ELRC644-20/21 EC
Text
ELRC764-20/21EC
Award Date:
26 November 2021
Case Number: ELRC764-20/21EC
Commissioner: Henk Jacobs
Date of Award : 26 November 2021
In the matter between
BONGEKA MNGWEBA
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Union/Applicant’s representative:
Mr Du-Wayne Stoltz an attorney from Nolands Law
Telephone: 073 071 9813
Telefax:
E-mail: stoltz@nowlandslaw.co.za
Respondent’s representative: Mr S. Xhalisile
Respondent’s address: Department of Education- Eastern Cape
Telephone: 063 764 7990
Telefax:
E-mail: Sandiso.xhalasile@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair dismissal dispute for reasons unknown referred to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995, as amended (the LRA), was held virtually, on 06 October 2021 and 27 October 2021.
2 The applicant, Ms Bongeka Mngweba, was represented by Mr Du-Wayne Stoltz, an attorney from Nolands Law. The respondent, the Department of Education – Eastern Cape, was represented by Mr S Xhalisile, a Labour Relations officer employed by the Respondent.
3 The hearing was held in English and was digitally recorded.
4 It might be worth mentioning, the Applicant closed her case without testifying at the proceedings or to call any witnesses. Parties agree to file arguments based on the fact that the Applicant closed her case in an answering and replying to manner on the following dates. The Applicant to file arguments in the form of a stated case by no later than 03 November 2021, the Respondent to file a stated case in response by 10 November 2021 and the Respondent having an opportunity to reply by 15 November 2021.
5 Both parties did so, save, that no reply was filed.
Issue to be decided
6. The issue to be decided is whether the dismissal of the Applicant was procedurally and substantively fair, and if not, to determine the appropriate remedy in terms of sections 193 and 194 of the Labour Relations Act 66 of 1995.
Background to the matter
7. The Applicant referred a dispute to the ERLC on 03 March 2021 and filed an application for condonation for the late filing of the dispute at the same time. A ruling was issued condoning the late filing of the dispute and the Applicant was advised to file a request for the matter to be arbitrated.
8. The Applicant filed a request for the matter to be arbitrated and the matter was scheduled for hearing. An application for legal representation was filed and legal representation was granted.
9. Parties concluded a pre-arb minute on 20 October 2021 and filed same to the ELRC.
10. The Applicant sought to be reinstated following her dismissal and to be paid her salary from 01 September 2021.
11. The following facts are common cause: The Applicant was appointed as a permanent educator by the Respondent at KwaZakhele Hight School by way of letter dated 10 September 2020.
12. The date of appointment was 14 September 2020.
13. On 02 December 2020, the Respondent by way of letter, sought to reverse the appointment of the Applicant alleging that; “It however came to light that you were previously employed in a permanent capacity and resigned your permanent post with effect from 31 October 2015.”
14. The Respondent, by way of the letter informed that Applicant that she can only be employed as a substitute educator and was requested to acknowledge the change in conditions of employment to which the Applicant did not respond.
15. The Applicant resigned as an educator in 2015 having taken up further studies at NMU.
16. The Applicant was employed by the School Governing Body (SGB) of Cowan Hight School as a substitute educator whereafter she was permanently employed.
17. The Applicant submitted a bundle of documents which they will rely on during the proceedings. The documents were accepted to be what they purport to be.
Survey of evidence
18. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
Respondent’s evidence
19. Ms Moira Coetzee testified in short, that she is employed as a Senior Education Specialist by the Department of Education. She will receive an application from the principal of a particular school. She will go through the documents to confirm if the applicant qualifies for the specific post. If so, she will issue an offer letter to the applicant and in this instance, it was 10 September 2020 with effect from 14 September 2020.
20. Ms Coetzee further testify that paragraph 3 of the letter on page 40 states that failure to comply with the requirements will nullify this letter. The Applicant accepted the offer letter on 11 September 2020, and by doing so, she also accept that if any misrepresentation came to light, the offer will be nullified as per page 44 of the bundle.
21. Ms Coetzee also testified that upon receiving the acceptance offer and an assumption of duty, they will implement the appointment and process payment o “Persal”. On 06 November 2020, it came to light that the Applicant was previously employed and resigned on 12 October 2015, which change everting in terms of being appointed in a permanent capacity at the Department of Education.
22. She investigate the Applicant’s application further and discover that on her previous application she stated that he took early retirement as per page 26 of the bundle, in a later application as per page 22 of the bundle, she indicates that she took a voluntary severance package and on the Persal system, it shows she resigned.
23. Ms Coetzee testified that she immediately prepare a letter which was sent to the principal informing the Applicant that her status changed from being permanently employed to fixed term due to what came to light. The Applicant to date has not acknowledged the letter even after follow-ups with the principal and the letter is needed to process payment.
24. During 2021, there was another request from the principal to appoint the Applicant, no appointment letter was issued, and communication was sent to the principal that the Applicant was not paid for 2020 due to the absence of an acknowledgment letter.
25. Under cross-examination, Ms Coetzee confirmed that the Applicant disclosed her employment history as per page 25 of the bundle and on page 26 she explained her reason for leaving.
26. Ms Coetzee further stated that in order to appoint a previously appointed educator, she need permission form the HOD and need to follow policy. There were no Voluntary Severance Packages during 2015 and the Applicant misrepresented herself, although, the no approval of the Applicant’s permanent appointment due to her being a previously resigned educator, and not due to misrepresentation.
