ELRC644-20/21 EC
Text
ELRC72 – 21/22EC
Award Date:
07 December 2021
Case Number: ELRC72 – 21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 07 December 2021
In the matter between
Kockera, E
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Union/Applicant’s representative:
Mr T Potgieter, an attorney from Potgieter Attorneys
Telephone: 082 448 2114
Telefax:
E-mail: Theotdplabourlaw.co.za
Respondent’s representative: Mr E Hector
Respondent’s address: Department of Education- Eastern Cape
Telephone: 072 590 2685
Telefax:
E-mail: Euan.Hector@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 18 June 2021, 30 August 2021, 25 October 2021 and face to face on17 November 2021.
2 The applicant, Ms E Kockera, was represented by Mr T Potgieter, an attorney from Potgieter Attorneys. The respondent, the Department of Education – Eastern Cape, was represented by Mr E Hector, a Labour Relations officer employed by the Respondent.
3 The hearing was held in English and Afrikaans, the proceedings were 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 by no later than 24 November 2021, both parties did so. The Applicant in its email submitting arguments indicate that they were not served with the Respondents arguments, and thus accepts that arguments were not filed.
5 There was no requirement for the Respondent to serve arguments on the Respondent, parties agree to file arguments to the ELRC simultaneously, and not an answer and reply to basis. On that basis, the Respondents arguments were accepted and considered.
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 an alleged unfair dismissal dispute for reasons unknown to the Education Labour Relations Council (ELRC). The matter was conciliated, conciliation was unsuccessful, and a certificate of non-resolution was issued.
8. The Applicant filed a request to the ELRC to have the dispute arbitrated. The matter was scheduled for arbitration and was postponed, the Respondent also raised a jurisdictional challenge whereafter a ruling was issued that evidence must be presented in relation to these jurisdictional issues raised.
9. Parties concluded a pre-arb minute on 29 September 2021 and filed same with the ELRC.
10. The Applicant sought to be reinstated retrospectively with effect from 22 March 2021, alternatively, compensation equal to 12 months’ salary, payment to the amount of R527 556.00 in terms of outstanding salary plus interest at the applicable rate.
11. The following facts are common cause: The Applicant accepted her appointment on 28 August 2019, the Applicant was appointed as educator post level 1 at Kareedouw Primary School and that the Applicant was remunerated at salary notch R279 198.00.
12. The Applicant submitted three bundles of documents into record which they will rely on during the proceedings. The documents were accepted into record to the extent that they are what they purports to be.
Survey of evidence
13. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
Respondent’s evidence
14. Mr Cunningham testified in short, that he is employed as the Principal at Kareedouw Primary School by the Department of Education. The Applicant was employed during 2019 to December 2019 on a fixed term contract as she was a previously resigned educator and an application had to be made to the Superintendent General (SG) to permanently appoint the Applicant.
15. After the Applicants employment came to an end during 2019, she was approached and appointed by the School Governing Body (SGB) at a salary of R5000.00 per month. The school is a no-fees school and during October 2020, the Applicant was called in and informed that the school does not have money to pay her salary and her services will be terminated during December 2020.
16. Mr Cunningham further testified that during February 2021, the schools re-opened, and he was informed that the Applicant was at the school, he approached the Applicant who informed him that her union (SADTU) informed her to report for duty and he asked her to leave the premisses.
17. Under cross examination Mr Cunningham stated the following, that the Applicant was appointed on a fixed term contract from 01 September 2019 to 31 December 2019 which does not reflect as such on the offer letter, but that he saw the contract and the assumption of duty was from 01 September 2019.
18. Mr Cunningham also stated that he advised the Applicant that he will re-apply on her behalf to the Department of Education for her appointment, and that her SGB appointment ended during December 2020. The offer letter is not a true reflection of what transpired.
19. The SGB borrowed the Applicant money for the period she was appointed for by the Department of Education during 2019 and she re-paid it to the SGB during 2020 when she was paid by the Department of Education.
Analysis
20. 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.
21. 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.
22. There are very little that is common cause in this dispute, what transpired through the evidence was that the Applicant was issued with an offer of employment by the Education Department, which the Applicant accepted. One can thus argue that a valid contract came into being between the Department of Education and the Applicant.
23. However, nothing in this dispute seems to be as it appeared, one can only ascribe this to the poor application of good labour relations practices. In terms of the pre-arb minute, many issues were raised that is in dispute, but in the main, the issues in dispute are whether the Applicant was employed on an indefinite period.
