PSES731-15/16NW
PSES731-15/16NW
Award Date:
17 April 2016
Case Number: PSES731-15/16NW
Province: North West
Applicant: TENDERE TERTUIS
Respondent: Department of Education North West
Issue: Unfair Dismissal - Constructive Dismissal
Venue: the North West Department of Education North West District Office, Palladium House in Rustenburg.
Award Date: 17 April 2016
Arbitrator: Shaku Landela
Case Number : PSES731-15/16NW Date of Award : 17 April 2016
In the MATTER between:
TENDERE TERTUIS (APPLICANT)
And
DEPARTMENT OF EDUCATION AND SPORT DEVELOPMENT– NW (RESPONDENT)
Union/Applicant’s representative: Sulliman Attorneys
Union/Applicant’s address: PO Box 501833
Zinniaville
Rustenburg
Telephone: 079 3462 759
Telefax: (014) 538-0226
E-mail: titustendere@yahoo.com
Respondent’s representative: ABSENT
Respondent’s address: Private Bag X275
Mmabatho
2735
Telephone: (018) 387-4107
Telefax: (018) 387-3028
E-mail: pmeje@nwpg.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] The Arbitration Hearing was held on 11 April 2016 at 10h00 at the North West Department of Education North West District Office, Palladium House in Rustenburg.
[2] The Applicant, Titus Tendere, was present and represented by his legal representative Iqbhal Sulliman, an attorney at Sulliman Attorneys. The Respondent on the one hand, Department of Education and Sport Development – North West, was absent and unrepresented.
[3] After perusing the case file and having made enquiries from the Council as to why the Respondent was not present at the scheduled time of arbitration I was informed by a Council official that Lesego Lejaka, the Respondent’s Labour Relations Practitioner, said she was not aware of the scheduled arbitration but will enquire from her community on the state of affairs. This was also confirmed by the Applicant party that they had enquired at the reception of the district office and they were told that Lesego Lejaka said she was not aware of any arbitration hearing on the said date.
[4] At around 11h00 I approached the Labour Unit at the venue to enquire if the Respondent was not going to send anyone to explain whether the matter should be postponed or not. Lesego Lejaka was called and she said she could not find Pule Meje, director Labour Unit, or anyone else to give direction as they were all logged in other processes elsewhere in the province.
[5] The notification of set down was sent to the following email addresses: ‘pmeje@nwpg.gov.za’; ‘nnko@nwpg.gov.za’; ‘rdekoker@nwpg.gov.za’; ‘ephuswane@nwpg.gov.za. Proof that the notification e-mailed is in the case file held by the Council.
[6] I came to the conclusion to continue with default arbitration as I had satisfied myself that the Respondent was properly notified of the arbitration proceedings.
[7] This Arbitration was conducted in terms of section 138 of the Labour Relations Act 66 of 1995 (as amended).
ISSUE/S TO DECIDE
[8] I am tasked to determine whether the Applicant was dismissed and, if so found, to further determine whether his dismissal was fair.
BACKGROUND TO THE ISSUES
[9] The Applicant commenced employment with the Respondent from 01 September 2008 as a Post Level 1 educator based at Rauwane Sepeng High School at Tlhabane in Rustenburg until his alleged dismissal on 31 December 2015.
[10] He worked an uninterrupted period of seven (7) years and four (4) months for the Respondent.
[11] At the time of his alleged dismissal his salary scale was R213 237.00 per annum.
[12] The Applicant alleged that at the time of his dismissal there were no pre-dismissal procedures followed by the Respondent and no clear reason given for his dismissal.
[13] The Applicant therefore challenged both substantive and procedural fairness.
[14] The relief sought by the Applicant is to be reinstated to his full time Post Level 1 educator’s position at the same school and be retrospectively paid for the month of January 2016.
[15] The Applicant is currently working as a temporary educator from 01 February 2016.
SURVEY OF EVIDENCE AND ARGUMENT
[16] The Applicant, Titus Tendere, testified under oath confirming his employment details and status before and after he was dismissed on 31 December 2016 and his evidence is further summarised as set out below
[17] The applicant was never subjected to any pre-dismissal process like a disciplinary hearing before his dismissal.