Applicant’s arguments
27. The Applicant submits that the decision to appoint the Applicant is an administrative action which is valid and binding until such time it is set aside by a component court.
28. It was also conceded that there was no impediment in the Employment of Educators Act 76 of 1998 for the Applicant to be appointed to the post.
29. The Applicant further submits that the Respondent by making an express representation, being the appointment letter, is accordingly estoppel from relying on the truth of such representation given that the Applicant acted on such representation, believing in the truth of such representation and was prejudiced by the Respondent seeking to rescind such appointment.
30. The Applicant submits that she was unfairly dismissed when the Respondent sought to reverse its decision to appoint her to a permanent post and that the Respondent conduct constitutes unfair administrative action.
Respondent’s arguments
31. The Respondent submits that the Applicant failed to mention in her application that she was previously employed by the Respondent and resigned to further her studies.
32. Paragraph 31 of the Applicants application declaration, she signed and conformed that all the information provided is true and correct, yet, at sub paragraph 29.3 she gave misleading information.
33. Paragraph 3 on page 39 to 40 of the bundle reads that “failure to heed any of the requirements stated in this letter and any misrepresentation will nullify this offer or maybe otherwise result in the delay of the payment of your salary”, and paragraph 4 reads; “should you fail to satisfy the requirements as stated in paragraph 2 and 3 above your appointment will be terminated with one month notice”.
34. The Respondent further submits that the Applicant had an opportunity to answer to the issues raised by the Respondent, yet she elects not to testify, and it would be in her interest to testify and cleared her name.
35. The Respondent further made reference to PAM with specific reference the clause B3.4.1.2 (c) which provides that other applicant who comply with the requirements be given an opportunity as well as young entrant to the profession over a person who already had an opportunity, on that basis and the fact that she misrepresent information in her application, the Respondent had to let her go.
Analysis
36. In accordance with section 192 (2) of the LRA, the employee bore the onus of proving that he had been dismissed. The onus then shifts to the employer to prove that such dismissal was nevertheless fair.
37. Section 188(1)(a) and (b) of the LRA states that a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason or that the dismissal was effected in accordance with a fair procedure.
38. The date of dismissal in terms of the referral was 31 December 2020 which corresponds with the letter issued to the Applicant that changed the employment status from permanent employment to a fixed term contract that expired on 31 December 2020.
39. The issue of changing the Applicants status from permanent status to a fixed term contract for a specific period leaves one to first determine, whether the termination was based on the expiry of a fixed term contract, thus, by operation of law, which does not constitute a dismissal in terms of the LRA, or, whether the change of status was an attempt to terminate the permanent employment of the Applicant.
40. In Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC), the Court held that the formal contract between the parties did not preclude the court from objectively determining the true nature of the relationship between the parties. As such the court was willing to look beyond the terms of the contract to determine the true relationship. The Court applied the “reality test” to determine what the reality of the relationship was.
41. In relation to Denel, the court had to look beyond the contract to determine whether the person was an employee or independent contractor. Different from the matter before me, however, the court authorise tribunals to look beyond the contract to determine the true nature of the relationship.
42. In this instance, the sole purpose of the fixed term contract was to terminate the Applicant’s permanent employment for the reason that she was previously employed by the Education Department and had resigned.
43. It is trite, that for a contract to valid and binding, there must be an offer and an acceptance of the offer, which was the case in this instance when the Applicant was employed on a permanent basis. However, this was absent when the Applicants status was changed to a fixed period and on that basis, the Applicants permanent status remained in place until it was terminated on 31 December 2021.
44. The reasons proffered by the Respondent for the termination was that the Applicants contract on 02 December 2021, was as follows:
“As per the offer letter dated 10 September 2020 you were offered a permanent post at Kwazakhele High school with effect from 14 September 2020.
On implementation of your appointment it however came to light that you were previously employed in a permanent capacity and resigned your permanent post with effect from 31 October 2015.
Please be informed that your nature of appointment will thus change to temporary and your appointment period will expire on 31 December 2020.
You are requested to sign the attached acknowledgment as proof that you have taken note of this change in your conditions of employment.”
45. It is common cause the Applicant never acknowledged the change in her conditions of employment. In its defence, the Respondent relied on the suspensive provisions of the offer letter and the provisions of the PAM to justify their decision to terminate.
46. The offer letter dated 10 September 2020 reads as follows:
“Dear ms. Mngweba
OFFER OF EMPLOYMENT AS AN EDUCATOR: YOURSELF
1. As a First-time applicant and on the assumption that you have successfully completed your academic studies, I take pleasure in informing you that approval has been obtained to issue this provisional offer of employment to you in terms of Section 7(2)(a) of the Employment of Educators Act, 1998 (as amended) according to the following particulars:
School (workstation) Kwazakheke High
District Nelson Mandela Bay
ID / Persal No 740725 0914 082
Rank Designation Educator (Post level 1)
Salary Range R 280 038 to R 621 906 per annum
Salary Notch R 280 038 per annum
Date of appointment 14 September 2020
Probationary Period 12 calendar months’ probation
2. Your employment is, however, subject to the following conditions.
2.1 That you have successfully completed your academic studies towards a Professional Education Qualification.
2.2 That you registered with the South African Council of Educators or have applied for such registration (proof of which must be submitted).
2.3 That your academic training (subjects at least at second year level) as substantiated by your academic record / transcript, matches the profile of the post in respect for which you have been earmarked.
