PSES817-17/18 KZN
PSES817-17/18 KZN
Award Date:
13 August 2020
Case Number: PSES817-17/18 KZN
Province: KwaZulu-Natal
Applicant: AMPOFO, J
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Constructive Dismissal
Venue: District Office in Port Shepstone
Award Date: 13 August 2020
Arbitrator: Lindiwe Makhanya
IN THE ELRC ARBITRATION
BETWEEN:
AMPOFO, J“the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”
ARBITRATION AWARD
Case Number: PSES817-17/18 KZN
Date of award: 13 August 2020
ELRC Arbitrator: Lindiwe Makhanya
Respondent address: 228 Pietermaritz street, Pietermaritzburg 3200
Tel: (033) 846-5200
Fax: (033) 846-5129
Email address: bheki.mkhanyawo@kzndoc.gov.za
Applicant’s address: P.O. Box 73 Port Shepstone 4240
Tel: (039) 682-2403
Fax: (039) 682-4149
Email: bhavna@moorsdlamini.co.za
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. This matter was scheduled for arbitration before me on 27 August 2019, 22 October 2019 and 30 January 2020 when it was finalised at the Respondent’s premises, District Office in Port Shepstone. It was held under the auspices of the Education Labour Relations Council (ELRC) / (“the council”) in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).
2. The Applicant was represented by Mr W. Hardy, an Attorney from Moors & Dlamini Attorneys and the Respondent was represented by Mr EDB. Mpembe from Labour Relations.
PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED
3. No preliminary or jurisdictional issues were raised and ELRC has jurisdiction to hear the matter.
4. The matter was referred to as a termination of the contract with or without notice to the ELRC. The Applicant sought retrospective reinstatement if the award is made in his favour.
BACKGROUND TO THE DISPUTE
5. The Respondent is the Department of education which is one of the government’s executive departments assigned to education matters and located in Port Shepstone, KwaZulu Natal. The Applicant was employed by the Respondent as a temporary educator on 1 February 2011 based at Vumazonke junior secondary school. He was earning a salary of R25031.95
6. The Applicant on his opening statement claimed that he was unfairly dismissed as his contract of employment with the Respondent was terminated on 16 January 2018. He also claimed that the Respondent had not paid his salary from October 2016 until January 2018. The Respondent on its opening statement denied that there was a dismissal but, claimed that the Applicant’s contract of employment automatically terminated on 9 October 2016 when he failed to submit a valid work permit as required by its policy. The Respondent also denied that the Applicant had performed any duties after his contract had ended.
SURVEY OF EVIDENCE AND ARGUMENT
7. Only the Respondent presented a bundle of documents. The Applicant requested to use the same bundle. The bundle was marked as “common bundle”.
8. The following is a brief summary of the relevant evidence led by the parties. It is not intended to be exhaustive; however, I have considered all the evidence led and arguments submitted in reaching my decision. Both parties submitted written closing arguments on 5 February 2020.
9. When the Respondent had concluded its case, the Applicant’s attorney stated on record that the Applicant was not going to testify nor call any witnesses.
SUMMARY OF EVIDENCE AND ARGUMENTS
THE RESPONDENT’S CASE
10. Mr Nhlanhla Zungu is employed as a Circuit Manager at Harry Gwala District, he testified under oath that the Applicant had been employed as a foreign educator since 01 February 2011 until 9 October 2016 when his contract ended after he failed to submit a valid work permit.
11. He pointed to page 49 to 53 of the bundle where the Applicant had signed documents titled “Appointment of temporary/ substitute educator” on 24 January 2014.
12. Zungu also referred to the department of education policy on employment of foreign educators on page 32 of the bundle point 7.13 where it is stated that no foreign educator may be appointed permanently unless such an educator obtained permanent residency in terms of the Immigration Act. In the case of the Applicant, he had been employed temporarily and he failed to have his contract renewed as he did not have a valid work permit after 9 October 2016.
13. He said the Applicant was never dismissed but his contract came to an end after he was unable to present a valid work permit. He pointed to page 32 point 8.1 where it is stated that the employment of foreign educators in substantive posts will be on a contract which will extend the date of the assumption of duty until the end of the academic year or until the date of expiry of the work permit or whichever is earlier. He said the Applicant had been aware that for his contract to be renewed, he needed to present a valid work permit which he did not.
14. According to Zungu, he had no knowledge that the Applicant had been reporting for duty after his contract had ended. He further testified that the Respondent was not responsible for the educators who report for duty when they do not have relevant documents nor given any appointment letters by the head of the department.
15. At one stage, after the Applicant’s contract had expired, the Applicant arrived at his office with the principal of the school where he presented a work permit which was later on declared by Department of Home Affairs as fraudulent as seen on page 26 of the bundle.
16. Under cross-examination, he admitted that a form on page 49 is not the Applicant’s contract of employment, but it forms part of it and that the Applicant’s signature was not on this page because some of the pages were missing.
17. Zungu did not deny that the Applicant had at some stage worked after his work permit had expired.
18. He reiterated that when the Applicant brought an invalid work permit to him, he had told him to sort it out as he was of the view that the matter would have been resolved sooner.
19. He denied any knowledge of the Applicant being employed by the school governing body after his contract had ended.
20. He admitted that the Respondent failed to comply with its own policy as the Applicant was employed to teach subjects which are not scarce, and this was contrary to the policy. The Applicant was not supposed to be employed in the first place.
21. He maintained that the Applicant was not dismissed but his contract ended after he failed to submit a valid work permit.
22. During re-examination, he emphasized that it was the Applicant’s responsibility to obtain a valid work permit and that foreign educators are not employed on a permanent basis.
23. Mr Sicelo Zimema testified under oath that he is employed as an Assistant Director HR at Harry Gwala District since October 2003. He explained the process of employing foreign educators that they get appointed on a one-year contract which gets renewed when the work permit is valid. Upon the expiry date of the work permit, the HR system automatically stops the salary payment of that foreign educator and the contract automatically ends.
24. It is the educator’s responsibility to renew his or her work permit. All foreign educators who get employed by the Respondent are aware of this.
25. He stated that the foreign educator whose work permit has expired would need to go to the circuit office to submit the new work permit to be offered another employment contract. No educator can resume duty without signing an assumption of duty letter. He referred to page 61 where the Applicant had signed the assumption of duty letter.
26. The testimony of Zimema corroborated with that of Zungu regarding the appointment of foreign educators as per the policy of the Respondent.
27. Under cross-examination, when asked where was the Applicant’s contract of employment, he said he did not have it with him. He continued to state that before the contract of employment is signed, an assumption of duty letter must be signed but from page 61 an assumption of duty letter was signed later after the Applicant had worked.
28. He did not have an assumption of duty form which was signed when the Applicant was initially appointed.
29. He maintained that an educator whose contract has ended or has no valid work permit cannot be allowed to continue working and that the principal must report the matter to the circuit manager.
30. During re-examination, he emphasized that the principal must monitor and ensure that educators who are not supposed to be at school are not there as the Respondent has no mechanism in place to do so.
THE APPLICANT’S CASE
31. The Applicant did not testify nor call any witnesses.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. The issue to be determined in this matter is whether the termination of the Applicants’ contract of employment with the Respondent constituted a dismissal in terms of section 186(1) (a) of the Labour Relations Act 66 of 1995.
33. The Respondent denied that the Applicant had been dismissed but claimed that the Applicant’s contract had ended after his work permit had expired. The Applicant claimed that he had been dismissed.
34. The Applicant in his closing arguments submitted that since the ruling that was issued on 04 December 2018 stated that the Applicant had been dismissed, there was no need for him to lead any evidence. It must be noted that the ruling pronounces on the jurisdiction of the council to hear the matter. The ruling did not state whether the dismissal was fair or unfair which is the reason that both parties were given an opportunity to state their case at this arbitration.
