ELRC644-20/21 EC
Text
ELRC 172-21/22EC
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Award Date:
14 September 2021
Case No. ELRC 172-21/22EC
In the matter between
NAPTOSA obo VILJOEN, MENISA JANLI Applicant/Employee
and
DEPARTMENT OF EDUCATION: GAUTENG Respondent/ Employer
ARBITRATOR: YOLISA NDZUTA
HEARD: 6 August 2021
DATE OF AWARD: 14 September 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186 (2)(a) read with section 188(1) - unfair labour practice
SUMMARY: Whether the Employee was appointed by the employer prior to the issuing of Letter of the Offer of Employment
SUMMARY: Is the employer must remunerate an employee who executed services prior to receipt of the Letter of the Offer of Employment.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down as an arbitration to be heard before me over zoom on the 6th of August. During these proceedings, the Applicant, Mrs Janli Viljoen was represented by Advocate Saayman of Naptosa while the Respondent, Department of Education: Eastern Cape was represented by Mrs. Slabbert.
2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.
3. The parties advised that they convened a Pre-Arbitration Meeting and as such concluded a Pre-Arbitration Minute which was filed and formed part of the case file.
THE ISSUE IN DISPUTE
4 I am required to determine whether the Applicant has an unfair labour practices perpetrated against it by the Respondent. I am further required to determine whether the Applicant is entitled to remuneration and benefits applicable to employees for the period of time she worked prior to the issuing of a Letter of Employment from the Respondent.
THE BACKGROUND TO THE DISPUTE
5. In these proceedings the Applicant referred an unfair labour practice on the basis that she had not been remunerated and had not received benefits for all the months she had executed services at the Respondent.
6. The Applicant had approached St Theresa RC Primary School with the prospects of securing employment after she completed her tertiary studies. She was then invited by the principal to assist due to a vacancy (which was due to be gazetted) that due to open.
7. The Applicant claims that she signed an assumption of duty and thus accrued all rights and responsibilities as an employee of the Respondent from the date reflected on the assumption of duty.
8. The Respondent opposed the Applicant’s submissions.
9. The Respondent argued that the employment only commenced on the date reflected on the Letter of Employment.
SURVEY OF EVIDENCE AND ARGUMENT
11. The Applicant prepared one (1) bundle of evidence; the parties then agreed to rely on the latter evidence as a common bundle.
12. The latter bundle was not disputed as such was admitted into evidence.
13. The Applicant (Ms Viljoen) was called to testify under oath and as a witness in support of her case. A summary of her testimony will be outlined herein below.
14. The Respondent called 1 witness (Mr Sauls) in support of its case. A summary of his testimony will be outlined herein below.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Seeing that this is a dispute relating to an alleged unfair labour practice, the Applicant bears the onus of proof and thus same Applicant bears the duty to begin. I shall assess the evidence of the Applicant first then I shall consider the evidence of the Respondent.
16. The parties further elected to make oral arguments to substantiate their respective case. I shall address said arguments and the averments made during the arbitration herein under.
17. The Applicant was called as the only witness to her case.
18. The Applicant (Mrs Viljoen) placed the following testimony- she undertook to execute services at the school (St Theresa) in January 2020 when she was requested to assist owing to the retirement of an educator in same school.
19. Ms Viljoen testified that she only signed an assumption of duty in early March 2020 when same (Assumption of duty) was issued by the school’s principal. She testified that she was advised by the principal that a level 1 vacancy would be advertised.
20. Ms Viljoen testified that since the date of assuming her duties she was under the impression that she was working for the Respondent and thus considered the Department of Education as her employer. She testified that she taught during the months of March 2020, April and May 2020, she specified that even when the learners were learning from home (due to the Covid-19 lock down) all educators were expected to hand out booklets of worksheets and maintain records of outcomes in the distance learning. Her testimony was that she was one of the educators who did same. She also testified that as an educator she assisted in handing out food parcels prepared by the school.
21. Ms Viljoen testified that the Respondent was notified of her appointment and presence at St Theresa since February 2020. She also testified that during the months of February 2020 to May 2020 she received a stipend from the school which was due to be refunded by her after she received payment from the Respondent for the latter months.
22. Under cross-examination Ms Viljoen testified that she was paid by the SGB on February 2020 to May 2020 and she conceded that her employer was the SGB from February 2020 until the date of the assumption of duty. She conceded that the assumption of duty in March 2020 and only received the Offer of Appointment in April 2020 however she explained that there was an administrative disruption at the Department that caused the delay. Ms Viljoen maintained that the stipend was not a salary but a courteous amount that she was due to return (refund) to the SGB. Mrs Viljoen testified that she was advised by the principal that the Department of Education would only place her on payroll in June however she would be paid her April to May 2020 salary too. She also confirmed that she was others had undergone the recruitment process prior to the appointment.