2.4 That your academic training matches the education phase of the post for which you have been earmarked.
3. In addition, you are also compelled to submit the documents specified in the checklist contained in the Letter of Acceptance, should you accept the offer, to the Principal of the school who will then, with a certificate of assumption of duty, forward it to the Head: Human Resources Administration at the relevant District Office. Please note that all certified copies must be originally certified, 1.e. a copy of a certified copy will not be accepted. Failure to heed to any of the requirements stated in this letter and any misrepresentation will nullify this offer or may otherwise result in the delay of the payment of your first salary.
4. Should you fail to satisfy the requirements as stated in paragraph 2 and 3 above, your appointment will be terminated with one month’s notice.
5. On receipt of this letter, you are also required to complete the attached Acceptance of offer Form and submit a copy thereof for the attention of the Deputy Director: HRA & Pat the District Office, the original must be handed to your Principal.
6. If you accept this offer, this letter automatically also serves as your letter of Appointment.
7. Your conditions of service will be directed by the Employment of Educators Act, 1998, the Personnel Administrative Measures (PAM) and applicable Collective Agreements. You are advised to familiarise yourself with the contents thereof.”
47. The suspensive conditions are stipulated in paragraphs 2 and 3 of the offer letter. The only issue raised by the Respondent was that the Applicant was previously employed by the Department of Education and resigned. Paragraphs 2 and 3 of the offer letter did not list being previously employed was a suspensive condition, save that the letter made reference to a “First-time applicant” which the Applicant was not. I will deal with this later in the award.
48. The Respondent in arguments made reference to misrepresentation, however, that was not the reason for termination at the time her contract was terminated. In Fidelity Cash Management Services v CCMA & Others [2008] 3 BLLR 197 (LAC) it was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. The employer will not be entitled to introduce new or different reasons at arbitration.
49. It is trite, and as stated in the offer letter, the terms and conditions of employment is regulated through the Employment of Educators Act 76 of 1998 (the Educators Act) and the PAM.
50. The Educators Act in Section 6A states that;
“First appointment or appointment after break in service of educator.—
(1) Despite section 6 (3) (a), in the case of a first appointment or an appointment after one or more years’ break in service to any provincial Department of Basic Education, the employer may—
(a) receive applications from first-time applicants or applicants returning after a break in service; (b) process the applications and match applications to vacant posts; and
(c) make appointments to a school subject to subsection (2).
(2) The appointment contemplated in subsection (1) may only be made after the employer has— (a) consulted the relevant governing body on the specific post and the requirements thereof;
(b) ensured that the applicant to be appointed matches the requirements of the post; and
(c) ensured that the applicant has prescribed qualifications.”
51. It was not disputed that the Applicant did comply with all other requirements for the post, hence her appointment. There is also no prohibition in terms of the Educators Act that prevent previously employed Educators to be re-employed after a break in service. Instead, the Educators Act makes specific reference to Educators who took a break in service and apply the same employment conditions to them, as for first-time applicants.
52. Now turning to the PAM as amended 2016, in Chapter B, Regulation 3, that deals with the appointment and re-appointment of educators.
53. Regulation 3 defined appointment in terms of regulation 3.1.6 to include the re-appointment, after a break in service, of an educator by a department of education.
54. Regulation 3 further defined the processes and regulations for the specific categories of re-employment as follows:
“Re-appointment of educators
B.3.4.1 Educators who have retired or have retired prematurely
B.3.4.1.1 Subject to the general policy prescriptions applicable to the appointment of educators, every re-appointment of an educator who has retired or has been retired on pension before reaching his/her retirement age must be approved by the HoD or by the person to whom he/she has delegated such authority. Re-appointment means any form of reemployment in a full-time or part-time capacity of an educator who has retired or has been retired on pension prematurely in terms of any of the approved measures.
B.3.4.1.2 The principles referred to below must be taken into account in considering such reappointments. The HoD or the person to whom he/she has delegated the responsibility, will decide on the re-appointment concerned after he/she has considered the following principles and the extent to which they have been complied with:
(a) Whether the re-appointment of persons who have, at their own request, retired prematurely on reduced pension benefits, may be deemed to be in the interest of the State
(b) The only consideration must be the interests of education, which includes the interests of the department of education, the learner, the school and the State.
(c) Other applicants who comply with the prescribed requirements for appointment, and young entrants to the profession in particular, must be given preference over persons who have already had the opportunity of an extensive career in education.
B.3.4.2 Educators whose services have been terminated due to rationalisation/re organisation prior to 31 May 1996
B.3.4.2.1 Subject to the general policy prescriptions applicable to the appointment of educators, every re-appointment of an educator whose service has been terminated due to rationalisation/re-organisation must be approved by the HoD or by the person to whom he/she has delegated such authority. Re-appointment means any form of re-employment in a full-time or part-time capacity of an educator whose services have been terminated due to rationalisation/re-organisation. B.3.4.2.2 In considering a person whose services have been terminated due to rationalisation/re organisation and who has not been given the option of appointment to another suitable post, the termination of his/her services will not prejudice him/her being considered for re-appointment.
B.3.4.2.3 In the absence of sound reasons, the re-appointment of persons whose services have been terminated owing to rationalisation/re-organisation and who have been given the opportunity of being transferred to another suitable post, but who have nevertheless exercised the choice of retiring on pension prematurely, will be deemed not to be in the interest of the State. Note: “Suitable post” in this regard means a post of a grading at least equal to the one from which the educator concerned has been retired and which, given all the relevant circumstances of the person concerned, is such that he/she may reasonably be expected to accept appointment to such position.
