 2020?
APPLICANT’S EVIDENCE:
16. The Applicant gave evidence on her behalf. She stated that herself and the Principal, Mrs Qomoyi, had a good working relationship. She has been at the school since 1 July 1996, and the Principal only joined in 2008.
17. She confirmed submitting resignation documents to the Department in February 2020. The point of departure is that she says she expected the resignation to be effective for three months. However it must be noted that it is stated on the resignation form that her last day would be 30 April 2020.
18. The Applicant admitted that she was paid for the month of May 2020, although she was not at school.
19. She did go back to the school on 25 May 2020, and on that day the staff had a briefing, and she alleged that the Principal did not tell her anything about her resignation.
20. After the lockdown the Deputy Principal, Mr Nuka, gave her duties to perform.
21. The Principal had stated at a staff meeting that Mr Vantyi had replaced her. She had thought that Mr Vantyi had replaced another teacher, and not her. There were other new teachers at school, as well, replacing a teacher who left during the first term and another teacher who had retired.
22. She stated that from 25 May 2020 she was preparing to teach learners the following week, and she was informed by the Deputy Principal that she will be teaching Natural Science. She also taught isiXhosa.
23. On 3 July 2020 she realised that she was replaced by Mr Vantyi. As from 3 July 2020 the Principal told her that she ordered management not to give her any further instructions.
24. The Applicant claimed that she worked the whole of June 2020. She wants to go back to her position, and be paid for the month of June 2020, and until she is re-instated.
25. She felt that she had the right to withdraw the resignation until the end date of the resignation. She has a love for teaching and for children. Her arthritis is much better due to Collagen, which has no side effects.
26. The Applicant claimed that she wrote an e-mail on 7 April 2020 withdrawing her resignation, and followed it up by way of letter dated 5 May 2020. She did receive a reply to her e-mail dated 7 April 2020 from Rose Banting of Client Services. She then wrote another e-mail on 21 April 2020. On 7 May 2020 she was asked to go to the Principal, by Mr Filander, to get the Principal’s authorisation with regards to the withdrawal of her resignation.
27. She then went to see the Principal on 25 May 2020, after the lockdown. The Principal refused to write the recommendation, stating that she could not interfere, as it’s a matter between the Applicant and the Department. The Applicant was of the view that the Department had no problem, and it was the Principal who refused to write the recommendation.
28. She was earning R29 498-25 per month, and stated that she did not earn any benefits, as it was put on hold due to this matter.
RESPONDENT’S EVIDENCE:
29. The first witness was Mrs Yoliswa Qomoyi, the Principal of Isikhokelo Primary School. She stated that the Applicant came to her after going to the Department, on her own accord, to sign her resignation form. As the Principal of the school she could see that the Applicant was ill and suffering.
30. On 20 March 2020, just before lockdown, the Applicant came to see her, and informed her that she had submitted all the documents to the Department. The Applicant had come to say goodbye, as this was her last day.
31. The Applicant could not climb stairs as she suffered from short breath, and could not walk properly. The school had arranged for a classroom downstairs for the Applicant from January 2020 until 20 March 2020. The Applicant had to undergo a major operation, and if she continued to work she would become disabled, according to her Doctor.
32. The Applicant’s post was advertised, and was filled on a contractual basis until 31 December 2020 by Mr Vantyi.
33. She saw the Applicant in school after lockdown. The Applicant came to her office on 8 June 2020, much to her surprise. The Applicant said that she is waiting for her payout. She told the Applicant that she was there at her own risk. The Applicant then went to the staff room. The Principal thought it was to socialise with her friends.
34. Anyone can sign the attendance register. The attendance register is kept with the secretary. Even visitors sign the attendance register.
35. The Applicant did tell her that she wanted to retract the resignation. However she had never heard of anything like this before. She could see that the Applicant was still ill, and did not agree with the Applicant.
36. She stated that she would see the Applicant in school, sitting in the staff room, discussing and debating with the other teachers.
37. She would not accept the withdrawal of the Applicant’s resignation.
39. The Deputy Principal has to consult with her before giving the Applicant instructions, and she denied that the Deputy Principal gave the Applicant instructions.