23. My analysis of the of Ms Viljoen that she was a credible witness. When cross-examined Ms Viljoen stood firm on her version as such even when Ms Slabbert tried introducing alternative version, she stood by the averment that she was an employee of the Respondent from the date of the assumption of duty. Even when questioned about offering her services during the lockdown level 5 period, she stood firm that she considered herself the teacher of the designated class as such she executed tasks relating to the designated class.
24. The Respondent called one witness, being Mr Raymond Sauls. He attested as to how Ms Viljoen was appointed. He testified that Letter of Offer of occupation was only issued in April 2020 and not earlier. He testified that Ms Viljoen started in February 2020 however he had not made any commitment to a post as only the Department of Education can decisions relating to appointment.
25. The Respondent’s witnesses further attested that the ‘stipend’ is nonrefundable to the SGB as it is understood that appointed parties meet their living needs whilst being enrolled on the payroll system. He attended that the stipend only became a loan from the date of appointment.
26. In relation to charge and the offer of employment letter, he attested that Ms Viljoen received same on the 1st of April 2020 and confirmed that Ms Viljoen had executed services during April 2020 to June 2020. Mr Saul further attested that the request for an amendment of the assumption of duty that it was done only after he (Mr Sauls) had enquired about the payments due to Ms Viljoen. However he attested that in so far as the assumption of duty dated March 2020 that it was sent in on a request by the Respondent as such when he enquired about Ms Viljoen in June 2020, that is when he was requested to make an amendment to the assumption of duty.
27. The parties agreed to rely on a common evidence bundle which encompassed with it several documents. The admitting of said bundle documents into evidence was not objected to save for the singed assumption of duty dated March 2020.
28. My analysis of the Respondent’s witness is that he was honest. He maintained that there was no position promised to the Applicant. He further maintained how the stipend was non-refundable to recipients until such time same recipient is regarded a full-time employee of the Respondent. He was asked about the service of April and May 2020 to which even during cross-examination he maintained that Ms Viljoen had reimbursed the SGB for the stipend because she was an employee of the Respondent during April and May 2020.
29. As indicated above, the parties elected to submit oral arguments thereto I note the following:
29.1 The Applicant accepted the date of letter of appointment as the date of official appointment.
29.2 The Respondent’s witness maintained that the Applicant was an employee of Respondent during the months of April 2020 to May 2020.
29.3 Though the Respondent’s argument is that the Applicant only commenced service when schools adopted a hybrid attendance system in June 2020, its own witness contradicted that notion.
30. The matter at hand considered the notion of benefits and the provision of such benefits however more noteworthy in this matter is that one carries the obligation of proving when the of employment is in order to establish when said benefits accrue. To the latter we refer to Wyeth SA (Pty) Ltd v Manqele and Others (JA 50/03) [2005] ZALAC 1 (23 March 2005) wherein the court considered when one is considered an employee or not. The court in the latter case considered the application of the Parol Evidence Rule in an employment contract and ruled that when one meets the statutory criteria of what constitutes an employee then such is not disputable.
31. It is evident from the evidence that the Applicant that she was an employee of the Respondent from the date do the letter of appointment.
32. Now we turn to the question of an unfair labour practice and the provision of benefits in this matter.
33. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
34. More important in this matter was the issue of evidence to support the notion that the Applicant was indeed employed by the Respondent from the date of executing her services, herein we refer to the Employment of Educators Act, 76 of 1998 wherein the specific parties granted the permission to employ educators are enlisted in section 3 of the aforementioned Act to which a principal of a school is not included.
35. In cases of unfair labour practice onus of proof lies on the Applicant to prove that they had been subjected to such and to explain which specific one. The Respondent is responsible to established that the Applicant’s version is not probable and that there wasn’t such perpetrated against same Applicant.
36. In the premises I make the following award.
AWARD
37. The Applicant proven that she was an employee during the months of April to June 2020 and that on a balance of probabilities that she was employed and that she was entitled to said benefits.
38. The Applicant has further established that she has endured an unfair labour practice in the non-provision of said benefits.
39. I find in favour of the Applicant and she is entitled to the R 49 586.88 for the two months’ salary and housing allowance for the months of April to June 2020.