24. The Respondents evidence was that the Applicant was a previously employed educator and could therefore only be appointed on a fixed term contract. This evidence stands undisputed and must be accepted. It must also be stated that the Applicant elected not to testify in these proceedings, nor to call any witnesses, but to base her entire case on the offer and acceptance letter, this leaves one with no other option but to draw an adverse inference against the Applicant. The Respondent in argument correctly stated that the Applicants representatives’ propositions put to the witness under cross-examination, cannot be accepted as evidence.
25. In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu – Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of the rule that an adverse inference should be drawn from a party’s failure to call a witness/is that the evidence that that party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.
26. The Applicant in closing made reference to an affidavit submitted by the Applicant which stands undisputed and must be accepted. I cannot agree with this sentiment. The affidavit was never presented during the arbitration to be rebutted, neither did the Applicant testified on the content of the affidavit. It is so that the documents were accepted into record to the extent that they are what they purports to be, but that does not conclude that the veracity of its content were accepted to be true and correct. What is before me, is a signed pre-arbitration minute wherein the parties agree that no evidence on affidavit will be submitted. On that basis, the Applicants version in terms of the affidavit is not before me.
27. 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.
28. 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.
29. 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, it is unclear what transpired after the offer and its acceptance, save, that from Mr Cunningham’s evidence, the Applicant was a previously employed educator and was therefore placed on a fixed term contract.
30. It is trite that the employment of educators are regulated through the Employment of Educators Act 76 of 1998 (the Educators Act), and the PAM.
31. 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.”
32. 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.
33. Now turning to the PAM as amended 2016, in Chapter B, Regulation 3, that deals with the appointment and re-appointment of educators.
34. 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.
35. 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).”
36. No evidence was placed before me on the reason why the Applicant resigned or how here services came to an end that she is a previously employed educator. What is fact, is that she was a previously employed educator and as Mr Cunningham correctly stated, they had to obtain permission from the HOD to re-employ the Applicant. The PAM confirms the Respondents version in paragraphs 3.4.1.1 and 3.4.1.2. On that basis, the Respondents version is more probable, one cannot rely on the offer letter in isolation to determine the true relationship that came into existence between the parties.
37. If we accept that the Applicant was employed by the Department of Education for the duration 1 September 2019 to 31 December 2019, the Applicants referral is out of time, and the ELRC lack jurisdiction to hear the dispute.
38. Mr Cunningham’s evidence was further that the Applicant was employed for the year 2020 by the SGB and that there were no further offers made by the Department of Education to the Applicant. Mr Cunningham under cross-examination was not shaken and stood by his evidence that there was a verbal agreement between the Applicant and the SGB which came to an end during December 2020. The Applicant in argument submits that the Respondent was unable to present any documents to substantiate their claim.
39. That might be so, but there is no legal requirement for an agreement to be in writing to exist, I already concluded that on a balance of probabilities, Mr Cunningham’s version of events is accepted.
40. When the Applicant turned up at the school during February 2021, he advised her that there was no further contract between the parties. The Applicant referred a dispute on 26 April 2021 as per page 19 of the Applicants bundle. If one needs to accept that February was the date of dismissal, the Applicants referral is out of time.
41. I will now turn to whether the Applicant was employed by the Department of Education or the SGB. Mr Cunningham evidence must stand as the most probable version. The payments by the Department of Education to the Applicant was for the period the Applicant worked for during 2019. The three remittance advices attached to the documents made reference of a 37% service benefit which is associated with a 37% in lieu of benefits paid to employees who were employed on a fixed term contract.
42. On that basis, it is accepted that the Applicant was employed during 2020 by the SGB and that the ELRC does not have jurisdiction to entertain an alleged unfair dismissal dispute between an SGB and an SGB appointed educator, and any employment dispute arising from such relationship may exclusively be adjudicated by the CCMA or the Labour Court. Due to the fat that there was no employment relationship between the Applicant and the Respondent during 2020, the Respondent could not have dismissed the Applicant as contemplated in the LRA.
43. It was further Mr Cunningham’s evidence that there was no further offers by the Department of Education made to the Applicant.
44. In light of the above, I find it appropriate to make the following award.
Award
45. The ELRC does not have the necessary jurisdiction to hear the dispute referred under case number ELRC72-21/22EC.
46. The Applicant is not entitled to any relief.
47. There is no order as to costs, each party to carry its own costs, there is no reason that the result should be followed by an order of costs against the Applicant.
