ELRC644-20/21 EC
Text
ELRC316-20/21EC
Award Date:
25 November 2021
Case Number: ELRC316-20/21EC
In the matter between
Gideon Jacobus Johannes Wagenaar Applicant
and
Provincial Department of Education, Eastern Cape Respondent
Appearances: For the applicant: Ms Venita van Wyk (SAOU official);
For respondent: Ms Nokuthula Sikithi (SGB Chairperson)
Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 24 August 2021; 04 November 2021
Delivered: 25 November 2021
Summary: Labour Relations Act 66 of 1995, as amended, section 186(1)(a)-
Alleged unfair dismissal by terminating employment contract without a notice
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was held virtually on 24 August 2021 and 04 November 2021. Mr Gideon Jacobus Johannes Waggenar (applicant) was in attendance in both session and was represented by a SAOU official, Ms Venitta van Wyk. The Provincial Department of Education, Eastern Cape (respondent) was represented by its labour relations manager, Ms Nokuthula Sikithi.
2. The dispute is about unfair dismissal which is alleged to have happened when the respondent terminated the applicant’s employment contract without a notice, in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The respondent is denying that the applicant was dismissed and is saying he never became its employee.
3. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 11 November 2021. Both parties submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
4. I am required to determine whether the applicant was dismissed by the respondent, and if indeed he was dismissed whether the dismissal was procedurally and substantively fair. The applicant is also seeking to have his owed salary consolidated to this dispute, in terms of section 74(2) of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA), and paid to him. Should I find that there was dismissal and it was unfair I will order an appropriate relief.
BACKGROUND TO THE ISSUE
5. The applicant says he started to work for the respondent on 01 April 2020 (when he got the assumption of duty to commence his teaching duties at Barkley East Primary School). Then on 01 June 2020 he was given the second assumption of duty letter, whilst he had already been rendering duties at Barkley East Primary School. He got dismissed on 24 September 2020 when the respondent terminated his employment without notice. At the time of termination of employment he was earning a gross monthly salary of R23 336.50 plus R8 634.51, which is 37% in lieu of benefit. In total she earned R31 971.01 per month.
6. The respondent, on the other hand, is disputing that the applicant got to its employ in the first place. Inasmuch as he had been recruited to be a teacher at Barkley East Primary School he could not be captured as an employee on persal because he had been previously employed with another government department, SAPS, and had been dismissed for unauthorised absence. He also did not disclose when he was recruited that he had left a government through dismissal. The respondent is therefore disputing that the applicant was dismissed.
7. He is challenging the substantive fairness of his dismissal. He is also seeking to be paid owed salary for period ranging from 01 April 2020 to end September 2020, which is five months + twenty four days, amounting to (R31 971.01 x 5 months + R1 048.23 x 24 days) R185 501.57 which has not been paid to him from the time he commenced employment and duties with the respondent up to the time his employment was terminated.
SURVEY OF THE EVIDENCE AND ARGUMENTS
8. It is common cause that the respondent had in January 2020 advertised a teaching post for Barkley East Primary School. The applicant was called to the interview and the respondent’s District Office was made aware that he was a successful candidate. The post is categorized as permanent, but an appointed incumbent is to undergo twelve months’ probation period before being confirmed permanent. This is confirmed in the offer letter the applicant had received and signed. What is in dispute is whether the assumption of duty letter worth considering was the 1st April or 1st June 2020 one. It is also in dispute that he was dismissed as the respondent is saying because his employment was not captured, as a result of his non-disclosure that he had been dismissed by SAPS for absenteeism, he cannot be said to have been dismissed.