[18] The applicant further testified that he was not given any reason for his dismissal.
[19] It is the Applicant’s testimony that he was a physical science teacher. He is wishing to be reinstated as a permanent educator in the same school teaching the same subject.
[20] He stated that he was told verbally by the Human Resource Officer at room 22 office of Bojanala district of the Respondent that he is no longer an employee of the department of education and he was in a state of shock.
[21] In January 2016, when the school reopened, the Applicant went to the school and the school principal, Mrs Molefe, told him that he was not supposed to have reported to the school but to stay at home until he was recalled back by the department.
[22] In closing the Applicant’s legal representative summarised his case.
[23] From the evidence that has been led it is clear that the Applicant was a permanent employee from 01 September 2008 until 31 December 2015.
[24] He was dismissed unfairly and without any fair procedure though he was committed to his job.
[25] The relief the Applicant is seeking is reinstatement to the position that he had occupied previously as a permanent employee of the Respondent and to be paid his January 2016 salary.
ANALYSIS OF EVIDENCE AND ARGUMENT
[26] Section 192 of the Labour Relations Act 66 of 1995 (as amended), provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must proof that the dismissal was fair.
[27] In his uncontested evidence the Applicant was able to establish that the HR Officer at the district office of the Respondent told him in December 2015 that he was no longer an employee of the department and this was also confirmed by the school principal when the school reopened in January 2016 that he was not supposed to have reported to the school until he was recalled back to the school by the department.
[28] Furthermore the Applicant testified that his employment status was altered by the Respondent and he is now employed on a temporary basis at the same school from February 2016. His January 2016 salary was not paid by the Respondent.
[29] In the absence of contrary evidence I find that the Applicant has been able to establish the existence of the dismissal.
[30] The Respondent failed to seize this opportunity to rebut the evidence of the Applicant that he was fairly dismissed though it was properly notified of this arbitration hearing.
Substantive Fairness
[31] In Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others [2008] 3 BLLR 197 (LAC) it was held that fairness is determined by mostly on the basis of the reason for the dismissal which the employer gave at the time of the dismissal.
[32] The above judicial judgment is also in line with item 2 (1) of the Code of Good Practice: Dismissal – Schedule 8 to the Labour Relations Act 66 of 1995 (as amended) which provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not the dismissal is for a fair reason is determined by the facts of the case.
[33] Item 2 (2) of the Code further suggests that the LRA recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee; the capacity of the employee; and the operational requirements of the employer’s business.
[34] It appears from the Applicant’s testimony that he was not given any valid reason for his dismissal.
[35] The Applicant’s dismissal, based on the evidence presented and in the absence of contrary evidence, is substantively unfair.
Procedural Fairness
[36] In the case of Avril Elizabeth Home for the Mentally handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) it was held that the employer was merely required to conduct an investigation and to give an employee or his/her representative an opportunity to state a case in response to the allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
[37] Item 4 of the Code of Good Practice: Dismissal also confirms what the Labour Court held in the Avril Elizabeth Home for the Handicapped case that normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to prepare a case in response to the allegations. The employee should be afforded an opportunity to state a case in response to the allegations and to be assisted by a trade union representative or fellow employee. After the enquiry the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision. If the employee is dismissed the employee should be given the reasons for dismissal and reminded of any rights to refer the matter to a Council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
[38] The Labour Court in the Avril Elizabeth Home case rejected a checklist approach to procedural fairness and further held that substantial compliance with procedural fairness is all that is required.
[39] The Applicant was never charged for any wrongdoing in accordance sections 16, 17 and 18 of the Employment of Educators Act 76 of 1998 (as amended) that deserves the sanction of dismissal.
[40] The Applicant testified that he was shocked when the HR Officer of the Respondent told him that he was no longer an employee of the department. No no pre-dismissal procedures were followed by the Respondent as required by Schedule 8 of the Code of Good Practice and the Avril Elizabeth Home Labour Court case.
[41] For the above reasons I find that the Applicant’s dismissal was procedurally unfair.