B.3.4.3 Educators who have retired on grounds of permanent incapacity
B.3.4.3.1 The application for re-appointment of persons who have retired on pension prematurely on grounds of permanent incapacity and whose state of health has improved to such an extent that the prescribed health requirements are met, will be considered, bearing in mind the principles in paragraph B.3.4.1.1 and B.3.4.1.2. B.3.4.4 Educators who have taken a Voluntary Severance Package (VSP) (Government Gazette No 17226, dated 31 May 1996), or an Employee Initiated Severance Package (EISP) (Government Gazette No 29056, dated 21 July 2006) or a Mutually Agreed to Severance Package (MASP) (PSCBC Resolution 12 of 2000).”
55. The PAM does not provide any regulation preventing the re-employment of a previously resigned educator, save for the categories as discussed hereinabove. The Applicant, in terms of the reason for termination, does not fall within any of the above categories of previously employed educators, and even if she did, the re-appointment of such educator is not prohibited, but regulated to certain conditions that should prevail before such appointment is made.
56. The Applicant made reference to the principal of Estoppel in argument, there is no place for the principal of Estoppel in a fairness dispute and I do not intent dealing with this any further. The issue of misrepresentation was not the reason for termination, but for the sake of completeness, I will briefly deal with it. The offer clearly states that any misrepresentation will nullify the offer, which in terms mean that no employment relationship came into being. Instead, the Respondent on its won accord change the terms and condition to that of a fixed term contract instead of nullifying the offer. On that basis, the argument of misrepresentation is dismissed.
57. Turning to the dismissal of the Applicant, in terms of procedural fairness, Item 4 of Schedule 8 of the LRA provides guidance on the procedural requirements prior dismissal and reads as follows:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. 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 state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of 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 reason for the 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.”
58. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (JR 782/05) [2006] ZALC 44; (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) (handed down on 14 March 2006) it was held that the Employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the Employee notice thereof.
59. In this instance, the Respondent did not comply with the minimum requirements in terms of procedural fairness.
60. Turning to substantive fairness, Item 7 of Schedule 8 of the Code of Good Practice states that any person who is determining whether a dismissal for misconduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and if a rule or standard was contravened, whether or not the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and dismissal was an appropriate sanction for the contravention of the rule or standard.
61. The only reason provided for the Applicants dismissal was that she was previously employed by the Department. The issue of misrepresentation was not provided as the reason for dismissal, it therefore cannot be argued later that the Applicant misrepresented herself.
62. In National Home Builders Registration Council v CCMA & Others (JR 2026/13) [2016] ZALCJHB 209 (handed down on 10 June 2016) the Court held that Commissioners cannot make a determination on an issue that is not before him for determination and was not the subject matter of the dispute. Neither can they argue points on behalf of the parties, which the parties themselves had not relied on or raised in their evidence. Commissioners must act within the confines of the facts and evidence before them.
63. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC) held that in assessing if dismissal for misconduct was fair, one must look at the nature of the misconduct any harm caused by the misconduct and its impact on the business. Factors relevant to the individual worker include the impact of dismissal on the employee, his service record and whether additional training or instruction would result in the employee not repeating the misconduct
64. In this instance, the Applicant was not dismissed for any alleged misconduct, but merely because she was previously employed by the Department. On that basis, of considering all the requirements for a fair dismissal, I find that the Applicants dismissal was procedurally and substantively unfair.
65. Now turning to relief, The Applicant sought to be reinstated. Section 193(2) of the LRA states that the arbitrator must require the employer to reinstate or re-employ the employee unless the employee does not wish to be reinstated or re-employed.
66. The Applicant was appointed on a basic salary of R280 038.00 per annum divided by 12 months = R23 336.50 per month. The Applicant was not paid her basic salary for the period she worked. The Applicant commenced employment on 14 September 2020 and was dismissed on 31 December 2020. The Applicants dismissal was both procedurally and substantively unfair, I can find no reason not to reinstate the Applicant retrospectively.
67. The Applicant was not paid for her period of employment her basis salary from 14 September 2020 to 31 December 2020. The Applicant earned a basis salary of R23 335.59 per month divided by 4.3333 weeks per months = R5 385.76 per week divided by 5 days per week = R1 077.15 per day.
68. In light of the above, I find it appropriate to make the following award.
Award
69. The dismissal of the applicant, Ms B Mngweba, by the respondent, the Education Department Eastern Cape, was procedurally and substantively unfair.
70. The Respondent is ordered to reinstate the Applicant on the same terms and conditions as her permanent employment dated 14 September 2020, with retrospective effect to the date of dismissal, 31 December 2020. The Applicant must report for duty at 8:00 on 06 December 2021.
71. The Respondent is further ordered to pay the Applicant her outstanding salary for the period she worked from 14 September 2020 to 31 December 2020 to the amount of R84 012.47 (eighty four thousand and twelve rand and forty seven cent) by no later than 10 December 2021.
72. The Respondent is ordered to pay the Applicant R 256 701.50 (two hundred and fifty six thousand seven hundred and one rand and fifty cent) in respect of back pay by no later than 15 December 202, failing which the said sum shall bear interest from date of this award to date of payment at the rate of interest applicable from time to time to judgement debts.