Yolisa Ndzuta
Panelist: ELRC
In the matter between
NAPTOSA obo VILJOEN, MENISA JANLI Applicant/Employee
and
DEPARTMENT OF EDUCATION: GAUTENG Respondent/ Employer
ARBITRATOR: YOLISA NDZUTA
HEARD: 6 August 2021
DATE OF AWARD: 14 September 2021
SUMMARY: Labour Relations Act 66 of 1995 – Section 186 (2)(a) read with section 188(1) - unfair labour practice
SUMMARY: Whether the Employee was appointed by the employer prior to the issuing of Letter of the Offer of Employment
SUMMARY: Is the employer must remunerate an employee who executed services prior to receipt of the Letter of the Offer of Employment.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down as an arbitration to be heard before me over zoom on the 6th of August. During these proceedings, the Applicant, Mrs Janli Viljoen was represented by Advocate Saayman of Naptosa while the Respondent, Department of Education: Eastern Cape was represented by Mrs. Slabbert.
2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.
3. The parties advised that they convened a Pre-Arbitration Meeting and as such concluded a Pre-Arbitration Minute which was filed and formed part of the case file.
THE ISSUE IN DISPUTE
4 I am required to determine whether the Applicant has an unfair labour practices perpetrated against it by the Respondent. I am further required to determine whether the Applicant is entitled to remuneration and benefits applicable to employees for the period of time she worked prior to the issuing of a Letter of Employment from the Respondent.
THE BACKGROUND TO THE DISPUTE
5. In these proceedings the Applicant referred an unfair labour practice on the basis that she had not been remunerated and had not received benefits for all the months she had executed services at the Respondent.
6. The Applicant had approached St Theresa RC Primary School with the prospects of securing employment after she completed her tertiary studies. She was then invited by the principal to assist due to a vacancy (which was due to be gazetted) that due to open.
7. The Applicant claims that she signed an assumption of duty and thus accrued all rights and responsibilities as an employee of the Respondent from the date reflected on the assumption of duty.
8. The Respondent opposed the Applicant’s submissions.
9. The Respondent argued that the employment only commenced on the date reflected on the Letter of Employment.
SURVEY OF EVIDENCE AND ARGUMENT
11. The Applicant prepared one (1) bundle of evidence; the parties then agreed to rely on the latter evidence as a common bundle.
12. The latter bundle was not disputed as such was admitted into evidence.
13. The Applicant (Ms Viljoen) was called to testify under oath and as a witness in support of her case. A summary of her testimony will be outlined herein below.
14. The Respondent called 1 witness (Mr Sauls) in support of its case. A summary of his testimony will be outlined herein below.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. Seeing that this is a dispute relating to an alleged unfair labour practice, the Applicant bears the onus of proof and thus same Applicant bears the duty to begin. I shall assess the evidence of the Applicant first then I shall consider the evidence of the Respondent.
16. The parties further elected to make oral arguments to substantiate their respective case. I shall address said arguments and the averments made during the arbitration herein under.
17. The Applicant was called as the only witness to her case.
18. The Applicant (Mrs Viljoen) placed the following testimony- she undertook to execute services at the school (St Theresa) in January 2020 when she was requested to assist owing to the retirement of an educator in same school.
19. Ms Viljoen testified that she only signed an assumption of duty in early March 2020 when same (Assumption of duty) was issued by the school’s principal. She testified that she was advised by the principal that a level 1 vacancy would be advertised.
20. Ms Viljoen testified that since the date of assuming her duties she was under the impression that she was working for the Respondent and thus considered the Department of Education as her employer. She testified that she taught during the months of March 2020, April and May 2020, she specified that even when the learners were learning from home (due to the Covid-19 lock down) all educators were expected to hand out booklets of worksheets and maintain records of outcomes in the distance learning. Her testimony was that she was one of the educators who did same. She also testified that as an educator she assisted in handing out food parcels prepared by the school.
21. Ms Viljoen testified that the Respondent was notified of her appointment and presence at St Theresa since February 2020. She also testified that during the months of February 2020 to May 2020 she received a stipend from the school which was due to be refunded by her after she received payment from the Respondent for the latter months.
22. Under cross-examination Ms Viljoen testified that she was paid by the SGB on February 2020 to May 2020 and she conceded that her employer was the SGB from February 2020 until the date of the assumption of duty. She conceded that the assumption of duty in March 2020 and only received the Offer of Appointment in April 2020 however she explained that there was an administrative disruption at the Department that caused the delay. Ms Viljoen maintained that the stipend was not a salary but a courteous amount that she was due to return (refund) to the SGB. Mrs Viljoen testified that she was advised by the principal that the Department of Education would only place her on payroll in June however she would be paid her April to May 2020 salary too. She also confirmed that she was others had undergone the recruitment process prior to the appointment.