FINDING
[42] I find in the circumstances, and in the absence of contrary evidence, that the Applicant was indeed dismissed by the Respondent. His dismissal was both substantively and procedurally unfair as he was not given any reason for his dismissal and was never charged for any misconduct, or be it serious, to warrant dismissal.
[43] The equitable remedy as informed by the unjust and gross unfairness of the dismissal of the Applicant will be reinstatement to the full-time or permanent post level 1 educator’s position which the Applicant occupied prior to referring a dispute to the ELRC. The reinstatement will operate with retrospective effect from 1 January 2016. The remuneration due to the applicant as a result of the retrospective effect of the reinstatement will be three months salary, January 2016 salary included, calculated at the salary scale applicable to the Applicant at the time of his dismissal.
Calculations of the Retrospective Payment
R213 237-00 / 12 X 3 = R53 309.25
AWARD
[a] The Respondent, Department of Education and Sport Development – North West, is ordered to re-instate the Applicant, Titus Tendere, to his previous full time or permanent employment in the Post Level 1 Educator position he occupied prior to his dismissal on 31 December 2015 i.e. as a physical science educator at Rauwane Sepeng High School at Thabane near Rustenburg and on the same terms and conditions of employment that governed his employment prior to his dismissal.
[b] The reinstatement in paragraph (a) is to operate with retrospective effect with effect from 01 January 2016.
[c] As a result of the effect of retrospective reinstatement, the Respondent, Department of Education and Sport Development – North West, is further ordered to pay the Applicant, Titus Tendere, the amount of Fifty Three Thousand Three Hundred and Nine Rand and Twenty Five Cents (R53 309.25) i.e three months salaries calculated at his salary scale at the time of his dismissal as per the calculations in paragraph 43 above.
[d] The amount in paragraph (c) above is subject to applicable statutory deductions and becomes due and payable to the Applicant by no later than 30 May 2016.
Panellist: ___________________
Shaku Landela
EDUCATION
Sector: ____________________
Province: North West
Applicant: TENDERE TERTUIS
Respondent: Department of Education North West
Issue: Unfair Dismissal - Constructive Dismissal
Venue: the North West Department of Education North West District Office, Palladium House in Rustenburg.
Award Date: 17 April 2016
Arbitrator: Shaku Landela
Case Number : PSES731-15/16NW Date of Award : 17 April 2016
In the MATTER between:
TENDERE TERTUIS (APPLICANT)
And
DEPARTMENT OF EDUCATION AND SPORT DEVELOPMENT– NW (RESPONDENT)
Union/Applicant’s representative: Sulliman Attorneys
Union/Applicant’s address: PO Box 501833
Zinniaville
Rustenburg
Telephone: 079 3462 759
Telefax: (014) 538-0226
E-mail: titustendere@yahoo.com
Respondent’s representative: ABSENT
Respondent’s address: Private Bag X275
Mmabatho
2735
Telephone: (018) 387-4107
Telefax: (018) 387-3028
E-mail: pmeje@nwpg.gov.za
DETAILS OF HEARING AND REPRESENTATION
[1] The Arbitration Hearing was held on 11 April 2016 at 10h00 at the North West Department of Education North West District Office, Palladium House in Rustenburg.
[2] The Applicant, Titus Tendere, was present and represented by his legal representative Iqbhal Sulliman, an attorney at Sulliman Attorneys. The Respondent on the one hand, Department of Education and Sport Development – North West, was absent and unrepresented.
[3] After perusing the case file and having made enquiries from the Council as to why the Respondent was not present at the scheduled time of arbitration I was informed by a Council official that Lesego Lejaka, the Respondent’s Labour Relations Practitioner, said she was not aware of the scheduled arbitration but will enquire from her community on the state of affairs. This was also confirmed by the Applicant party that they had enquired at the reception of the district office and they were told that Lesego Lejaka said she was not aware of any arbitration hearing on the said date.