Signature:
Commissioner: Henk Jacobs
Commissioner: Henk Jacobs
Date of Award : 26 November 2021
In the matter between
BONGEKA MNGWEBA
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Union/Applicant’s representative:
Mr Du-Wayne Stoltz an attorney from Nolands Law
Telephone: 073 071 9813
Telefax:
E-mail: stoltz@nowlandslaw.co.za
Respondent’s representative: Mr S. Xhalisile
Respondent’s address: Department of Education- Eastern Cape
Telephone: 063 764 7990
Telefax:
E-mail: Sandiso.xhalasile@ecdoe.gov.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair dismissal dispute for reasons unknown referred to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iii) of the Labour Relations Act 66 of 1995, as amended (the LRA), was held virtually, on 06 October 2021 and 27 October 2021.
2 The applicant, Ms Bongeka Mngweba, was represented by Mr Du-Wayne Stoltz, an attorney from Nolands Law. The respondent, the Department of Education – Eastern Cape, was represented by Mr S Xhalisile, a Labour Relations officer employed by the Respondent.
3 The hearing was held in English and was digitally recorded.
4 It might be worth mentioning, the Applicant closed her case without testifying at the proceedings or to call any witnesses. Parties agree to file arguments based on the fact that the Applicant closed her case in an answering and replying to manner on the following dates. The Applicant to file arguments in the form of a stated case by no later than 03 November 2021, the Respondent to file a stated case in response by 10 November 2021 and the Respondent having an opportunity to reply by 15 November 2021.
5 Both parties did so, save, that no reply was filed.
Issue to be decided
6. The issue to be decided is whether the dismissal of the Applicant was procedurally and substantively fair, and if not, to determine the appropriate remedy in terms of sections 193 and 194 of the Labour Relations Act 66 of 1995.
Background to the matter
7. The Applicant referred a dispute to the ERLC on 03 March 2021 and filed an application for condonation for the late filing of the dispute at the same time. A ruling was issued condoning the late filing of the dispute and the Applicant was advised to file a request for the matter to be arbitrated.
8. The Applicant filed a request for the matter to be arbitrated and the matter was scheduled for hearing. An application for legal representation was filed and legal representation was granted.
9. Parties concluded a pre-arb minute on 20 October 2021 and filed same to the ELRC.
10. The Applicant sought to be reinstated following her dismissal and to be paid her salary from 01 September 2021.
11. The following facts are common cause: The Applicant was appointed as a permanent educator by the Respondent at KwaZakhele Hight School by way of letter dated 10 September 2020.
12. The date of appointment was 14 September 2020.
13. On 02 December 2020, the Respondent by way of letter, sought to reverse the appointment of the Applicant alleging that; “It however came to light that you were previously employed in a permanent capacity and resigned your permanent post with effect from 31 October 2015.”
14. The Respondent, by way of the letter informed that Applicant that she can only be employed as a substitute educator and was requested to acknowledge the change in conditions of employment to which the Applicant did not respond.
15. The Applicant resigned as an educator in 2015 having taken up further studies at NMU.
16. The Applicant was employed by the School Governing Body (SGB) of Cowan Hight School as a substitute educator whereafter she was permanently employed.
17. The Applicant submitted a bundle of documents which they will rely on during the proceedings. The documents were accepted to be what they purport to be.
Survey of evidence
18. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
Respondent’s evidence
19. Ms Moira Coetzee testified in short, that she is employed as a Senior Education Specialist by the Department of Education. She will receive an application from the principal of a particular school. She will go through the documents to confirm if the applicant qualifies for the specific post. If so, she will issue an offer letter to the applicant and in this instance, it was 10 September 2020 with effect from 14 September 2020.
20. Ms Coetzee further testify that paragraph 3 of the letter on page 40 states that failure to comply with the requirements will nullify this letter. The Applicant accepted the offer letter on 11 September 2020, and by doing so, she also accept that if any misrepresentation came to light, the offer will be nullified as per page 44 of the bundle.
21. Ms Coetzee also testified that upon receiving the acceptance offer and an assumption of duty, they will implement the appointment and process payment o “Persal”. On 06 November 2020, it came to light that the Applicant was previously employed and resigned on 12 October 2015, which change everting in terms of being appointed in a permanent capacity at the Department of Education.
22. She investigate the Applicant’s application further and discover that on her previous application she stated that he took early retirement as per page 26 of the bundle, in a later application as per page 22 of the bundle, she indicates that she took a voluntary severance package and on the Persal system, it shows she resigned.
23. Ms Coetzee testified that she immediately prepare a letter which was sent to the principal informing the Applicant that her status changed from being permanently employed to fixed term due to what came to light. The Applicant to date has not acknowledged the letter even after follow-ups with the principal and the letter is needed to process payment.
24. During 2021, there was another request from the principal to appoint the Applicant, no appointment letter was issued, and communication was sent to the principal that the Applicant was not paid for 2020 due to the absence of an acknowledgment letter.
25. Under cross-examination, Ms Coetzee confirmed that the Applicant disclosed her employment history as per page 25 of the bundle and on page 26 she explained her reason for leaving.
26. Ms Coetzee further stated that in order to appoint a previously appointed educator, she need permission form the HOD and need to follow policy. There were no Voluntary Severance Packages during 2015 and the Applicant misrepresented herself, although, the no approval of the Applicant’s permanent appointment due to her being a previously resigned educator, and not due to misrepresentation.
Applicant’s arguments
27. The Applicant submits that the decision to appoint the Applicant is an administrative action which is valid and binding until such time it is set aside by a component court.
28. It was also conceded that there was no impediment in the Employment of Educators Act 76 of 1998 for the Applicant to be appointed to the post.