Signature:
Commissioner: Henk Jacobs
Commissioner: Henk Jacobs
Date of Ruling: 07 December 2021
In the matter between
Kockera, E
(Applicant)
And
Department of Education – Eastern Cape
(Respondent)
Union/Applicant’s representative:
Mr T Potgieter, an attorney from Potgieter Attorneys
Telephone: 082 448 2114
Telefax:
E-mail: Theotdplabourlaw.co.za
Respondent’s representative: Mr E Hector
Respondent’s address: Department of Education- Eastern Cape
Telephone: 072 590 2685
Telefax:
E-mail: Euan.Hector@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 18 June 2021, 30 August 2021, 25 October 2021 and face to face on17 November 2021.
2 The applicant, Ms E Kockera, was represented by Mr T Potgieter, an attorney from Potgieter Attorneys. The respondent, the Department of Education – Eastern Cape, was represented by Mr E Hector, a Labour Relations officer employed by the Respondent.
3 The hearing was held in English and Afrikaans, the proceedings were 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 by no later than 24 November 2021, both parties did so. The Applicant in its email submitting arguments indicate that they were not served with the Respondents arguments, and thus accepts that arguments were not filed.
5 There was no requirement for the Respondent to serve arguments on the Respondent, parties agree to file arguments to the ELRC simultaneously, and not an answer and reply to basis. On that basis, the Respondents arguments were accepted and considered.
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 an alleged unfair dismissal dispute for reasons unknown to the Education Labour Relations Council (ELRC). The matter was conciliated, conciliation was unsuccessful, and a certificate of non-resolution was issued.
8. The Applicant filed a request to the ELRC to have the dispute arbitrated. The matter was scheduled for arbitration and was postponed, the Respondent also raised a jurisdictional challenge whereafter a ruling was issued that evidence must be presented in relation to these jurisdictional issues raised.
9. Parties concluded a pre-arb minute on 29 September 2021 and filed same with the ELRC.
10. The Applicant sought to be reinstated retrospectively with effect from 22 March 2021, alternatively, compensation equal to 12 months’ salary, payment to the amount of R527 556.00 in terms of outstanding salary plus interest at the applicable rate.
11. The following facts are common cause: The Applicant accepted her appointment on 28 August 2019, the Applicant was appointed as educator post level 1 at Kareedouw Primary School and that the Applicant was remunerated at salary notch R279 198.00.
12. The Applicant submitted three bundles of documents into record which they will rely on during the proceedings. The documents were accepted into record to the extent that they are what they purports to be.
Survey of evidence
13. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.
Respondent’s evidence
14. Mr Cunningham testified in short, that he is employed as the Principal at Kareedouw Primary School by the Department of Education. The Applicant was employed during 2019 to December 2019 on a fixed term contract as she was a previously resigned educator and an application had to be made to the Superintendent General (SG) to permanently appoint the Applicant.
15. After the Applicants employment came to an end during 2019, she was approached and appointed by the School Governing Body (SGB) at a salary of R5000.00 per month. The school is a no-fees school and during October 2020, the Applicant was called in and informed that the school does not have money to pay her salary and her services will be terminated during December 2020.
16. Mr Cunningham further testified that during February 2021, the schools re-opened, and he was informed that the Applicant was at the school, he approached the Applicant who informed him that her union (SADTU) informed her to report for duty and he asked her to leave the premisses.
17. Under cross examination Mr Cunningham stated the following, that the Applicant was appointed on a fixed term contract from 01 September 2019 to 31 December 2019 which does not reflect as such on the offer letter, but that he saw the contract and the assumption of duty was from 01 September 2019.
18. Mr Cunningham also stated that he advised the Applicant that he will re-apply on her behalf to the Department of Education for her appointment, and that her SGB appointment ended during December 2020. The offer letter is not a true reflection of what transpired.
19. The SGB borrowed the Applicant money for the period she was appointed for by the Department of Education during 2019 and she re-paid it to the SGB during 2020 when she was paid by the Department of Education.
Analysis
20. 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.
21. 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.
22. There are very little that is common cause in this dispute, what transpired through the evidence was that the Applicant was issued with an offer of employment by the Education Department, which the Applicant accepted. One can thus argue that a valid contract came into being between the Department of Education and the Applicant.
23. However, nothing in this dispute seems to be as it appeared, one can only ascribe this to the poor application of good labour relations practices. In terms of the pre-arb minute, many issues were raised that is in dispute, but in the main, the issues in dispute are whether the Applicant was employed on an indefinite period.
24. The Respondents evidence was that the Applicant was a previously employed educator and could therefore only be appointed on a fixed term contract. This evidence stands undisputed and must be accepted. It must also be stated that the Applicant elected not to testify in these proceedings, nor to call any witnesses, but to base her entire case on the offer and acceptance letter, this leaves one with no other option but to draw an adverse inference against the Applicant. The Respondent in argument correctly stated that the Applicants representatives’ propositions put to the witness under cross-examination, cannot be accepted as evidence.
25. In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu – Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) it was held that an adverse inference may be drawn against a party for failing to testify only if the evidence of the other party calls for a reply. It is a prerequisite to the application of the rule that an adverse inference should be drawn from a party’s failure to call a witness/is that the evidence that that party faces must have been of such a nature that, at the time the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.
26. The Applicant in closing made reference to an affidavit submitted by the Applicant which stands undisputed and must be accepted. I cannot agree with this sentiment. The affidavit was never presented during the arbitration to be rebutted, neither did the Applicant testified on the content of the affidavit. It is so that the documents were accepted into record to the extent that they are what they purports to be, but that does not conclude that the veracity of its content were accepted to be true and correct. What is before me, is a signed pre-arbitration minute wherein the parties agree that no evidence on affidavit will be submitted. On that basis, the Applicants version in terms of the affidavit is not before me.
27. 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.
28. 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.
29. 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, it is unclear what transpired after the offer and its acceptance, save, that from Mr Cunningham’s evidence, the Applicant was a previously employed educator and was therefore placed on a fixed term contract.
30. It is trite that the employment of educators are regulated through the Employment of Educators Act 76 of 1998 (the Educators Act), and the PAM.
31. 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.”
32. 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.
33. Now turning to the PAM as amended 2016, in Chapter B, Regulation 3, that deals with the appointment and re-appointment of educators.
34. 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.
35. 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).”
36. No evidence was placed before me on the reason why the Applicant resigned or how here services came to an end that she is a previously employed educator. What is fact, is that she was a previously employed educator and as Mr Cunningham correctly stated, they had to obtain permission from the HOD to re-employ the Applicant. The PAM confirms the Respondents version in paragraphs 3.4.1.1 and 3.4.1.2. On that basis, the Respondents version is more probable, one cannot rely on the offer letter in isolation to determine the true relationship that came into existence between the parties.
37. If we accept that the Applicant was employed by the Department of Education for the duration 1 September 2019 to 31 December 2019, the Applicants referral is out of time, and the ELRC lack jurisdiction to hear the dispute.
38. Mr Cunningham’s evidence was further that the Applicant was employed for the year 2020 by the SGB and that there were no further offers made by the Department of Education to the Applicant. Mr Cunningham under cross-examination was not shaken and stood by his evidence that there was a verbal agreement between the Applicant and the SGB which came to an end during December 2020. The Applicant in argument submits that the Respondent was unable to present any documents to substantiate their claim.
39. That might be so, but there is no legal requirement for an agreement to be in writing to exist, I already concluded that on a balance of probabilities, Mr Cunningham’s version of events is accepted.
40. When the Applicant turned up at the school during February 2021, he advised her that there was no further contract between the parties. The Applicant referred a dispute on 26 April 2021 as per page 19 of the Applicants bundle. If one needs to accept that February was the date of dismissal, the Applicants referral is out of time.
41. I will now turn to whether the Applicant was employed by the Department of Education or the SGB. Mr Cunningham evidence must stand as the most probable version. The payments by the Department of Education to the Applicant was for the period the Applicant worked for during 2019. The three remittance advices attached to the documents made reference of a 37% service benefit which is associated with a 37% in lieu of benefits paid to employees who were employed on a fixed term contract.
42. On that basis, it is accepted that the Applicant was employed during 2020 by the SGB and that the ELRC does not have jurisdiction to entertain an alleged unfair dismissal dispute between an SGB and an SGB appointed educator, and any employment dispute arising from such relationship may exclusively be adjudicated by the CCMA or the Labour Court. Due to the fat that there was no employment relationship between the Applicant and the Respondent during 2020, the Respondent could not have dismissed the Applicant as contemplated in the LRA.
43. It was further Mr Cunningham’s evidence that there was no further offers by the Department of Education made to the Applicant.
44. In light of the above, I find it appropriate to make the following award.
Award
45. The ELRC does not have the necessary jurisdiction to hear the dispute referred under case number ELRC72-21/22EC.
46. The Applicant is not entitled to any relief.
47. There is no order as to costs, each party to carry its own costs, there is no reason that the result should be followed by an order of costs against the Applicant.
Signature:
Commissioner: Henk Jacobs