[4] At around 11h00 I approached the Labour Unit at the venue to enquire if the Respondent was not going to send anyone to explain whether the matter should be postponed or not. Lesego Lejaka was called and she said she could not find Pule Meje, director Labour Unit, or anyone else to give direction as they were all logged in other processes elsewhere in the province.
[5] The notification of set down was sent to the following email addresses: ‘pmeje@nwpg.gov.za’; ‘nnko@nwpg.gov.za’; ‘rdekoker@nwpg.gov.za’; ‘ephuswane@nwpg.gov.za. Proof that the notification e-mailed is in the case file held by the Council.
[6] I came to the conclusion to continue with default arbitration as I had satisfied myself that the Respondent was properly notified of the arbitration proceedings.
[7] This Arbitration was conducted in terms of section 138 of the Labour Relations Act 66 of 1995 (as amended).
ISSUE/S TO DECIDE
[8] I am tasked to determine whether the Applicant was dismissed and, if so found, to further determine whether his dismissal was fair.
BACKGROUND TO THE ISSUES
[9] The Applicant commenced employment with the Respondent from 01 September 2008 as a Post Level 1 educator based at Rauwane Sepeng High School at Tlhabane in Rustenburg until his alleged dismissal on 31 December 2015.
[10] He worked an uninterrupted period of seven (7) years and four (4) months for the Respondent.
[11] At the time of his alleged dismissal his salary scale was R213 237.00 per annum.
[12] The Applicant alleged that at the time of his dismissal there were no pre-dismissal procedures followed by the Respondent and no clear reason given for his dismissal.
[13] The Applicant therefore challenged both substantive and procedural fairness.
[14] The relief sought by the Applicant is to be reinstated to his full time Post Level 1 educator’s position at the same school and be retrospectively paid for the month of January 2016.
[15] The Applicant is currently working as a temporary educator from 01 February 2016.
SURVEY OF EVIDENCE AND ARGUMENT
[16] The Applicant, Titus Tendere, testified under oath confirming his employment details and status before and after he was dismissed on 31 December 2016 and his evidence is further summarised as set out below
[17] The applicant was never subjected to any pre-dismissal process like a disciplinary hearing before his dismissal.
[18] The applicant further testified that he was not given any reason for his dismissal.
[19] It is the Applicant’s testimony that he was a physical science teacher. He is wishing to be reinstated as a permanent educator in the same school teaching the same subject.
[20] He stated that he was told verbally by the Human Resource Officer at room 22 office of Bojanala district of the Respondent that he is no longer an employee of the department of education and he was in a state of shock.
[21] In January 2016, when the school reopened, the Applicant went to the school and the school principal, Mrs Molefe, told him that he was not supposed to have reported to the school but to stay at home until he was recalled back by the department.
[22] In closing the Applicant’s legal representative summarised his case.
[23] From the evidence that has been led it is clear that the Applicant was a permanent employee from 01 September 2008 until 31 December 2015.
[24] He was dismissed unfairly and without any fair procedure though he was committed to his job.
[25] The relief the Applicant is seeking is reinstatement to the position that he had occupied previously as a permanent employee of the Respondent and to be paid his January 2016 salary.
ANALYSIS OF EVIDENCE AND ARGUMENT
[26] Section 192 of the Labour Relations Act 66 of 1995 (as amended), provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must proof that the dismissal was fair.
[27] In his uncontested evidence the Applicant was able to establish that the HR Officer at the district office of the Respondent told him in December 2015 that he was no longer an employee of the department and this was also confirmed by the school principal when the school reopened in January 2016 that he was not supposed to have reported to the school until he was recalled back to the school by the department.
[28] Furthermore the Applicant testified that his employment status was altered by the Respondent and he is now employed on a temporary basis at the same school from February 2016. His January 2016 salary was not paid by the Respondent.
[29] In the absence of contrary evidence I find that the Applicant has been able to establish the existence of the dismissal.
[30] The Respondent failed to seize this opportunity to rebut the evidence of the Applicant that he was fairly dismissed though it was properly notified of this arbitration hearing.
Substantive Fairness
[31] In Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others [2008] 3 BLLR 197 (LAC) it was held that fairness is determined by mostly on the basis of the reason for the dismissal which the employer gave at the time of the dismissal.
[32] The above judicial judgment is also in line with item 2 (1) of the Code of Good Practice: Dismissal – Schedule 8 to the Labour Relations Act 66 of 1995 (as amended) which provides that a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment. Whether or not the dismissal is for a fair reason is determined by the facts of the case.
[33] Item 2 (2) of the Code further suggests that the LRA recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee; the capacity of the employee; and the operational requirements of the employer’s business.
[34] It appears from the Applicant’s testimony that he was not given any valid reason for his dismissal.
[35] The Applicant’s dismissal, based on the evidence presented and in the absence of contrary evidence, is substantively unfair.
Procedural Fairness
[36] In the case of Avril Elizabeth Home for the Mentally handicapped v CCMA and others (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) it was held that the employer was merely required to conduct an investigation and to give an employee or his/her representative an opportunity to state a case in response to the allegations after a reasonable period and thereafter to take a decision and give the employee notice thereof.
[37] Item 4 of the Code of Good Practice: Dismissal also confirms what the Labour Court held in the Avril Elizabeth Home for the Handicapped case that normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to prepare a case in response to the allegations. The employee should be afforded an opportunity to state a case in response to the allegations and to be assisted by a trade union representative or fellow employee. After the enquiry the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision. If the employee is dismissed the employee should be given the reasons for dismissal and reminded of any rights to refer the matter to a Council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement.
[38] The Labour Court in the Avril Elizabeth Home case rejected a checklist approach to procedural fairness and further held that substantial compliance with procedural fairness is all that is required.
[39] The Applicant was never charged for any wrongdoing in accordance sections 16, 17 and 18 of the Employment of Educators Act 76 of 1998 (as amended) that deserves the sanction of dismissal.
[40] The Applicant testified that he was shocked when the HR Officer of the Respondent told him that he was no longer an employee of the department. No no pre-dismissal procedures were followed by the Respondent as required by Schedule 8 of the Code of Good Practice and the Avril Elizabeth Home Labour Court case.
[41] For the above reasons I find that the Applicant’s dismissal was procedurally unfair.
FINDING
[42] I find in the circumstances, and in the absence of contrary evidence, that the Applicant was indeed dismissed by the Respondent. His dismissal was both substantively and procedurally unfair as he was not given any reason for his dismissal and was never charged for any misconduct, or be it serious, to warrant dismissal.
[43] The equitable remedy as informed by the unjust and gross unfairness of the dismissal of the Applicant will be reinstatement to the full-time or permanent post level 1 educator’s position which the Applicant occupied prior to referring a dispute to the ELRC. The reinstatement will operate with retrospective effect from 1 January 2016. The remuneration due to the applicant as a result of the retrospective effect of the reinstatement will be three months salary, January 2016 salary included, calculated at the salary scale applicable to the Applicant at the time of his dismissal.
Calculations of the Retrospective Payment
R213 237-00 / 12 X 3 = R53 309.25
AWARD
[a] The Respondent, Department of Education and Sport Development – North West, is ordered to re-instate the Applicant, Titus Tendere, to his previous full time or permanent employment in the Post Level 1 Educator position he occupied prior to his dismissal on 31 December 2015 i.e. as a physical science educator at Rauwane Sepeng High School at Thabane near Rustenburg and on the same terms and conditions of employment that governed his employment prior to his dismissal.
[b] The reinstatement in paragraph (a) is to operate with retrospective effect with effect from 01 January 2016.
[c] As a result of the effect of retrospective reinstatement, the Respondent, Department of Education and Sport Development – North West, is further ordered to pay the Applicant, Titus Tendere, the amount of Fifty Three Thousand Three Hundred and Nine Rand and Twenty Five Cents (R53 309.25) i.e three months salaries calculated at his salary scale at the time of his dismissal as per the calculations in paragraph 43 above.
[d] The amount in paragraph (c) above is subject to applicable statutory deductions and becomes due and payable to the Applicant by no later than 30 May 2016.
Panellist: ___________________
Shaku Landela
EDUCATION
Sector: ____________________