29. The Applicant further submits that the Respondent by making an express representation, being the appointment letter, is accordingly estoppel from relying on the truth of such representation given that the Applicant acted on such representation, believing in the truth of such representation and was prejudiced by the Respondent seeking to rescind such appointment.
30. The Applicant submits that she was unfairly dismissed when the Respondent sought to reverse its decision to appoint her to a permanent post and that the Respondent conduct constitutes unfair administrative action.
Respondent’s arguments
31. The Respondent submits that the Applicant failed to mention in her application that she was previously employed by the Respondent and resigned to further her studies.
32. Paragraph 31 of the Applicants application declaration, she signed and conformed that all the information provided is true and correct, yet, at sub paragraph 29.3 she gave misleading information.
33. Paragraph 3 on page 39 to 40 of the bundle reads that “failure to heed any of the requirements stated in this letter and any misrepresentation will nullify this offer or maybe otherwise result in the delay of the payment of your salary”, and paragraph 4 reads; “should you fail to satisfy the requirements as stated in paragraph 2 and 3 above your appointment will be terminated with one month notice”.
34. The Respondent further submits that the Applicant had an opportunity to answer to the issues raised by the Respondent, yet she elects not to testify, and it would be in her interest to testify and cleared her name.
35. The Respondent further made reference to PAM with specific reference the clause B3.4.1.2 (c) which provides that other applicant who comply with the requirements be given an opportunity as well as young entrant to the profession over a person who already had an opportunity, on that basis and the fact that she misrepresent information in her application, the Respondent had to let her go.
Analysis
36. In accordance with section 192 (2) of the LRA, the employee bore the onus of proving that he had been dismissed. The onus then shifts to the employer to prove that such dismissal was nevertheless fair.
37. Section 188(1)(a) and (b) of the LRA states that a dismissal is unfair if the employer fails to prove that the reason for dismissal is a fair reason or that the dismissal was effected in accordance with a fair procedure.
38. The date of dismissal in terms of the referral was 31 December 2020 which corresponds with the letter issued to the Applicant that changed the employment status from permanent employment to a fixed term contract that expired on 31 December 2020.
39. The issue of changing the Applicants status from permanent status to a fixed term contract for a specific period leaves one to first determine, whether the termination was based on the expiry of a fixed term contract, thus, by operation of law, which does not constitute a dismissal in terms of the LRA, or, whether the change of status was an attempt to terminate the permanent employment of the Applicant.
40. In Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC), the Court held that the formal contract between the parties did not preclude the court from objectively determining the true nature of the relationship between the parties. As such the court was willing to look beyond the terms of the contract to determine the true relationship. The Court applied the “reality test” to determine what the reality of the relationship was.
41. In relation to Denel, the court had to look beyond the contract to determine whether the person was an employee or independent contractor. Different from the matter before me, however, the court authorise tribunals to look beyond the contract to determine the true nature of the relationship.
42. In this instance, the sole purpose of the fixed term contract was to terminate the Applicant’s permanent employment for the reason that she was previously employed by the Education Department and had resigned.
43. It is trite, that for a contract to valid and binding, there must be an offer and an acceptance of the offer, which was the case in this instance when the Applicant was employed on a permanent basis. However, this was absent when the Applicants status was changed to a fixed period and on that basis, the Applicants permanent status remained in place until it was terminated on 31 December 2021.
44. The reasons proffered by the Respondent for the termination was that the Applicants contract on 02 December 2021, was as follows:
“As per the offer letter dated 10 September 2020 you were offered a permanent post at Kwazakhele High school with effect from 14 September 2020.
On implementation of your appointment it however came to light that you were previously employed in a permanent capacity and resigned your permanent post with effect from 31 October 2015.
Please be informed that your nature of appointment will thus change to temporary and your appointment period will expire on 31 December 2020.
You are requested to sign the attached acknowledgment as proof that you have taken note of this change in your conditions of employment.”
45. It is common cause the Applicant never acknowledged the change in her conditions of employment. In its defence, the Respondent relied on the suspensive provisions of the offer letter and the provisions of the PAM to justify their decision to terminate.
46. The offer letter dated 10 September 2020 reads as follows:
“Dear ms. Mngweba
OFFER OF EMPLOYMENT AS AN EDUCATOR: YOURSELF
1. As a First-time applicant and on the assumption that you have successfully completed your academic studies, I take pleasure in informing you that approval has been obtained to issue this provisional offer of employment to you in terms of Section 7(2)(a) of the Employment of Educators Act, 1998 (as amended) according to the following particulars:
School (workstation) Kwazakheke High
District Nelson Mandela Bay
ID / Persal No 740725 0914 082
Rank Designation Educator (Post level 1)
Salary Range R 280 038 to R 621 906 per annum
Salary Notch R 280 038 per annum
Date of appointment 14 September 2020
Probationary Period 12 calendar months’ probation
2. Your employment is, however, subject to the following conditions.
2.1 That you have successfully completed your academic studies towards a Professional Education Qualification.
2.2 That you registered with the South African Council of Educators or have applied for such registration (proof of which must be submitted).
2.3 That your academic training (subjects at least at second year level) as substantiated by your academic record / transcript, matches the profile of the post in respect for which you have been earmarked.
2.4 That your academic training matches the education phase of the post for which you have been earmarked.
3. In addition, you are also compelled to submit the documents specified in the checklist contained in the Letter of Acceptance, should you accept the offer, to the Principal of the school who will then, with a certificate of assumption of duty, forward it to the Head: Human Resources Administration at the relevant District Office. Please note that all certified copies must be originally certified, 1.e. a copy of a certified copy will not be accepted. Failure to heed to any of the requirements stated in this letter and any misrepresentation will nullify this offer or may otherwise result in the delay of the payment of your first salary.