9. The applicant testified that he has been teaching from 2008. He qualified as a fully-fledged educator in 2016 when he got his NPDE Senior Phase and FET Phase qualification form North West University. He got registered with SACE in 2012. He joined the Barkley East Primary School as a volunteer teacher, teaching mathematics and natural sciences in senior and intermediate phase, in January 2020. While still a volunteer the post he volunteered on was advertised in the local newspaper. The applicant applied for the position and was called to an interview, with another candidate who did not make to the interview. In the interview there was a form he filled, which asked him about his previous employment. He indicated in it that he had worked for South African Police (SAPS) some years ago as admin clerk, and had been dismissed in 2004 after he had absented himself from work for more than one month. The applicant was the ultimate winner and he got appointed. He was then made to sign assumption of duty form, effecting his employment from 01 April 2020. Unfortunately, hard lockdown had started by then and physical teaching and learning could not happen. He did render educator duties though as teaching plans were done and in some instances lessons were conveyed to leaners through School’s Facebook Page. When lockdown was lifted he was made to sign another assumption of duty form with effective date of 01 June 2020. Then thereafter he was told that his employment could not be captured in Persal as he had been blocked, and was reflected as having been dismissed. He had filed a dispute against the respondent seeking a relief to have the period 01 April to 31 May 2020 paid. He was advised to withdraw the dispute as it would be impossible to capture his employment whilst there was still a dispute under his name. He, with his union assistance withdrew the dispute, and attempts to capture his employment were made, while he rendered teaching duties at School. On 24 September 2020 he was advised that he would not be employed as the respondent was unable to capture him as his employee, owing to him being blocked in Persal by SAPS. The respondent also regarded him as having been dishonest by not mentioning in his CV and application form that he had been SAPS employee and had been dismissed after having absented himself for a long time. The applicant, on the other hand, is saying he had not mentioned SAPS experience whenever he applied for teaching positions as he regarded such information as not relevant in teaching profession. He also says that on the day of his interview, in March 2020, he had disclosed in the declaration form and before the interviewing panel that he had worked for SAPS and got dismissed for prolonged absence.
10. Ms Inge Wagenaar (Barkley Primary School Principal, and the wife to the applicant) testified that when she got to the school and assumed her duties as principal she identified two vacant teaching positions which were of critical importance. The other one was mathematics and life sciences for intermediate and senior phase. She liaised with her Circuit manager and the District Office to have the post filled. The post was funded, and it got advertised in the local newspaper as a walk-in post. The applicant and another incumbent showed interest in the post and applied. The applicant ended up being the only candidate interviewed for the position as the other candidate did not pitch up. She consciously recused herself from the interview process as she felt she was conflicted because the applicant is her husband. She then got advised that the applicant was successful. She took his documents, which included his CV, qualification copies, interview minutes and the declaration form he had signed indicating that he had worked for SAPS and got dismissed for absenteeism. An assumption of duty letter dated 01 April 2020 was sent to the School and the applicant was made to sign it. Unfortunately it could not be taken back to the District Office due to hard lock down which had taken effect by then. When hard lock down was lifted he was issued with another assumption of duty letter dated 01 June 2020, which he signed and was taken back to the district. From 01 April 2020 he had assisted with preparations for lessons and other school admin work. When lock down was lifted he rendered teaching services, even though there was delay in capturing of his employment. It was on 24 September 2020 that he was told to leave School as his employment could not be captured owing to the fact that he had been dismissed by SAPS and captured as such in the Persal system.
11. Mr Koos Deklerk (Barkley East SGB member) testified that the applicant had rendered teacher volunteer duties before his recruitment in March 2020. He was in the interview panel, and remembers that the secretary had brought in the applicant’s interview a declaration he had filled and signed and in it the applicant had made known that he had been dismissed by SAPS after having been absent from work for a long time.
12. Ms Inosencia Zoleka Masiza (respondent’s deputy director- human resources admin at the district office under which Barkley East falls) testified the post was a walk in one and the School was allowed to employ any qualifying candidate. Her office had received documents pertaining the post and processed them. The end result was that the issuing of his assumption of duty effective from 01 April 2020. Unfortunately because of hard lock down they had to withdraw all appointments, including the applicant’s as it was impossible for the incumbents to assume duties. The applicant ended up being issued with assumption of duty dated 01 June 2020. She acknowledged that he had at some point filed a dispute to have the period from 01 April 2020 to 31 May 2020 paid, and had after agreeing with the respondent withdrew his dispute as it was seen to have had the potential of delaying the processing of his employment. It later became apparent that it was impossible to capture him as employee as he had been dismissed in 2004 by SAPS for having absented himself for a long time. This information was not declared in his CV and application form and the respondent regarded this as deliberate and dishonest. After several attempts to capture him failed it became apparent that he could not be employed and on 24 September 2020 he was advised that he could not be employed. The applicant cannot be said to have been employed by the respondent as he was never captured as employee. He therefore cannot be said to have been dismissed. The witness acknowledged though there was a declaration form which he had signed during the interview indicating that he had been dismissed by SAPS for prolonged absenteeism.