40. She stated that by resigning the Applicant had done a good thing for herself and the school.
41. The Applicant did sign the attendance register on 8 June 2020, however the Principal did not put her name on the online register as the Applicant was not supposed to sign the attendance register.
42. The Applicant’s last day of work was 30 April 2020.
43. The last witness for the Respondent was Mr Luyanda Nuka, the Deputy Principal of the school. The first day after the lockdown he saw the Applicant at school. However he denied allocating duties to the Applicant, as he was informed by the Principal that she had resigned effective 30 April 2020. This was on 8 June 2020.
44. He saw the Applicant in the staff room with other teachers.
45. The Principal and the School Governing Body had to look for a teacher to take the Applicant’s place. Mr Vantyi took her place from 1 May 2020.
46. He did not allocate duties to the Applicant to teach Natural Science. It was for the Principal to do the allocation of duties.
47. He has been the Deputy Principal since 2014. The Principal did allocate some duties to him, but most of the duties are done by the Principal, especially the allocation of duties. If the Principal allocates any duty to him he has to go back and report to her. He has his own job description in that he is the manager of the curriculum.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
48. The Applicant had to prove that she had worked in June 2020, and that she was duly authorised to work during that month in order to qualify for a salary.
49. It is common cause that the Applicant willingly filled in the E55 Form, and had a very real intention to resign from employment. It is herself who filled in the date of 30 April 2020 as the last day of her work, and it is unchallenged evidence that she had said goodbye to the Principal on 20 March 2020, and that she would not be returning.
50. However she appears to have been paid up to May 2020.
51. It is further noted that the Applicant at some point decided to retract her resignation, but she had been informed that she had to get a recommendation from the Principal in order for the Department to consider such retraction.
52. It is common cause that the Principal was not willing to grant such a recommendation. In fact the Principal was of the view that it was in the best interests of the Applicant and the school that she no longer remains in employment at the school, unless she recovers fully, as the Principal had stated that she was battling to cope with teaching activities at school.
53. Both the Principal, Mrs Qomoyi, and the Deputy Principal, Mr Nuka, proved to be credible and reliable witnesses. The Principal narrated the events, and I have no reason to doubt the veracity of her evidence, which I accept in totality. Same has to be said of the Deputy Principal. There is no reason to concoct any story. I’m of the view that they had the best interests of the school at heart.
54. As for the Applicant, it would seem that she was frustrated at the delay in the granting of her benefits due to the lockdown, and other administrative requirements. It is this frustration which could have caused her to return to school. However she had no authorisation to return to school.
55. The Department was dealing with the final resignation aspects at that time. She was not performing any duties at the school. She attended school on her own accord, and at her own risk.
56. I accept the Deputy Principal’s evidence that he had not allocated duties to her. Mr Vantyi was there to fulfill her duties, having been engaged to do so.
57. Once an employee delivers a resignation to an employer this is regarded as a unilateral act by an employee to terminate a contract of employment. In my view the Applicant had discussions with the Principal regarding resigning, and had long been harbouring the intention to resign, and in filling out and submitting the form has shown a clear and unambiguous intention to resign.
58. A resignation cannot be revoked solely, and must be consented to by the employer. The employer has to accept the resignation, and cannot refuse it as long as all the legal requirements are in place.
59. Arrangements had already been made, and a replacement found for the Applicant.
60. There is no cooling off period when it comes to resignation, and the employee does not have legal entitlement to withdraw the resignation.
61. The above statements have support in the case of Sihlali v South African Broadcasting Corporation Ltd [2010] 5 BLLR 542 (LC), wherein Van Niekerk J held that a resignation is a unilateral act by an employee to terminate his/her contract of employment. The learned judge pointed out that an employee in so resigning, must demonstrate:
“… a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harboured such an intention.”
62. The Employment of Educators Act 1998 states that:
“15. (1) “an educator may resign by giving 90 days’ notice in writing or such shorter notice as the employer may approve at the request of the employee.”
63. The pertinent point to consider above is shorter notice. Both the Principal and the Applicant were in concurrence of the Applicant leaving on 30 April 2020.
FINDINGS:
64. Having taken all the above into account I find that the Department does not owe the Applicant any salary, and she is not an employee of the Department as she has resigned.
AWARD:
65. The application is dismissed.
66. There is no order as to costs.
J.D. VEDAN
ELRC Panellist