4. Should you fail to satisfy the requirements as stated in paragraph 2 and 3 above, your appointment will be terminated with one month’s notice.
5. On receipt of this letter, you are also required to complete the attached Acceptance of offer Form and submit a copy thereof for the attention of the Deputy Director: HRA & Pat the District Office, the original must be handed to your Principal.
6. If you accept this offer, this letter automatically also serves as your letter of Appointment.
7. Your conditions of service will be directed by the Employment of Educators Act, 1998, the Personnel Administrative Measures (PAM) and applicable Collective Agreements. You are advised to familiarise yourself with the contents thereof.”
47. The suspensive conditions are stipulated in paragraphs 2 and 3 of the offer letter. The only issue raised by the Respondent was that the Applicant was previously employed by the Department of Education and resigned. Paragraphs 2 and 3 of the offer letter did not list being previously employed was a suspensive condition, save that the letter made reference to a “First-time applicant” which the Applicant was not. I will deal with this later in the award.
48. The Respondent in arguments made reference to misrepresentation, however, that was not the reason for termination at the time her contract was terminated. In Fidelity Cash Management Services v CCMA & Others [2008] 3 BLLR 197 (LAC) it was held that fairness is determined mostly on the basis of the reason for the dismissal which the employer had given at the time of the dismissal. The employer will not be entitled to introduce new or different reasons at arbitration.
49. It is trite, and as stated in the offer letter, the terms and conditions of employment is regulated through the Employment of Educators Act 76 of 1998 (the Educators Act) and the PAM.
50. The Educators Act in Section 6A states that;
“First appointment or appointment after break in service of educator.—
(1) Despite section 6 (3) (a), in the case of a first appointment or an appointment after one or more years’ break in service to any provincial Department of Basic Education, the employer may—
(a) receive applications from first-time applicants or applicants returning after a break in service; (b) process the applications and match applications to vacant posts; and
(c) make appointments to a school subject to subsection (2).
(2) The appointment contemplated in subsection (1) may only be made after the employer has— (a) consulted the relevant governing body on the specific post and the requirements thereof;
(b) ensured that the applicant to be appointed matches the requirements of the post; and
(c) ensured that the applicant has prescribed qualifications.”
51. It was not disputed that the Applicant did comply with all other requirements for the post, hence her appointment. There is also no prohibition in terms of the Educators Act that prevent previously employed Educators to be re-employed after a break in service. Instead, the Educators Act makes specific reference to Educators who took a break in service and apply the same employment conditions to them, as for first-time applicants.
52. Now turning to the PAM as amended 2016, in Chapter B, Regulation 3, that deals with the appointment and re-appointment of educators.
53. Regulation 3 defined appointment in terms of regulation 3.1.6 to include the re-appointment, after a break in service, of an educator by a department of education.
54. Regulation 3 further defined the processes and regulations for the specific categories of re-employment as follows:
“Re-appointment of educators
B.3.4.1 Educators who have retired or have retired prematurely
B.3.4.1.1 Subject to the general policy prescriptions applicable to the appointment of educators, every re-appointment of an educator who has retired or has been retired on pension before reaching his/her retirement age must be approved by the HoD or by the person to whom he/she has delegated such authority. Re-appointment means any form of reemployment in a full-time or part-time capacity of an educator who has retired or has been retired on pension prematurely in terms of any of the approved measures.
B.3.4.1.2 The principles referred to below must be taken into account in considering such reappointments. The HoD or the person to whom he/she has delegated the responsibility, will decide on the re-appointment concerned after he/she has considered the following principles and the extent to which they have been complied with:
(a) Whether the re-appointment of persons who have, at their own request, retired prematurely on reduced pension benefits, may be deemed to be in the interest of the State
(b) The only consideration must be the interests of education, which includes the interests of the department of education, the learner, the school and the State.
(c) Other applicants who comply with the prescribed requirements for appointment, and young entrants to the profession in particular, must be given preference over persons who have already had the opportunity of an extensive career in education.
B.3.4.2 Educators whose services have been terminated due to rationalisation/re organisation prior to 31 May 1996
B.3.4.2.1 Subject to the general policy prescriptions applicable to the appointment of educators, every re-appointment of an educator whose service has been terminated due to rationalisation/re-organisation must be approved by the HoD or by the person to whom he/she has delegated such authority. Re-appointment means any form of re-employment in a full-time or part-time capacity of an educator whose services have been terminated due to rationalisation/re-organisation. B.3.4.2.2 In considering a person whose services have been terminated due to rationalisation/re organisation and who has not been given the option of appointment to another suitable post, the termination of his/her services will not prejudice him/her being considered for re-appointment.
B.3.4.2.3 In the absence of sound reasons, the re-appointment of persons whose services have been terminated owing to rationalisation/re-organisation and who have been given the opportunity of being transferred to another suitable post, but who have nevertheless exercised the choice of retiring on pension prematurely, will be deemed not to be in the interest of the State. Note: “Suitable post” in this regard means a post of a grading at least equal to the one from which the educator concerned has been retired and which, given all the relevant circumstances of the person concerned, is such that he/she may reasonably be expected to accept appointment to such position.