13. It was argued for the applicant that the applicant did not include his employment history in his CV and application form as he did not view SAPS admin clerk experience relevant to the teaching position he had applied for. He had, however disclosed to the school during his interview and in the declaration form he filled in and signed on the day of his interview. The declaration form was part of the documents filed by the school principal to the respondent’s district office. The applicant cannot be said to have concealed the fact that he was dismissed by SAPS, in terms of section 17(5) of Public Service Act, for having absented himself for more than thirty days. The respondent should therefore be ordered to capture the applicant’s employment in terms of the 01 April 2020 assumption of duty letter. Furthermore, the respondent should be ordered to pay the applicant for the period from 01 April 2020 to 24 September 2020, as this was the period he had been at the School and rendered duties there.
14. It was argued for the respondent that the applicant was recruited as a walk inn teacher, and was not supposed to undergo vigorous normal recruitment processes. His appointment was to be effected through an assumption of duty letter, which said he was to commence duties as from 01 April 2020. Unfortunately, he together with other educators appointed then could not assume or commence duties as a hard lockdown was implemented. His assumption of duty letter, and letters for other educators appointed at that time were withdrawn. He then signed assumption of duty letter which was to make his appointment effective from 01 June 2020. Relying on his qualifications and what was in his CV district officials tried to capture his appointment, but that could not be possible as it transpired that he had been dismissed by SAPS in 2004. He had not disclosed this information in his application form, as was required in the application form paragraph 21, asking for other working experience. So, he is the one who was dishonest as he did not disclose that he had been dismissed by SAPS in 2004. His employment could not be captured as he had been blocked in the persal system. He therefore cannot be said to have been dismissed. In his appointment letter there is a part which says that his appointment would be reversed should it be found that there was misrepresentation from his side. His employment was therefore never effected and he does not even qualify for a month’s notice. The respondent is unable to unblock him, and only SAPS can unblock him. There was therefore no dismissal.
ANALYSIS OF EVIDENCE AND ARGUMENTS
15. The applicant had not mentioned in his CV and in the application form that he had worked for SAPS and had been dismissed. However it cannot be said that he withheld this information. His explanation that he had not seen a point in mentioning it in his CV and application form is somehow convincing as he might have subjectively thought so. But, however, when called upon to declare such information through the declaration form he did not hold back as he disclosed in it (being the respondent’s official document) that he had been in SAPS employment and had been dismissed for prolonged absence. I further find that he cannot be said to have acted dishonestly and withheld the said information, as it has been proven that he did disclose it. When he was told to leave work on 24 September 2020 he was dismissed as he had been in the respondent’s employ even though it had not been captured by then. The applicant had rendered teaching services in that period. His dismissal was also procedurally unfair as he was not given an opportunity to say or state anything before he got dismissed.
16. On the issue of whether his employment should be regarded as having commenced on 01 April 2020, the School principal testified that she could not send to the signed assumption of duty letter back to the District Office due to hard lock down. The applicant signed the 01 June 2020 one, which is the one the District officials worked on in trying to capture his employment. The applicant and his representative acknowledged having filed a dispute about payment sought for this period, which they later withdrew after negotiations amongst themselves. The withdrawal was to give way for the ultimate capturing of the applicant’s employment, which unfortunately never materialized. Because of the fact that 01 April 2020 assumption of duty was not submitted after being signed, and the fact that the applicant had abandoned his claim to the period from 01 April to 31 May 2020 paid, it would be unfair to order the respondent to pay the applicant for the period.