23. My analysis of the of Ms Viljoen that she was a credible witness. When cross-examined Ms Viljoen stood firm on her version as such even when Ms Slabbert tried introducing alternative version, she stood by the averment that she was an employee of the Respondent from the date of the assumption of duty. Even when questioned about offering her services during the lockdown level 5 period, she stood firm that she considered herself the teacher of the designated class as such she executed tasks relating to the designated class.
24. The Respondent called one witness, being Mr Raymond Sauls. He attested as to how Ms Viljoen was appointed. He testified that Letter of Offer of occupation was only issued in April 2020 and not earlier. He testified that Ms Viljoen started in February 2020 however he had not made any commitment to a post as only the Department of Education can decisions relating to appointment.
25. The Respondent’s witnesses further attested that the ‘stipend’ is nonrefundable to the SGB as it is understood that appointed parties meet their living needs whilst being enrolled on the payroll system. He attended that the stipend only became a loan from the date of appointment.
26. In relation to charge and the offer of employment letter, he attested that Ms Viljoen received same on the 1st of April 2020 and confirmed that Ms Viljoen had executed services during April 2020 to June 2020. Mr Saul further attested that the request for an amendment of the assumption of duty that it was done only after he (Mr Sauls) had enquired about the payments due to Ms Viljoen. However he attested that in so far as the assumption of duty dated March 2020 that it was sent in on a request by the Respondent as such when he enquired about Ms Viljoen in June 2020, that is when he was requested to make an amendment to the assumption of duty.
27. The parties agreed to rely on a common evidence bundle which encompassed with it several documents. The admitting of said bundle documents into evidence was not objected to save for the singed assumption of duty dated March 2020.
28. My analysis of the Respondent’s witness is that he was honest. He maintained that there was no position promised to the Applicant. He further maintained how the stipend was non-refundable to recipients until such time same recipient is regarded a full-time employee of the Respondent. He was asked about the service of April and May 2020 to which even during cross-examination he maintained that Ms Viljoen had reimbursed the SGB for the stipend because she was an employee of the Respondent during April and May 2020.
29. As indicated above, the parties elected to submit oral arguments thereto I note the following:
29.1 The Applicant accepted the date of letter of appointment as the date of official appointment.
29.2 The Respondent’s witness maintained that the Applicant was an employee of Respondent during the months of April 2020 to May 2020.
29.3 Though the Respondent’s argument is that the Applicant only commenced service when schools adopted a hybrid attendance system in June 2020, its own witness contradicted that notion.
30. The matter at hand considered the notion of benefits and the provision of such benefits however more noteworthy in this matter is that one carries the obligation of proving when the of employment is in order to establish when said benefits accrue. To the latter we refer to Wyeth SA (Pty) Ltd v Manqele and Others (JA 50/03) [2005] ZALAC 1 (23 March 2005) wherein the court considered when one is considered an employee or not. The court in the latter case considered the application of the Parol Evidence Rule in an employment contract and ruled that when one meets the statutory criteria of what constitutes an employee then such is not disputable.
31. It is evident from the evidence that the Applicant that she was an employee of the Respondent from the date do the letter of appointment.
32. Now we turn to the question of an unfair labour practice and the provision of benefits in this matter.
33. In Apollo Tyres, the court defined benefits under section 186(2)(a) of the LRA as Benefits – What constitute – Benefits as contemplated by section 186(2)(a) of LRA including those to which employee is entitled ex contractu or ex lege, including rights judicially created, as well as advantage or privileges employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion.
34. More important in this matter was the issue of evidence to support the notion that the Applicant was indeed employed by the Respondent from the date of executing her services, herein we refer to the Employment of Educators Act, 76 of 1998 wherein the specific parties granted the permission to employ educators are enlisted in section 3 of the aforementioned Act to which a principal of a school is not included.
35. In cases of unfair labour practice onus of proof lies on the Applicant to prove that they had been subjected to such and to explain which specific one. The Respondent is responsible to established that the Applicant’s version is not probable and that there wasn’t such perpetrated against same Applicant.
36. In the premises I make the following award.
AWARD
37. The Applicant proven that she was an employee during the months of April to June 2020 and that on a balance of probabilities that she was employed and that she was entitled to said benefits.
38. The Applicant has further established that she has endured an unfair labour practice in the non-provision of said benefits.
39. I find in favour of the Applicant and she is entitled to the R 49 586.88 for the two months’ salary and housing allowance for the months of April to June 2020.
Yolisa Ndzuta
Panelist: ELRC