B.3.4.3 Educators who have retired on grounds of permanent incapacity
B.3.4.3.1 The application for re-appointment of persons who have retired on pension prematurely on grounds of permanent incapacity and whose state of health has improved to such an extent that the prescribed health requirements are met, will be considered, bearing in mind the principles in paragraph B.3.4.1.1 and B.3.4.1.2. B.3.4.4 Educators who have taken a Voluntary Severance Package (VSP) (Government Gazette No 17226, dated 31 May 1996), or an Employee Initiated Severance Package (EISP) (Government Gazette No 29056, dated 21 July 2006) or a Mutually Agreed to Severance Package (MASP) (PSCBC Resolution 12 of 2000).”
55. The PAM does not provide any regulation preventing the re-employment of a previously resigned educator, save for the categories as discussed hereinabove. The Applicant, in terms of the reason for termination, does not fall within any of the above categories of previously employed educators, and even if she did, the re-appointment of such educator is not prohibited, but regulated to certain conditions that should prevail before such appointment is made.
56. The Applicant made reference to the principal of Estoppel in argument, there is no place for the principal of Estoppel in a fairness dispute and I do not intent dealing with this any further. The issue of misrepresentation was not the reason for termination, but for the sake of completeness, I will briefly deal with it. The offer clearly states that any misrepresentation will nullify the offer, which in terms mean that no employment relationship came into being. Instead, the Respondent on its won accord change the terms and condition to that of a fixed term contract instead of nullifying the offer. On that basis, the argument of misrepresentation is dismissed.
57. Turning to the dismissal of the Applicant, in terms of procedural fairness, Item 4 of Schedule 8 of the LRA provides guidance on the procedural requirements prior dismissal and reads as follows:
“Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. 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 state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of 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 reason for the 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.”
58. In Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (JR 782/05) [2006] ZALC 44; (2006) 27 ILJ 1644 (LC); [2006] 9 BLLR 833 (LC) (handed down on 14 March 2006) it was held that the Employer was merely required to conduct an investigation, give the employee or his representative an opportunity to respond to allegations after a reasonable period and thereafter to take a decision and give the Employee notice thereof.
59. In this instance, the Respondent did not comply with the minimum requirements in terms of procedural fairness.
60. Turning to substantive fairness, Item 7 of Schedule 8 of the Code of Good Practice states that any person who is determining whether a dismissal for misconduct is unfair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and if a rule or standard was contravened, whether or not the rule was a valid or reasonable rule or standard; the employee was aware, or could reasonably be expected to have been aware, of the rule or standard; the rule or standard has been consistently applied by the employer; and dismissal was an appropriate sanction for the contravention of the rule or standard.
61. The only reason provided for the Applicants dismissal was that she was previously employed by the Department. The issue of misrepresentation was not provided as the reason for dismissal, it therefore cannot be argued later that the Applicant misrepresented herself.
62. In National Home Builders Registration Council v CCMA & Others (JR 2026/13) [2016] ZALCJHB 209 (handed down on 10 June 2016) the Court held that Commissioners cannot make a determination on an issue that is not before him for determination and was not the subject matter of the dispute. Neither can they argue points on behalf of the parties, which the parties themselves had not relied on or raised in their evidence. Commissioners must act within the confines of the facts and evidence before them.
63. The Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC) held that in assessing if dismissal for misconduct was fair, one must look at the nature of the misconduct any harm caused by the misconduct and its impact on the business. Factors relevant to the individual worker include the impact of dismissal on the employee, his service record and whether additional training or instruction would result in the employee not repeating the misconduct
64. In this instance, the Applicant was not dismissed for any alleged misconduct, but merely because she was previously employed by the Department. On that basis, of considering all the requirements for a fair dismissal, I find that the Applicants dismissal was procedurally and substantively unfair.
65. Now turning to relief, The Applicant sought to be reinstated. Section 193(2) of the LRA states that the arbitrator must require the employer to reinstate or re-employ the employee unless the employee does not wish to be reinstated or re-employed.
66. The Applicant was appointed on a basic salary of R280 038.00 per annum divided by 12 months = R23 336.50 per month. The Applicant was not paid her basic salary for the period she worked. The Applicant commenced employment on 14 September 2020 and was dismissed on 31 December 2020. The Applicants dismissal was both procedurally and substantively unfair, I can find no reason not to reinstate the Applicant retrospectively.
67. The Applicant was not paid for her period of employment her basis salary from 14 September 2020 to 31 December 2020. The Applicant earned a basis salary of R23 335.59 per month divided by 4.3333 weeks per months = R5 385.76 per week divided by 5 days per week = R1 077.15 per day.
68. In light of the above, I find it appropriate to make the following award.
Award
69. The dismissal of the applicant, Ms B Mngweba, by the respondent, the Education Department Eastern Cape, was procedurally and substantively unfair.
70. The Respondent is ordered to reinstate the Applicant on the same terms and conditions as her permanent employment dated 14 September 2020, with retrospective effect to the date of dismissal, 31 December 2020. The Applicant must report for duty at 8:00 on 06 December 2021.
71. The Respondent is further ordered to pay the Applicant her outstanding salary for the period she worked from 14 September 2020 to 31 December 2020 to the amount of R84 012.47 (eighty four thousand and twelve rand and forty seven cent) by no later than 10 December 2021.
72. The Respondent is ordered to pay the Applicant R 256 701.50 (two hundred and fifty six thousand seven hundred and one rand and fifty cent) in respect of back pay by no later than 15 December 202, failing which the said sum shall bear interest from date of this award to date of payment at the rate of interest applicable from time to time to judgement debts.
Signature:
Commissioner: Henk Jacobs