17. It was undisputed that from the date of issue of the applicant’s assumption of duty from 01 June 2020, which he signed and was returned to the District Office, the applicant continued to render teaching duties up to 24 September 2020, when he was told to no longer continue working. I find that it is fair and reasonable to order the respondent to pay him for this period.
18. In the circumstances I find that the respondent did dismiss him when on 24 September 2020 it told him to leave the school and cease rendering teaching services. The dismissal was without justifiable reason as he had declared in the declaration form that he had been dismissed by SAPS for long absence. His dismissal was also procedurally unfair as he was not given any opportunity to make any representation before he got dismissed. The respondent can, after his persal blockage has been removed by SAPS capture his employment (not retrospective) as an educator on terms appearing in the 01 June 2020 assumption of duty letter he signed and accepted. Section 61(1) and (3) of the Public Service Regulations of 2016, as amended does allow the applicant to be re-employed in the public service as a year has passed after his dismissal.
19. The respondent also owes the applicant three months and twenty four days salary, R 96 961.26 (R31 971.01 x 3 months + R1 048.23 x 24 days). This owed salary relates to the days worked shortly before he got dismissed. As there is no known justification for withholding the applicant’s owed salary, the respondent is therefore liable to pay it.
AWARD
20. I therefore make the following award:
20.1. The applicant, Gideon Jacobus Johannes Wagenaar, was dismissed and his dismissal was procedurally and substantively unfair.
20.2. The respondent, the Provincial Department of Education, Eastern Cape, is ordered to capture the applicant as its employee in terms of the appointment letter and assumption of duty letter dated 01 June 2020, as an educator at Barkley East Primary School, immediately after SAPS has unblocked him from persal.
20.3. The respondent is also ordered to pay the applicant’s three months, twenty four days outstanding salary of R 96 961.26 (R31 971.01 x 3 months + R1 048.23 x 24 days) by not later than 20 December 2021.
20.4. The applicant is to report for duty at the respondent's premises (last place of employment- Barkley East Primary School) by not later than five days after being made aware that his employment has been captured in the respondent’s persal system.
Signature:
Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC
In the matter between
Gideon Jacobus Johannes Wagenaar Applicant
and
Provincial Department of Education, Eastern Cape Respondent
Appearances: For the applicant: Ms Venita van Wyk (SAOU official);
For respondent: Ms Nokuthula Sikithi (SGB Chairperson)
Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 24 August 2021; 04 November 2021
Delivered: 25 November 2021
Summary: Labour Relations Act 66 of 1995, as amended, section 186(1)(a)-
Alleged unfair dismissal by terminating employment contract without a notice
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was held virtually on 24 August 2021 and 04 November 2021. Mr Gideon Jacobus Johannes Waggenar (applicant) was in attendance in both session and was represented by a SAOU official, Ms Venitta van Wyk. The Provincial Department of Education, Eastern Cape (respondent) was represented by its labour relations manager, Ms Nokuthula Sikithi.
2. The dispute is about unfair dismissal which is alleged to have happened when the respondent terminated the applicant’s employment contract without a notice, in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The respondent is denying that the applicant was dismissed and is saying he never became its employee.
3. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 11 November 2021. Both parties submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
4. I am required to determine whether the applicant was dismissed by the respondent, and if indeed he was dismissed whether the dismissal was procedurally and substantively fair. The applicant is also seeking to have his owed salary consolidated to this dispute, in terms of section 74(2) of the Basic Conditions of Employment Act 75 of 1997 as amended (BCEA), and paid to him. Should I find that there was dismissal and it was unfair I will order an appropriate relief.
BACKGROUND TO THE ISSUE
5. The applicant says he started to work for the respondent on 01 April 2020 (when he got the assumption of duty to commence his teaching duties at Barkley East Primary School). Then on 01 June 2020 he was given the second assumption of duty letter, whilst he had already been rendering duties at Barkley East Primary School. He got dismissed on 24 September 2020 when the respondent terminated his employment without notice. At the time of termination of employment he was earning a gross monthly salary of R23 336.50 plus R8 634.51, which is 37% in lieu of benefit. In total she earned R31 971.01 per month.