35. The Applicant in his opening statement wished to be paid for October 2016 until January 2018 when he was dismissed. The evidence of Zungu revealed that he may have some knowledge that the Applicant did work after his work permit had expired. However, no evidence was led by the Applicant as he did not testify. It is therefore not clear as to how long did the Applicant work after 9 October 2016.
36. The Applicant forfeited his right to be heard and therefore his version could not be tested as the Respondent could not cross-examine him. It is my view that the Applicant has failed to establish a prima facie case. The elements of the claim put forward by the Applicant at the opening statement could not be proven. In De Beer v Trudon (Pty) Ltd (1994) 15 IJL 1057 (LAC) the court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 IJL 1057 (LAC) held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without an evidential basis would be no more than speculation.
37. The Respondent stated that the Applicant’s contract of employment was terminated lawfully, and the supporting documents were presented in this regard. The Respondent referred to its policy on employment of foreign educators which clearly states that no foreign educator may be employed permanently and its states that the contract of foreign educators will end at the expiry of the work permit. I accept that the Applicant was not dismissed but his contract came to an end upon the expiry date of his work permit. This principle was upheld in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) the court held that a fixed-term contract terminates by operation of law at the end of its term. Such termination does not constitute a “dismissal”.
38. I am satisfied with the testimony presented by the Respondent. The same cannot be said for the Applicant who failed to testify. Based on the evidence presented, I find that there was no dismissal, the contract terminated by operation of law which was upon expiry of the work permit, therefore dismissal could not have occurred.
39. In these premises I find the following to be in order.
AWARD
40. The Applicant has failed to prove that the termination of his contract of employment constituted a dismissal.
41. The referral made by the Applicant is accordingly dismissed.
42. There is no order as to costs.
L. MAKHANYA
PANELLIST
Province: KwaZulu-Natal
Applicant: AMPOFO, J
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Dismissal - Constructive Dismissal
Venue: District Office in Port Shepstone
Award Date: 13 August 2020
Arbitrator: Lindiwe Makhanya
IN THE ELRC ARBITRATION
BETWEEN:
AMPOFO, J“the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”
ARBITRATION AWARD
Case Number: PSES817-17/18 KZN
Date of award: 13 August 2020
ELRC Arbitrator: Lindiwe Makhanya
Respondent address: 228 Pietermaritz street, Pietermaritzburg 3200
Tel: (033) 846-5200
Fax: (033) 846-5129
Email address: bheki.mkhanyawo@kzndoc.gov.za
Applicant’s address: P.O. Box 73 Port Shepstone 4240
Tel: (039) 682-2403
Fax: (039) 682-4149
Email: bhavna@moorsdlamini.co.za
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
1. This matter was scheduled for arbitration before me on 27 August 2019, 22 October 2019 and 30 January 2020 when it was finalised at the Respondent’s premises, District Office in Port Shepstone. It was held under the auspices of the Education Labour Relations Council (ELRC) / (“the council”) in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).
2. The Applicant was represented by Mr W. Hardy, an Attorney from Moors & Dlamini Attorneys and the Respondent was represented by Mr EDB. Mpembe from Labour Relations.
PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED
3. No preliminary or jurisdictional issues were raised and ELRC has jurisdiction to hear the matter.
4. The matter was referred to as a termination of the contract with or without notice to the ELRC. The Applicant sought retrospective reinstatement if the award is made in his favour.
BACKGROUND TO THE DISPUTE
5. The Respondent is the Department of education which is one of the government’s executive departments assigned to education matters and located in Port Shepstone, KwaZulu Natal. The Applicant was employed by the Respondent as a temporary educator on 1 February 2011 based at Vumazonke junior secondary school. He was earning a salary of R25031.95
6. The Applicant on his opening statement claimed that he was unfairly dismissed as his contract of employment with the Respondent was terminated on 16 January 2018. He also claimed that the Respondent had not paid his salary from October 2016 until January 2018. The Respondent on its opening statement denied that there was a dismissal but, claimed that the Applicant’s contract of employment automatically terminated on 9 October 2016 when he failed to submit a valid work permit as required by its policy. The Respondent also denied that the Applicant had performed any duties after his contract had ended.
SURVEY OF EVIDENCE AND ARGUMENT
7. Only the Respondent presented a bundle of documents. The Applicant requested to use the same bundle. The bundle was marked as “common bundle”.
8. The following is a brief summary of the relevant evidence led by the parties. It is not intended to be exhaustive; however, I have considered all the evidence led and arguments submitted in reaching my decision. Both parties submitted written closing arguments on 5 February 2020.
9. When the Respondent had concluded its case, the Applicant’s attorney stated on record that the Applicant was not going to testify nor call any witnesses.
SUMMARY OF EVIDENCE AND ARGUMENTS
THE RESPONDENT’S CASE
10. Mr Nhlanhla Zungu is employed as a Circuit Manager at Harry Gwala District, he testified under oath that the Applicant had been employed as a foreign educator since 01 February 2011 until 9 October 2016 when his contract ended after he failed to submit a valid work permit.
11. He pointed to page 49 to 53 of the bundle where the Applicant had signed documents titled “Appointment of temporary/ substitute educator” on 24 January 2014.
12. Zungu also referred to the department of education policy on employment of foreign educators on page 32 of the bundle point 7.13 where it is stated that no foreign educator may be appointed permanently unless such an educator obtained permanent residency in terms of the Immigration Act. In the case of the Applicant, he had been employed temporarily and he failed to have his contract renewed as he did not have a valid work permit after 9 October 2016.
13. He said the Applicant was never dismissed but his contract came to an end after he was unable to present a valid work permit. He pointed to page 32 point 8.1 where it is stated that the employment of foreign educators in substantive posts will be on a contract which will extend the date of the assumption of duty until the end of the academic year or until the date of expiry of the work permit or whichever is earlier. He said the Applicant had been aware that for his contract to be renewed, he needed to present a valid work permit which he did not.
14. According to Zungu, he had no knowledge that the Applicant had been reporting for duty after his contract had ended. He further testified that the Respondent was not responsible for the educators who report for duty when they do not have relevant documents nor given any appointment letters by the head of the department.
15. At one stage, after the Applicant’s contract had expired, the Applicant arrived at his office with the principal of the school where he presented a work permit which was later on declared by Department of Home Affairs as fraudulent as seen on page 26 of the bundle.
16. Under cross-examination, he admitted that a form on page 49 is not the Applicant’s contract of employment, but it forms part of it and that the Applicant’s signature was not on this page because some of the pages were missing.
17. Zungu did not deny that the Applicant had at some stage worked after his work permit had expired.
18. He reiterated that when the Applicant brought an invalid work permit to him, he had told him to sort it out as he was of the view that the matter would have been resolved sooner.
19. He denied any knowledge of the Applicant being employed by the school governing body after his contract had ended.
20. He admitted that the Respondent failed to comply with its own policy as the Applicant was employed to teach subjects which are not scarce, and this was contrary to the policy. The Applicant was not supposed to be employed in the first place.
21. He maintained that the Applicant was not dismissed but his contract ended after he failed to submit a valid work permit.
22. During re-examination, he emphasized that it was the Applicant’s responsibility to obtain a valid work permit and that foreign educators are not employed on a permanent basis.
23. Mr Sicelo Zimema testified under oath that he is employed as an Assistant Director HR at Harry Gwala District since October 2003. He explained the process of employing foreign educators that they get appointed on a one-year contract which gets renewed when the work permit is valid. Upon the expiry date of the work permit, the HR system automatically stops the salary payment of that foreign educator and the contract automatically ends.
24. It is the educator’s responsibility to renew his or her work permit. All foreign educators who get employed by the Respondent are aware of this.
25. He stated that the foreign educator whose work permit has expired would need to go to the circuit office to submit the new work permit to be offered another employment contract. No educator can resume duty without signing an assumption of duty letter. He referred to page 61 where the Applicant had signed the assumption of duty letter.
26. The testimony of Zimema corroborated with that of Zungu regarding the appointment of foreign educators as per the policy of the Respondent.
27. Under cross-examination, when asked where was the Applicant’s contract of employment, he said he did not have it with him. He continued to state that before the contract of employment is signed, an assumption of duty letter must be signed but from page 61 an assumption of duty letter was signed later after the Applicant had worked.
28. He did not have an assumption of duty form which was signed when the Applicant was initially appointed.
29. He maintained that an educator whose contract has ended or has no valid work permit cannot be allowed to continue working and that the principal must report the matter to the circuit manager.
30. During re-examination, he emphasized that the principal must monitor and ensure that educators who are not supposed to be at school are not there as the Respondent has no mechanism in place to do so.
THE APPLICANT’S CASE
31. The Applicant did not testify nor call any witnesses.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. The issue to be determined in this matter is whether the termination of the Applicants’ contract of employment with the Respondent constituted a dismissal in terms of section 186(1) (a) of the Labour Relations Act 66 of 1995.
33. The Respondent denied that the Applicant had been dismissed but claimed that the Applicant’s contract had ended after his work permit had expired. The Applicant claimed that he had been dismissed.
34. The Applicant in his closing arguments submitted that since the ruling that was issued on 04 December 2018 stated that the Applicant had been dismissed, there was no need for him to lead any evidence. It must be noted that the ruling pronounces on the jurisdiction of the council to hear the matter. The ruling did not state whether the dismissal was fair or unfair which is the reason that both parties were given an opportunity to state their case at this arbitration.
35. The Applicant in his opening statement wished to be paid for October 2016 until January 2018 when he was dismissed. The evidence of Zungu revealed that he may have some knowledge that the Applicant did work after his work permit had expired. However, no evidence was led by the Applicant as he did not testify. It is therefore not clear as to how long did the Applicant work after 9 October 2016.
36. The Applicant forfeited his right to be heard and therefore his version could not be tested as the Respondent could not cross-examine him. It is my view that the Applicant has failed to establish a prima facie case. The elements of the claim put forward by the Applicant at the opening statement could not be proven. In De Beer v Trudon (Pty) Ltd (1994) 15 IJL 1057 (LAC) the court with approval referred to the matter of FAWU and others v Amalgamated Beverage Industries Ltd (1994) 15 IJL 1057 (LAC) held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without an evidential basis would be no more than speculation.
37. The Respondent stated that the Applicant’s contract of employment was terminated lawfully, and the supporting documents were presented in this regard. The Respondent referred to its policy on employment of foreign educators which clearly states that no foreign educator may be employed permanently and its states that the contract of foreign educators will end at the expiry of the work permit. I accept that the Applicant was not dismissed but his contract came to an end upon the expiry date of his work permit. This principle was upheld in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) the court held that a fixed-term contract terminates by operation of law at the end of its term. Such termination does not constitute a “dismissal”.
38. I am satisfied with the testimony presented by the Respondent. The same cannot be said for the Applicant who failed to testify. Based on the evidence presented, I find that there was no dismissal, the contract terminated by operation of law which was upon expiry of the work permit, therefore dismissal could not have occurred.
39. In these premises I find the following to be in order.
AWARD
40. The Applicant has failed to prove that the termination of his contract of employment constituted a dismissal.
41. The referral made by the Applicant is accordingly dismissed.
42. There is no order as to costs.
L. MAKHANYA
PANELLIST