6. The respondent, on the other hand, is disputing that the applicant got to its employ in the first place. Inasmuch as he had been recruited to be a teacher at Barkley East Primary School he could not be captured as an employee on persal because he had been previously employed with another government department, SAPS, and had been dismissed for unauthorised absence. He also did not disclose when he was recruited that he had left a government through dismissal. The respondent is therefore disputing that the applicant was dismissed.
7. He is challenging the substantive fairness of his dismissal. He is also seeking to be paid owed salary for period ranging from 01 April 2020 to end September 2020, which is five months + twenty four days, amounting to (R31 971.01 x 5 months + R1 048.23 x 24 days) R185 501.57 which has not been paid to him from the time he commenced employment and duties with the respondent up to the time his employment was terminated.
SURVEY OF THE EVIDENCE AND ARGUMENTS
8. It is common cause that the respondent had in January 2020 advertised a teaching post for Barkley East Primary School. The applicant was called to the interview and the respondent’s District Office was made aware that he was a successful candidate. The post is categorized as permanent, but an appointed incumbent is to undergo twelve months’ probation period before being confirmed permanent. This is confirmed in the offer letter the applicant had received and signed. What is in dispute is whether the assumption of duty letter worth considering was the 1st April or 1st June 2020 one. It is also in dispute that he was dismissed as the respondent is saying because his employment was not captured, as a result of his non-disclosure that he had been dismissed by SAPS for absenteeism, he cannot be said to have been dismissed.
9. The applicant testified that he has been teaching from 2008. He qualified as a fully-fledged educator in 2016 when he got his NPDE Senior Phase and FET Phase qualification form North West University. He got registered with SACE in 2012. He joined the Barkley East Primary School as a volunteer teacher, teaching mathematics and natural sciences in senior and intermediate phase, in January 2020. While still a volunteer the post he volunteered on was advertised in the local newspaper. The applicant applied for the position and was called to an interview, with another candidate who did not make to the interview. In the interview there was a form he filled, which asked him about his previous employment. He indicated in it that he had worked for South African Police (SAPS) some years ago as admin clerk, and had been dismissed in 2004 after he had absented himself from work for more than one month. The applicant was the ultimate winner and he got appointed. He was then made to sign assumption of duty form, effecting his employment from 01 April 2020. Unfortunately, hard lockdown had started by then and physical teaching and learning could not happen. He did render educator duties though as teaching plans were done and in some instances lessons were conveyed to leaners through School’s Facebook Page. When lockdown was lifted he was made to sign another assumption of duty form with effective date of 01 June 2020. Then thereafter he was told that his employment could not be captured in Persal as he had been blocked, and was reflected as having been dismissed. He had filed a dispute against the respondent seeking a relief to have the period 01 April to 31 May 2020 paid. He was advised to withdraw the dispute as it would be impossible to capture his employment whilst there was still a dispute under his name. He, with his union assistance withdrew the dispute, and attempts to capture his employment were made, while he rendered teaching duties at School. On 24 September 2020 he was advised that he would not be employed as the respondent was unable to capture him as his employee, owing to him being blocked in Persal by SAPS. The respondent also regarded him as having been dishonest by not mentioning in his CV and application form that he had been SAPS employee and had been dismissed after having absented himself for a long time. The applicant, on the other hand, is saying he had not mentioned SAPS experience whenever he applied for teaching positions as he regarded such information as not relevant in teaching profession. He also says that on the day of his interview, in March 2020, he had disclosed in the declaration form and before the interviewing panel that he had worked for SAPS and got dismissed for prolonged absence.
10. Ms Inge Wagenaar (Barkley Primary School Principal, and the wife to the applicant) testified that when she got to the school and assumed her duties as principal she identified two vacant teaching positions which were of critical importance. The other one was mathematics and life sciences for intermediate and senior phase. She liaised with her Circuit manager and the District Office to have the post filled. The post was funded, and it got advertised in the local newspaper as a walk-in post. The applicant and another incumbent showed interest in the post and applied. The applicant ended up being the only candidate interviewed for the position as the other candidate did not pitch up. She consciously recused herself from the interview process as she felt she was conflicted because the applicant is her husband. She then got advised that the applicant was successful. She took his documents, which included his CV, qualification copies, interview minutes and the declaration form he had signed indicating that he had worked for SAPS and got dismissed for absenteeism. An assumption of duty letter dated 01 April 2020 was sent to the School and the applicant was made to sign it. Unfortunately it could not be taken back to the District Office due to hard lock down which had taken effect by then. When hard lock down was lifted he was issued with another assumption of duty letter dated 01 June 2020, which he signed and was taken back to the district. From 01 April 2020 he had assisted with preparations for lessons and other school admin work. When lock down was lifted he rendered teaching services, even though there was delay in capturing of his employment. It was on 24 September 2020 that he was told to leave School as his employment could not be captured owing to the fact that he had been dismissed by SAPS and captured as such in the Persal system.
11. Mr Koos Deklerk (Barkley East SGB member) testified that the applicant had rendered teacher volunteer duties before his recruitment in March 2020. He was in the interview panel, and remembers that the secretary had brought in the applicant’s interview a declaration he had filled and signed and in it the applicant had made known that he had been dismissed by SAPS after having been absent from work for a long time.
12. Ms Inosencia Zoleka Masiza (respondent’s deputy director- human resources admin at the district office under which Barkley East falls) testified the post was a walk in one and the School was allowed to employ any qualifying candidate. Her office had received documents pertaining the post and processed them. The end result was that the issuing of his assumption of duty effective from 01 April 2020. Unfortunately because of hard lock down they had to withdraw all appointments, including the applicant’s as it was impossible for the incumbents to assume duties. The applicant ended up being issued with assumption of duty dated 01 June 2020. She acknowledged that he had at some point filed a dispute to have the period from 01 April 2020 to 31 May 2020 paid, and had after agreeing with the respondent withdrew his dispute as it was seen to have had the potential of delaying the processing of his employment. It later became apparent that it was impossible to capture him as employee as he had been dismissed in 2004 by SAPS for having absented himself for a long time. This information was not declared in his CV and application form and the respondent regarded this as deliberate and dishonest. After several attempts to capture him failed it became apparent that he could not be employed and on 24 September 2020 he was advised that he could not be employed. The applicant cannot be said to have been employed by the respondent as he was never captured as employee. He therefore cannot be said to have been dismissed. The witness acknowledged though there was a declaration form which he had signed during the interview indicating that he had been dismissed by SAPS for prolonged absenteeism.
13. It was argued for the applicant that the applicant did not include his employment history in his CV and application form as he did not view SAPS admin clerk experience relevant to the teaching position he had applied for. He had, however disclosed to the school during his interview and in the declaration form he filled in and signed on the day of his interview. The declaration form was part of the documents filed by the school principal to the respondent’s district office. The applicant cannot be said to have concealed the fact that he was dismissed by SAPS, in terms of section 17(5) of Public Service Act, for having absented himself for more than thirty days. The respondent should therefore be ordered to capture the applicant’s employment in terms of the 01 April 2020 assumption of duty letter. Furthermore, the respondent should be ordered to pay the applicant for the period from 01 April 2020 to 24 September 2020, as this was the period he had been at the School and rendered duties there.
14. It was argued for the respondent that the applicant was recruited as a walk inn teacher, and was not supposed to undergo vigorous normal recruitment processes. His appointment was to be effected through an assumption of duty letter, which said he was to commence duties as from 01 April 2020. Unfortunately, he together with other educators appointed then could not assume or commence duties as a hard lockdown was implemented. His assumption of duty letter, and letters for other educators appointed at that time were withdrawn. He then signed assumption of duty letter which was to make his appointment effective from 01 June 2020. Relying on his qualifications and what was in his CV district officials tried to capture his appointment, but that could not be possible as it transpired that he had been dismissed by SAPS in 2004. He had not disclosed this information in his application form, as was required in the application form paragraph 21, asking for other working experience. So, he is the one who was dishonest as he did not disclose that he had been dismissed by SAPS in 2004. His employment could not be captured as he had been blocked in the persal system. He therefore cannot be said to have been dismissed. In his appointment letter there is a part which says that his appointment would be reversed should it be found that there was misrepresentation from his side. His employment was therefore never effected and he does not even qualify for a month’s notice. The respondent is unable to unblock him, and only SAPS can unblock him. There was therefore no dismissal.
ANALYSIS OF EVIDENCE AND ARGUMENTS
15. The applicant had not mentioned in his CV and in the application form that he had worked for SAPS and had been dismissed. However it cannot be said that he withheld this information. His explanation that he had not seen a point in mentioning it in his CV and application form is somehow convincing as he might have subjectively thought so. But, however, when called upon to declare such information through the declaration form he did not hold back as he disclosed in it (being the respondent’s official document) that he had been in SAPS employment and had been dismissed for prolonged absence. I further find that he cannot be said to have acted dishonestly and withheld the said information, as it has been proven that he did disclose it. When he was told to leave work on 24 September 2020 he was dismissed as he had been in the respondent’s employ even though it had not been captured by then. The applicant had rendered teaching services in that period. His dismissal was also procedurally unfair as he was not given an opportunity to say or state anything before he got dismissed.
16. On the issue of whether his employment should be regarded as having commenced on 01 April 2020, the School principal testified that she could not send to the signed assumption of duty letter back to the District Office due to hard lock down. The applicant signed the 01 June 2020 one, which is the one the District officials worked on in trying to capture his employment. The applicant and his representative acknowledged having filed a dispute about payment sought for this period, which they later withdrew after negotiations amongst themselves. The withdrawal was to give way for the ultimate capturing of the applicant’s employment, which unfortunately never materialized. Because of the fact that 01 April 2020 assumption of duty was not submitted after being signed, and the fact that the applicant had abandoned his claim to the period from 01 April to 31 May 2020 paid, it would be unfair to order the respondent to pay the applicant for the period.
17. It was undisputed that from the date of issue of the applicant’s assumption of duty from 01 June 2020, which he signed and was returned to the District Office, the applicant continued to render teaching duties up to 24 September 2020, when he was told to no longer continue working. I find that it is fair and reasonable to order the respondent to pay him for this period.
18. In the circumstances I find that the respondent did dismiss him when on 24 September 2020 it told him to leave the school and cease rendering teaching services. The dismissal was without justifiable reason as he had declared in the declaration form that he had been dismissed by SAPS for long absence. His dismissal was also procedurally unfair as he was not given any opportunity to make any representation before he got dismissed. The respondent can, after his persal blockage has been removed by SAPS capture his employment (not retrospective) as an educator on terms appearing in the 01 June 2020 assumption of duty letter he signed and accepted. Section 61(1) and (3) of the Public Service Regulations of 2016, as amended does allow the applicant to be re-employed in the public service as a year has passed after his dismissal.
19. The respondent also owes the applicant three months and twenty four days salary, R 96 961.26 (R31 971.01 x 3 months + R1 048.23 x 24 days). This owed salary relates to the days worked shortly before he got dismissed. As there is no known justification for withholding the applicant’s owed salary, the respondent is therefore liable to pay it.
AWARD
20. I therefore make the following award:
20.1. The applicant, Gideon Jacobus Johannes Wagenaar, was dismissed and his dismissal was procedurally and substantively unfair.
20.2. The respondent, the Provincial Department of Education, Eastern Cape, is ordered to capture the applicant as its employee in terms of the appointment letter and assumption of duty letter dated 01 June 2020, as an educator at Barkley East Primary School, immediately after SAPS has unblocked him from persal.
20.3. The respondent is also ordered to pay the applicant’s three months, twenty four days outstanding salary of R 96 961.26 (R31 971.01 x 3 months + R1 048.23 x 24 days) by not later than 20 December 2021.
20.4. The applicant is to report for duty at the respondent's premises (last place of employment- Barkley East Primary School) by not later than five days after being made aware that his employment has been captured in the respondent’s persal system.
Signature:
Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC