ELRC644-20/21 EC
Text
ELRC137-21/22KZN
Award Date:
14 January 2022
Panelist: Sally-Jean Pabst
Case No.: ELRC137-21/22KZN
Date of Award: 14 December 2021
In the ARBITRATION between:
SADTU obo MBEJE, Ndumiso Welcome
(Union / Applicant)
and
Education Department of KwaZulu-Natal
(Respondent)
Applicant: Email: SmartyNdu@webmail.co.za
Applicant’s representative: Mr Mathews Mvunga Khomo
Email: MathewsKhomo@gmail.com
Respondent’s representative: Mr EBD Mpembe
Email: Sicelo.Zimema@kzndoe.gov.za/MpembeBonginkosi@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995, as amended (the LRA), for the alleged unfair dismissal of the Applicant, Mr Ndumiso Welcome Mbeje, by the Respondent, the Education Department of KwaZulu-Natal.
2. Condonation for the late referral was granted in a ruling, and a Certificate of Outcome declaring the matter unresolved at conciliation is on the file. The pre-arbitration conference was concluded, and I received the minutes via the ELRC portal.
3. This arbitration was conducted virtually via Zoom and video-recorded with the consent of the parties, on 6 December 2021, and completed on 14 December 2021.
4. The Applicant was represented by Mr Mathews Khomo, an official from the South African Democratic Teachers Union (SADTU).
5. The Respondent, the Department of Education (DOE) KwaZulu-Natal, was represented by Mr Don Mpembe.
6. The parties both submitted bundles of evidence, and it was agreed between the parties that the documents are what they purport to be.
7. The parties were to submit written closing arguments by no later than midnight on the 14th of December 2021.
BACKGROUND
8. I will firstly deal with my ex tempore ruling on 14 December 2021, regarding the absence of the Respondent representative Mr Mpembe.
RULING ON REFUSING POSTPONEMENT OF ARBITRATION ON 14 DECEMBER 2021
9. In terms of section 138(1) of the Labour Relations Act 66 of 1995 an arbitrating Commissioner may use his/her discretion as to the manner in which he/she would like to conduct the arbitration in order to determine the dispute fairly and quickly, whilst dealing with the substantial merits with the minimum of legal formalities.
10. The arbitration for this matter had been postponed three times before, always on application by the Respondent, on the day the arbitration was scheduled.
10.1. On 24 August 2021 the KZN DOE’s representative, Mr Mpembe, was reported by a delegate of the DOE to be booked off sick until 31 August 2021, sick certificate received to substantiate.
10.2. On 29 October 2021 Mr Mpembe appeared at the arbitration, but reported he had been unable to prepare for the arbitration as he had been booked off sick again for the month of September and October, and had returned from sick leave only 2 days before. Mr Mpembe assured myself and the Applicant that he intends to corroborate this account with a doctor’s certificate showing he’d been off sick for 2 months until 2 days before the arbitration. Sick certificate was promised, but never submitted, by Mr Mpembe.
10.3. On 6 December 2021 the Mr Mpembe pointed out that it had been agreed in the pre-arbitration minutes that the Applicant party would bring its case first in the arbitration. He assured me that, in spite of some difficulty with witnesses, he was ready to proceed with the arbitration. However, after the Applicant had brought his case to completion, Mr Mpembe pointed out that his two witnesses, the school principal and the head of HRSS, are not available to testify at the time. Because it was already 16h00, I decided we hear the Respondent’s case on a subsequent date, and the parties agreed to avail themselves for this 8 days later, on the 14th of December 2021.
11. On 14 December 2021 it was reported by a delegate of the DOE, Mr Zibuse Hadebe, who appeared on Mr Mpembe’s behalf, that he had taken ill on the morning of the arbitration, and that he was so ill that he was unable to log on to Zoom.
12. I consequently ruled ex tempore to the parties that I will allow the Respondent 2 hours 30 minutes to brief another representative or submit evidence of Mr Mpembe’s illness in the form of a formal postponement application with a doctor’s certificate appended, to which Mr Zibuse Hadebe of the KZN DOE received my ruling and agreed to revert accordingly at 12 noon.
13. Thereafter the Respondent failed to make contact, nor did they submit any proof of illness by 12h30. To this, the Applicant opposed a further postponement by alerting me to the fact that Mr Mpembe had also failed to submit any doctor’s certificate after his 29 October 2021 postponement granted in good faith on the basis of his promise to submit proof of illness over the preceding 2 months.
14. I noted the arbitration hearing for this matter had indeed enjoyed 4 sittings: 3 of which did not continue to fruition due to postponements granted to the Respondent for respectively, illness, not being prepared, witnesses unavailable, and now again an unconfirmed illness.
15. My ruling was therefore against a fifth postponement to accommodate the Respondent.
16. Consequently, the arbitration hearing was concluded without the Respondent bringing witnesses or closing arguments.
17. The Respondent did contribute to the proceedings with an opening statement, and cross-questioning of the Applicant during testimony, however nothing from the Respondent was attested to, hence weight allocated to the evidence, accordingly.
ISSUE TO BE DECIDED
18. I have to determine on a balance of probabilities whether the Applicant was dismissed, and if so, whether such dismissal was fair on both substantive and procedural grounds.
19. Then, if the Applicant was procedurally and/or substantively unfairly dismissed, I must determine the appropriate remedy in terms of sections 193 and 194 of the Labour Relations Act 66 of 1995.
BACKGROUND TO THE MATTER
20. The Applicant is a Post Level 1 educator, by qualification. He was employed as an educator by the KwaZulu-Natal Department of Education from 2008, working in a rural area.
21. He was employed on fixed term contracts that were renewed annually for a few years, and since 2015 the last fixed term was not renewed, but he stayed on indefinitely as part of the permanent staff.
22. Then in 2019, after he had been working for some 4 years after his last annual contract had expired, his contract was terminated in terms of a Circular from the Respondent directing unqualified or under-qualified educators to be terminated.
23. He referred a dispute to the Council, and was reinstated in terms of an ELRC arbitration award dated 22 May 2019. This award is included in the Respondent’s bundle and was admitted as evidence. I gather from the award that the Commissioner found in favour of the Applicant primarily because the Respondent’s failure to renew his fixed contracts, together with keeping him on in its employ, deems the Applicant to be a permanent employee.
24. In compliance with abovementioned ELRC award, the Respondent appeared to have created a new position for the Applicant to resume work at Dlangani High School from 1 November 2019. However, contrary to appearances, when the Applicant reported for work on 1 November 2019 he was told by a school governing body (SGB) delegate that there had been no post created there for him to fill at the school. The Applicant conveyed this to the Respondent, and thereafter reported for service at the Circuit Office.
25. On 28 November 2019 the Applicant received a letter, giving him 1 month notice of termination of service, from the Respondent. This termination was effective 31 December 2019, and is the reason why this dispute was referred to the ELRC.
26. The following factors from the view of the Applicant are in dispute:
26.1. The Applicant was in terms of an ELRC award reinstated from 1 November 2019, on an indefinite basis.
26.2. This, the Applicant’s permanent appointment was then terminated with an unfair dismissal, effective 31 December 2019.
26.3. The dismissal was substantively unfair: parity principle – ‘contemporaneous’ inconsistency – the Respondent customarily appoint people to work as educators pending qualification, just to confirm these appointments upon full qualification by the educator at a later stage. This applies to the Applicant in that he had even already completed his qualification and exams, and received his certification – a formality only – some months later during a graduation ceremony in May 2020.
26.4. The dismissal was procedurally unfair: the Respondent served the Applicant with an indefinite appointment letter – the Assumption of Duty form signed off by the District Director (M.T. Ndlovu) on 21 November 2019. Then the very next day a Termination of Service letter, with signature of the same Director dated 28 November 2019, without any hearing or process in the interim, terminating because the Applicant is ‘unqualified’.
26.5. The dismissal was substantively unfair: parity principle – ‘historical’ inconsistency – the Applicant had been working for the Respondent on various contracts, also as an educator, prior to his arbitration award-reinstatement, suggesting historical inconsistency.
26.6. The Applicant should have had a salary adjustment after his arbitration award-reinstatement, from 1 November 2019 onwards.
26.7. The Applicant also was owed a ‘rural allowance’ from the Respondent.
27. The Applicant wishes to receive from this process:
27.1. to be permanently appointed at Dlangani High School or any other school in the district.
27.2. to be awarded retrospective salaries from 1 January 2020 onwards, excluding 3½ months he stood in for someone on maternity leave.
27.3. to have the appropriate salary adjustment retrospectively from after his arbitration award-reinstatement, from 1 November 2019 onwards.
27.4. to receive retrospectively the ‘rural allowance’ from the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
28. A summary of the evidence of the parties is set out below. I have considered all the evidence and argument, but because the LRA requires only brief reasons in terms of its section 138(7), I only refer to the evidence and argument which I regarded as pivotal in substantiating my findings and the determination of this dispute.
RESPONDENT’S EVIDENCE
29. The Respondent in opening stated that the Applicant’s contract was correctly terminated with 30 days’ notice because he did not have the necessary qualifications required in terms of the legislation and the PAM document in evidence in the Respondent’s bundle page 21 to 26 showing that the DOE does not permanently employ educators who are not fully qualified. This action was correct because the Applicant only became qualified on the 15th of May 2020, hence his contract was terminated fairly for this reason, on 31 December 2019.
30. Mr Mpembe pointed out that Mr Mbeje should have a recognised career qualification and must be in possession of a professional teacher’s education qualification as set out on page 22 of the bundle, but only obtained this qualification in May 2020.
31. He explained that, due to the shortage of fully qualified educators available to the DOE, from time to time educators who have pending qualifications were employed on a temporary basis, but is then terminated if a suitably fully-qualified incumbent becomes available to the DOE.
32. Similarly, in compliance with the award, Mr Mbeje was appointed from November 2019, but in the post appointment it was discovered that Mr Mbeje did not meet the necessary minimum requirements.
33. This was, as stated on page 1 of the Respondent’s bundle, brought to the attention of the Applicant already. On the appointment letter dated 30 October 2019, in paragraph 3.1 of page 1. Reserve the right to withdraw this appointment if you do not meet the requirements..
34. Page 13 of the Applicant bundle, Applicant submits 15 May 2020 proof of qualification, showing in November 2019 he did not have this qualification yet.
35. Procedurally, the Respondent complied with the requirements of the LRA, giving the Applicant 30 days’ notice of termination of his contract, in terms also of paragraph 3.1 of page 1 of the Respondent’s bundle.
36. Mr Mpembe further stated his witness will submit there was an error committed by the person who completed the Appointment Letter on page 2 of the Respondent’s bundle, the person erroneously selected ‘permanent’ instead of ‘temporary’ on Mr Mbeje’s Notice of Assumption of Duty.
37. Also in paragraph 3.2 on page 1 it warns Mr Mbeje that the appointment may also be withdrawn if it turns out to be a procedurally incorrect appointment.
APPLICANT’S EVIDENCE
38. The Applicant party submitted that the award clearly stated the Applicant was to be reinstated and correctly remunerated, but this was not the case.
39. The Respondent had full knowledge that the Applicant had been registered and studying towards obtaining his full teaching qualification and he was about to be confirmed with the full certification of his qualification to fill the post at the time when the Appointment Letter was signed in October 2019.
40. The Union and the Respondent has an agreement that the educators appointed that is yet-to-be-qualified, as the case was with Mr Mbeje, would not be terminated until their qualifications are completed. Contrary to this agreement, the Respondent ‘rushed’ to sign the termination letter the Applicant, before his qualification would be confirmed.
41. At the time, the Applicant had finished his last exam already and was just waiting for his certificate. The Applicant had kept the Respondent always informed of the progress with his studies throughout the year, as the agreement was that he would be employed in terms of this pending qualification. That was the norm with many educators that were in the process of studying while working, because there is a shortage of teachers, and they also gain practical experience.
42. From the ELRC award in evidence the entire paragraph 46 was read into evidence and aptly appropriated it to the current situation, in that the case law cited promotes reinstatement as appropriate remedy for the sake of security of employment, providing the trust relationship is intact. Paragraph 46 also states clearly that “… under-qualified educators (such as the Applicant had been at the time of his dismissals, both the first and the second dismissal) were given a grace period for them to attain required qualifications or to submit proof that they were duly registered for those qualifications. … I therefore find that the applicant could still be reinstated as he has started a process to get himself professionally qualified” This was certainly the case with the Applicant, as he kept the Respondent constantly informed, and had qualified shortly after his second dismissal.
43. The May 2019 award instructed the Applicant must be reinstated, but contrarily, the Respondent was not intending to comply. The Respondent ‘jumped the gun’ by terminating the Applicant – even before he assumed service – and before they had even created a post for him.
44. As seen in the letter from the School Governing Body (SGB) of Dlangani High School (page 2 and 3 of the Applicant’s bundle), the school simply did not have a position for the Applicant to fill. The “Department” (Respondent) did not create a post for the Applicant, and all existing posts were successfully and effectively filled. There was no need for an addition. This seems like the Respondent was setting the Applicant up for failure, to make a wrong move out of pure frustration. Maybe they wished he would abscond or resign.
45. However, the Applicant did the right thing by not staying away, by appropriately escalating the situation and reporting for duty at the Circuit Office while waiting for the Respondent to comply with the award by creating another post for the Applicant, in compliance with the award and its court enforcement.
46. However, in response to this, the Respondent instead of creating a post, opted to quickly terminate the Applicant’s appointment, with reasoning similar to the Applicant’s termination December 2017, as illustrated by paragraph 46 of the arbitration award of May 2019.
47. THE APPLICANT WAS PLACED UNDER OATH after which he testified that on 28 November 2019 he was surprised to be served with a termination letter the day after he received a letter of appointment on 27 November 2019.
48. Mr Mbeje stated he had just sent off all the requested documentation to the Human Resources Department of the Respondent – his ID document, matric certificate, national diploma in accounting, bank statement, and proof of final examination for his studies towards his full teaching qualification – for him to be placed on ‘the system’ again.
49. He resents the Respondent deliberately sending him to Dlangani High School, knowing full well there is no post, purely to frustrate him. The arbitration award did not state he was to be appointed for only one day. He was working indefinitely after his fixed contracts had not been renewed, and accordingly the Commissioner at the previous arbitration found in his favour, that he had to be reinstated with backpay.
50. Then, he was summarily terminated again right after his appointment, is unfair and cruel. They hastened to get rid of him before he could get qualified, which is why he refused to accept the termination letter.
51. The Applicant proceeded to explain the sequence of events when the school Dlangani High School refused to accept him as a staff member. He explained how the school principal and an SGB member explained to him that the school had not been granted a new post to place him in. by the Respondent, and he could not replace anyone who was already in posts there because they were all correctly skilled and qualified and experienced, to fit their posts.
52. Upon the Applicant thereafter escalating the situation to the Respondent’s senior management, there was an apparent argument between senior officials of the Department of Education over whether the Applicant could or should be appointed permanently, in terms of the arbitration award, conversation which the Applicant recorded with his cellphone.
53. Mr Mpembe objected to the Applicant testifying about a conversation of which the participants were not called to testify to the context and contents of their conversation, to which it was submitted that although the conversation was secretly recorded by the Applicant, and the recording had not been formally admitted into evidence in this arbitration, the Applicant wishes to refer to the contents of the conversation in his testimony. I cautioned the Applicant that the fact that this conversation had not been formally and correctly admitted into evidence (recording admitted and the participants called to testify), its influence on my decision is compromised, as it is considered hearsay evidence.
54. The Applicant continued, explaining that between May 2019 and November 2019 the reinstatement ordered by the award to be effected within 7 days was not honoured and complied with. The Applicant was persistently frustrated by being sent from pillar to post, and the Applicant had to eventually have the award enforced by the CCMA in terms of section 143 of the Labour Relations Act, to compel the Respondent to comply with the award to reinstate.
55. Only upon enforcement, after 7 months instead of within 7 days, the Applicant was reinstated, but only for one day, and then again terminated the very next day.
56. After being refused at Dlangani High School, the Applicant was never called on to assume duties at any other school. He waited for another post to be created, but it was never done by the Respondent, and he continued to report to the Circuit Office.
57. DURING CROSS-QUESTIONING Mr Mpembe asked the Applicant about the statutory requirements and experience necessary for appointment of an educator, implying that the Applicant does not meet the requirements, to justify the dismissal. He further had Mr Mbeje read various paragraphs in this regard into evidence, to illustrate that the legislation requires these requirements met for permanent appointment as an educator.
58. To this end, the Applicant retorted that he had completed all his exams, and although he did not yet receive his formal confirmation of qualification as yet at that time, he had already been working since 2008 for the very same Respondent, as an educator, prior to his first termination in 2017.
59. The Applicant explained that the statutory requirements as Mr Mpembe pointed it out in the evidence is relevant to newly appointed educators, which is different, as he (the Applicant) had not been newly appointed, but rather was reinstated in terms of an arbitration award into a position that the Respondent had been happily paid him to fill for 10 years, without any issues.
60. The Applicant pointed out that in terms of the Letter of Appointment from the very same Respondent, the appointment was acceptable, understandably so because the Applicant had indeed been employed by the Respondent for more than 10 years, in the past.
61. Mr Mpembe pointed out to the Applicant that his Letter of Appointment on page 1 of the Respondent’s bundle, at paragraph 3.1, states that the Respondent reserves the right to withdraw the appointment if it came to light that the Applicant either (3.1) does not meet the requirements for the post, or (3.2) that the appointment was procedurally flawed.
62. Mr Mbeje was asked whether he had ever been appointed permanently by the Respondent prior to November 2019, to which the Applicant replied that he was working on fixed terms annually from 2008 to 2015, whereafter his annual termed contract was never renewed, and he stayed on as a permanent staff member or years after his last fixed term expired.
63. Mr Mbeje pointed out to the Applicant that he had only received fixed term contracts, year after year. He had not been given an indefinite contract, hence the Respondent was not obligated to reinstate him permanently in terms of the May 2019 arbitration award.
64. To this, the Applicant pointed out that he was working without a fixed term contract from 2015, therefore he ‘assumed’ he was indefinitely employed. Mr Mpembe reiterated the word ‘assumed’, stating that assumption is not ‘confirmation’.
65. Mr Mpembe directed the Applicant to the SGB letter in evidence stating there was no position available for an unqualified educator. To this, the Applicant reminded Mr Mpembe that it was the Respondent who placed him at that specific school, knowing his skill set and qualifications after 10 years tenure, and that it had been the Respondent who neglected, or purposefully failed to, create a position at that school for him. This was all the doing of the Respondent, not the Applicant.
66. Mr Mpembe retorted, replying that he agrees, it had not been the Applicant’s fault that the position had not been created by the Respondent, but he simply want to point out that it is the Applicant’s unqualified state that caused the problem.
67. To this, Mr Khomo intervened, pointing out the alternate use of un-qualified versus under-qualified, which I noted.
68. Mr Mpembe next referred the Applicant to page 10 of the Respondent’s bundle, where in paragraph 5 it states ‘you do not meet the requirements’.
69. To this the Applicant in turn referred Mr Mpembe to paragraph 2 on the same page, and said the answer lies in saying “the Appointment Letter is in line with the Arbitration Award of May 2019”, in terms of which the Respondent had been given a directive by the ELRC and then the s143 enforcement to reinstate the Applicant. That ‘not meeting requirements’ was dealt with at the previous arbitration in 2019, that the Respondent retaliated against the ELRC award and the Labour Court enforcement by making him (the Applicant) have to relocate, to move his home and family, to be appointed at Dlangani High School, just to be told there that the Respondent had failed to create a post for him there. Once again the Applicant pointed out that this too was the Respondent’s own doing which caused this situation, and the Applicant had no choice in the matter but to seek resolution to his dispute with the ELRC once again, now
70. Mr Mpembe then referred to a meeting on 1 August 2018 (detailed from page 27 of the Respondent’s bundle), which included the issue of the Applicant’s qualification not being applicable to education, as he has an accounting qualification but not a teaching one.
71. To this, Mr Mbeje pointed out that this was part of the reason he referred a dispute to the ELRC, and it was dealt with in the previous arbitration, to which arbitration award the Commissioner then dealt with the matter fully, finding in his (the Applicant’s) favour.
72. MR KHOMO IN RE-EXAMINATION asked Mr Mbeje to go to page 28 of the Respondent bundle, where the opening remarks of the abovementioned meeting is set out. He referred the Applicant to what the District Director then noted in a list “The chairperson clarified that all educators who have served for 9 years or more were terminated correctly. The Head Office said it will draft the reason of termination so that when they are finished with their qualification they could come back.” To this, the Applicant responded that he had long ago finished his qualification to go back to work, and hope to do so again.
73. IN CLOSING THE APPLICANT’S REPRESENTATIVE, Mr Khomo, stated that it is strange that the Assumption of Duty form, as seen on page 2 of the Respondent’s bundle, shows that Mr Mbeje’s newly created post had been already created 3 April 2019, yet Dlangani High School refused to accept him on the basis that the Respondent did not communicate with the school about his placement, and did not create a post there for him.
74. The Respondent had also incorrectly suggested that the Applicant had never before been appointed by the Respondent on an indefinite contract. Yet this was shown not to be true, as the Applicant had been appointed with fixed terms from 3 March 2008 until 2015 at which time he received his last fixed term appointment letter which end date had come and gone in 2015, yet the Applicant stayed on as a permanent staff member since that 2015 contract reached its end. He did not again receive an appointment letter with a start and end date after that.
75. Mr Mpembe made it out that the Applicant wrongly ‘assumed’ he was permanent. But to this the Respondent is the one who bears the onus to bring a contract with an end date after the period 2016, 2017, 2018 during which the Applicant continued to work and earned his salaries. The Respondent still failed to provide a Commissioner with a fixed term appointment letter with an end-date after 2015. Then, in 2018 the Respondent attempted to terminate the Applicant’s contract, but failed as the arbitration award in evidence shows the Commissioner also considered the Applicant to have been permanently employed.
76. THE RELIEF SOUGHT BY THE APPLICANT is that he wish to be reinstated at a school in the Dlangani or Ungungundlovu district, and/or close to Maritzburg, as soon as possible.
77. The Applicant also seeks the relief of retrospective reinstatement with salaries from 1 January 2020.
78. Regarding the Applicant’s wish for retrospective financial compensation, he submits he was underpaid for the retrospective 2018 to 2019 period in terms of the arbitration award, as he had obtained an additional qualification on 17 August 2017 which should have moved him from salary bracket REQV 10 to REQV 13 at that time already, but this was not applied in the arbitration award.
79. The Applicant also claims a rural allowance based on his movement from REQV 10 to REQV 13, and this being for years 2018, 2019, 2020 and current year (2021), amounts to ± R2 200,00 x 48 months = R105 600,00.
80. The Applicant further submits a schedule in his written closing arguments, set out the amounts he claims for the period 2018 to 2019.
ANALYSIS OF EVIDENCE AND ARGUMENT
81. At this stage I would like to point out that I have carefully considered all the evidence submitted by the parties. However, I will only deal with the evidence that I found to be particularly relevant and pivotal in making my decision regarding the fairness of the Applicant’s dismissal.
82. I will start by addressing the contention that the Respondent wishes me not to find the Applicant was ‘dismissed’, but rather that his contract was terminated for reasons of un/under-qualification.
83. In terms of Department of Agriculture, Forestry and Fisheries v Teto and Others [2020] 10 BLLR 994 (LAC) the Applicant was permanently appointed by the Respondent, because the court held:
“If an employee is initially employed on a fixed-term contract and continues to work for the employer after the fixed-term contract ends, then the contract is deemed to be tacitly novated into that of permanent employment.”
84. I am in full agreement with the LAC, and the Applicant party in this matter, that the Respondent’s failure to renew a fixed term contract for many years deems the Applicant’s employment permanent. Prior to his first termination in 2017/2018, the Applicant was a permanent employee of the Respondent. Upon his reinstatement he was served with an indefinite employment agreement, which was fully and correctly completed and signed by all parties. No evidence to the contrary was lead under oath by the Respondent.
85. It is trite that an arbitration is a hearing de novo. The Applicant’s dismissal, albeit in dispute, the onus is therefore in terms of Section 192 of the LRA on the Respondent to prove that the dismissal of the Applicant was fair.
86. Late in 2019 the Respondent had, in terms of the arbitration award in evidence, and in terms of the signed Appointment Letter, employed the Applicant on the papers in a permanent position at Dlangani High School, from 1 November 2019.
87. Although this had been done on the papers, practical implementation of the post creation was somehow not effected. The school expressed having no need for the additional educator, one that is not yet fully qualified, and the Respondent had also not created a new position for the Applicant to fill. The SGB letter, in my view, raised the 2 points in contention at that time:
87.1. that the Applicant was not qualified to replace another already-qualified educator, and
87.2. secondly that, if the Applicant was not meant to replace another educator, why had a position
not been newly created for him to fill?
88. I believe this realistically created a situation where the Respondent was faced with having to pay a monthly salary to the Applicant, but did not have a position for him, which posed a problem, understandably. However, when the Respondent was faced with this situation, where it could choose between either going ahead and creating an/other post for the Applicant, it opted to rather terminate the Applicant’s employment, for reasons of the Applicant being unqualified/under qualified. I am yet to be enlightened by the Respondent as to its reasoning behind this decision.
89. Mr Mpembe pointed out to the Applicant that his Letter of Appointment on page 1 of the Respondent’s bundle, at paragraph 3.1, states that the Respondent reserves the right to withdraw the appointment if it came to light that the Applicant either (3.1) does not meet the requirements for the post, or (3.2) that the appointment was procedurally flawed. I believe that the fact that an employer has the power to include such a term into an agreement does not exempt an employer from the duty of fairness. An employer is in every instance obliged to follow a fair process and to have substantively fair reasons to terminate an employee’s appointment, after hearing and considering the opposing arguments of the employee. No evidence of this was laid before me, in this arbitration.
90. The Respondent did concede that one of its officials had ‘erroneously’ served the Applicant with an indefinite appointment letter. Yet, notably the May 2019 arbitration award ordered the Applicant’s reinstatement to be permanent. I can only draw the conclusion that the Commissioner in that dispute was similarly of the view that the Applicant had been indefinitely employed by the Respondent.
91. The Respondent to date has also provided no explanation to me on why Dlangani High School did not welcome the Applicant onto its staff, seeing as the Respondent had evidently created the position already in April of 2019. No elucidation was provided why the Applicant had been obliged to relocate to resume services there, in order to be met with the proverbial closed door. Why was a position not created?
92. The Respondent during cross-questioning of the Applicant greatly focussed on the Applicant not having been qualified as yet to work as an educator, in terms of the statutory requirements for permanent appointment as an educator. Yet, neither Mr Mpembe nor any witness for the Respondent was forthcoming on why the Applicant had worked from 2015 to 2018 as an educator without his pending qualification being a problem. I understand that the Applicant possesses a scarce skill that is sought after, especially in rural areas, but this does not erode at the responsibility to be fair and consistent, both historical and contemporaneous consistency is of the utmost importance in fairness and social justice.
93. Mr Mpembe conceded to yet-to-be-qualified educators from time to time being appointed temporarily until they are replaced with fully-fledged qualified incumbents, which begs the question why the Applicant, if a new position had been created for him, could not continue in the Respondent’s employ.
94. So many questions to the Respondent remain unanswered, the probabilities seem constantly in favour of the Applicant’s version, and the Respondent in addition also bears the onus to prove that the dismissal was fair. Section 188 of the LRA states that a dismissal (that is not automatically unfair) is unfair if the employer (the Respondent) fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.
95. Mr Mpembe was unable to provide me any inclination towards finding a fair procedure was followed. The period from appointment to termination is barely 24 hours. Nor that there was any reason by virtue of the Applicant’s conduct or capacity why the Applicant’s appointment in terms of the May 2019 arbitration award should not have resulted in resumption of duties.
96. The Applicant’s capacity may well have been raised issue with by Mr Mpembe, by virtue of his pointing out the statutory requirements listed in evidence. But this bodes the question why the Applicant worked as an educator for more than 10 years for the Respondent, and had obtained an additional qualification in that 10 years, and was on the brink of receiving his full qualification, but could not be again appointed – reinstated in terms of an order of the court – either indefinitely, or temporarily pending being confirmed by formal qualification as an educator.
97. I am not convinced the Applicant’s appointment from 1 November 2019 was to be ‘temporary’ and that it was ‘erroneously’ ticked at that, because further down on the same page, next to where the start date is filled in, there is also a place for an end date of a fixed term contract, which was left blank. This indicates it was not a ‘mistaken selection’, but rather the appointment was permanent, and understood as such by all parties, but when the appointment had not been followed through on by the actual creation of a post, the Applicant became a proverbial thorn in the side of the Respondent.
98. Thereafter, to further exacerbate the situation, the Respondent chose to terminate the Applicant’s appointment and claim it had ‘made a mistake’ permanently appointing the Applicant, because he was in actual fact un-qualified or under-qualified, as the case may be.
99. Be this as it may, I note from the arbitration award in evidence, together with the evidence lead at this arbitration, that the Respondent had nothing to say to contradict the Applicant’s version that there had always been a custom that student educators in the process of obtaining their qualification were to remain employed until they receive their qualification, unless they were to be replaced by an already-qualified incumbent – which was not even the case here. The post the Applicant was supposed to have filled was supposed to have been created by the Respondent.
100. Seeing as the Applicant have been working as an educator in this capacity already for 10+ years, and the Respondent knew full well from the previous arbitration award that it was not at liberty to terminate his employment for being un(der)qualified, seeing as the Applicant was en route to being qualified, this Respondent seem to have chosen the exact same path as before in terminating the Applicant’s employ, for the much same wrong reason, two years later.
101. If the Respondent had failed to raise sufficient grounds for not having to reinstate the Applicant then, and I have in this dispute now similarly not been presented with any different, I am not in a position to be urged to decide differently from the Commissioner presiding over the arbitration then.
102. That being said, although the reinstatement should have been done in compliance with the arbitration award, which had been made an order of the Court during the section 143 enforcement process, I would be ultra vires were I to gainsay or build onto the previous Commissioner’s award, as it stands. The amounts conferred and terms of the award may not be varied by another Commissioner. The s143 enforcement is the platform and the vehicle via which the Applicant may pursue what was dealt with in that award.
103. Further to this, if the Respondent had any reason why the Applicant should not have been reinstated in terms of the May 2019 arbitration award, it had the right in terms of s145(2) of the LRA to have taken that award on review if there was a claim the arbitrator misconducted himself by not giving due consideration to the Respondent’s reasons or situation. Evidently, no such review was initiated by the Respondent, who is bound to honour that award in terms of the s143 enforcement.
104. Although uncalled for, if I give the Respondent the benefit of the doubt and assume it started to rectify the problem of unqualified educators in 2018, and that the previous arbitration award and this dispute hinders progress towards reformed compliance with the statutory requirements, I can only go as far as to show consideration to the Respondent’s rules and processes – that being that the Department of Education might be working towards having a workforce consisting only of fully qualified educators throughout – by not awarding the Applicant for the period prior to his qualification, on 15 May 2020.
105. I do suspect that the Respondent may have been faced with the contention that there simply may not have been a position to create in the district, for the Applicant. The SGB’s letter set out that every class has a teacher in front of it, in terms of their mandate. Had the Respondent raised this as an issue to me, I might have been more sympathetic, but the Respondent rather opted to ostensibly affront the Applicant by reiterating his lack of qualifications. Nevertheless, evidence about an agreement between the Union and the Respondent – that educators pending qualification would not be prejudiced – was lead and never disputed by the Respondent, hence it stands.
106. The Applicant had not yet, at the time of his termination on 31 December 2019, received his qualification. Although it is ardently unfair that he had been set up to be met with a closed door at Dlangani High School, and although this was fully the fault of the Respondent alone, I am excluding the period from 1 January 2020 to 15 May 2020 from the retrospective salaries awarded to the Applicant. I do believe this to be fair, because the Applicant was yet to receive his formal credentials, and although he did not have any fault in the matter of the post not having been created for him, he did not provide services, which is already at the cost the Respondent.
107. The Respondent strongly disputed that the Applicant should be on the salary notch the Applicant claims, that being R 23 336.50 per month from 1 November 2019 onwards. Yet, the Respondent submitted nothing further in this regard, nor did Mr Mpembe direct any statement in this regard to Mr Mbeje during cross-questioning. In the Applicant’s closing submission, the amount referred to during the arbitration process was increased to R 31,971.00 per month, which I am bound to accept as it was properly set out by the Applicant party and moreover not disputed by the Respondent in any way.
108. The Applicant in closing calculated his salaries for year 2020/2021 as follows:
“2020 and 2021 retrospective salary notch R280038 pa + R103614,06 (37% service benefit) = R383 652,06 pa i.e., R 31,971.00 per month”
I must reiterate that this account of the Applicant is accepted by default, as it was at no material time contradicted by any evidence lead by the Respondent party.
109. I will not award any amount for the period prior to the May 2019 ELRC award. The relief for this period falls solely within the jurisdiction of the arbitrating Commissioner who awarded the Applicant for the former period. I would be ultra vires to embark on awarding anything for that period prior to the Applicant’s 31 December 2010 dismissal.
110. I consider it prudent that the Respondent should pay the Applicant retrospectively only from 15 May 2021 – when he received his qualification – as this outstanding requirement was the only reason why he had been dismissed, according to the evidence.
111. The retrospective salaries I will award should also exclude the 3½ months the Applicant admitted to have already received salaries for standing in for another educator of the Respondent, during her maternity leave period. I consider it commendable that the Applicant volunteered this information, and it was also accepted by Mr Mpembe who did not contradict the submission in any way.
112. The rural allowance claimed was only raised in the opening statement and closing statement of the Applicant. No evidence was lead under oath to that extent – and accordingly the Respondent could not address this directly with the Applicant. Sufficient evidence was not lead to show me that a school the Applicant had been serving the Respondent at, in the period after the May 2019 ELRC award, was in a rural area. Testimony or evidence was not brought during the Applicant’s testimony for it to be confirmed or refuted by the Respondent during cross examination, hence I cannot award it. Simply stating a rural allowance of x-amount is due, for x-amount of months, is not sufficient to warrant it be awarded. It should have been addressed in evidence, where Mr Mpembe may or may not have disputed it is due.
AWARD
113. The dismissal of the Applicant was substantively and procedurally unfair.
114. The Respondent, the KwaZulu-Natal Department of Education, must re-employ the Applicant, Mr NW Mbeje, as a permanent/indefinite term fully qualified educator, from 1 February 2022, at a school in the Dlangani or Ungungundlovu district, and/or close to Maritzburg.
115. The Respondent must pay the following amount, in terms of retrospective backpay, as calculated below, to the Applicant:
20½ months (15 May 2020 to 1 February 2022) minus 3½ months temp appointment (see paragraph
111 of this award) = 17 months retrospective salaries awarded.
R 31,971.00 (see paragraph 108 of this award) X 17 months = R 543,507.00
116. Mr Ndumiso Welcome Mbeje (persal number 63498723) must receive from the Respondent, the KwaZulu-Natal Department of Education, the amount of R 543,507.00 (Five Hundred and Fourty Three Thousand, Five Hundred and Seven Rand alone) less all deductions in terms of legislation, by no later than 15 February 2022.
117. The Applicant must also be placed on the salary notch of REQV 13 with immediate effect.
Commissioner Sally-Jean Pabst
ELRC Arbitrator
Case No.: ELRC137-21/22KZN
Date of Award: 14 December 2021
In the ARBITRATION between:
SADTU obo MBEJE, Ndumiso Welcome
(Union / Applicant)
and
Education Department of KwaZulu-Natal
(Respondent)
Applicant: Email: SmartyNdu@webmail.co.za
Applicant’s representative: Mr Mathews Mvunga Khomo
Email: MathewsKhomo@gmail.com
Respondent’s representative: Mr EBD Mpembe
Email: Sicelo.Zimema@kzndoe.gov.za/MpembeBonginkosi@gmail.com
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995, as amended (the LRA), for the alleged unfair dismissal of the Applicant, Mr Ndumiso Welcome Mbeje, by the Respondent, the Education Department of KwaZulu-Natal.
2. Condonation for the late referral was granted in a ruling, and a Certificate of Outcome declaring the matter unresolved at conciliation is on the file. The pre-arbitration conference was concluded, and I received the minutes via the ELRC portal.
3. This arbitration was conducted virtually via Zoom and video-recorded with the consent of the parties, on 6 December 2021, and completed on 14 December 2021.
4. The Applicant was represented by Mr Mathews Khomo, an official from the South African Democratic Teachers Union (SADTU).
5. The Respondent, the Department of Education (DOE) KwaZulu-Natal, was represented by Mr Don Mpembe.
6. The parties both submitted bundles of evidence, and it was agreed between the parties that the documents are what they purport to be.
7. The parties were to submit written closing arguments by no later than midnight on the 14th of December 2021.
BACKGROUND
8. I will firstly deal with my ex tempore ruling on 14 December 2021, regarding the absence of the Respondent representative Mr Mpembe.
RULING ON REFUSING POSTPONEMENT OF ARBITRATION ON 14 DECEMBER 2021
9. In terms of section 138(1) of the Labour Relations Act 66 of 1995 an arbitrating Commissioner may use his/her discretion as to the manner in which he/she would like to conduct the arbitration in order to determine the dispute fairly and quickly, whilst dealing with the substantial merits with the minimum of legal formalities.
10. The arbitration for this matter had been postponed three times before, always on application by the Respondent, on the day the arbitration was scheduled.
10.1. On 24 August 2021 the KZN DOE’s representative, Mr Mpembe, was reported by a delegate of the DOE to be booked off sick until 31 August 2021, sick certificate received to substantiate.
10.2. On 29 October 2021 Mr Mpembe appeared at the arbitration, but reported he had been unable to prepare for the arbitration as he had been booked off sick again for the month of September and October, and had returned from sick leave only 2 days before. Mr Mpembe assured myself and the Applicant that he intends to corroborate this account with a doctor’s certificate showing he’d been off sick for 2 months until 2 days before the arbitration. Sick certificate was promised, but never submitted, by Mr Mpembe.
10.3. On 6 December 2021 the Mr Mpembe pointed out that it had been agreed in the pre-arbitration minutes that the Applicant party would bring its case first in the arbitration. He assured me that, in spite of some difficulty with witnesses, he was ready to proceed with the arbitration. However, after the Applicant had brought his case to completion, Mr Mpembe pointed out that his two witnesses, the school principal and the head of HRSS, are not available to testify at the time. Because it was already 16h00, I decided we hear the Respondent’s case on a subsequent date, and the parties agreed to avail themselves for this 8 days later, on the 14th of December 2021.
11. On 14 December 2021 it was reported by a delegate of the DOE, Mr Zibuse Hadebe, who appeared on Mr Mpembe’s behalf, that he had taken ill on the morning of the arbitration, and that he was so ill that he was unable to log on to Zoom.
12. I consequently ruled ex tempore to the parties that I will allow the Respondent 2 hours 30 minutes to brief another representative or submit evidence of Mr Mpembe’s illness in the form of a formal postponement application with a doctor’s certificate appended, to which Mr Zibuse Hadebe of the KZN DOE received my ruling and agreed to revert accordingly at 12 noon.
13. Thereafter the Respondent failed to make contact, nor did they submit any proof of illness by 12h30. To this, the Applicant opposed a further postponement by alerting me to the fact that Mr Mpembe had also failed to submit any doctor’s certificate after his 29 October 2021 postponement granted in good faith on the basis of his promise to submit proof of illness over the preceding 2 months.
14. I noted the arbitration hearing for this matter had indeed enjoyed 4 sittings: 3 of which did not continue to fruition due to postponements granted to the Respondent for respectively, illness, not being prepared, witnesses unavailable, and now again an unconfirmed illness.
15. My ruling was therefore against a fifth postponement to accommodate the Respondent.
16. Consequently, the arbitration hearing was concluded without the Respondent bringing witnesses or closing arguments.
17. The Respondent did contribute to the proceedings with an opening statement, and cross-questioning of the Applicant during testimony, however nothing from the Respondent was attested to, hence weight allocated to the evidence, accordingly.
ISSUE TO BE DECIDED
18. I have to determine on a balance of probabilities whether the Applicant was dismissed, and if so, whether such dismissal was fair on both substantive and procedural grounds.
19. Then, if the Applicant was procedurally and/or substantively unfairly dismissed, I must determine the appropriate remedy in terms of sections 193 and 194 of the Labour Relations Act 66 of 1995.
BACKGROUND TO THE MATTER
20. The Applicant is a Post Level 1 educator, by qualification. He was employed as an educator by the KwaZulu-Natal Department of Education from 2008, working in a rural area.
21. He was employed on fixed term contracts that were renewed annually for a few years, and since 2015 the last fixed term was not renewed, but he stayed on indefinitely as part of the permanent staff.
22. Then in 2019, after he had been working for some 4 years after his last annual contract had expired, his contract was terminated in terms of a Circular from the Respondent directing unqualified or under-qualified educators to be terminated.
23. He referred a dispute to the Council, and was reinstated in terms of an ELRC arbitration award dated 22 May 2019. This award is included in the Respondent’s bundle and was admitted as evidence. I gather from the award that the Commissioner found in favour of the Applicant primarily because the Respondent’s failure to renew his fixed contracts, together with keeping him on in its employ, deems the Applicant to be a permanent employee.
24. In compliance with abovementioned ELRC award, the Respondent appeared to have created a new position for the Applicant to resume work at Dlangani High School from 1 November 2019. However, contrary to appearances, when the Applicant reported for work on 1 November 2019 he was told by a school governing body (SGB) delegate that there had been no post created there for him to fill at the school. The Applicant conveyed this to the Respondent, and thereafter reported for service at the Circuit Office.
25. On 28 November 2019 the Applicant received a letter, giving him 1 month notice of termination of service, from the Respondent. This termination was effective 31 December 2019, and is the reason why this dispute was referred to the ELRC.
26. The following factors from the view of the Applicant are in dispute:
26.1. The Applicant was in terms of an ELRC award reinstated from 1 November 2019, on an indefinite basis.
26.2. This, the Applicant’s permanent appointment was then terminated with an unfair dismissal, effective 31 December 2019.
26.3. The dismissal was substantively unfair: parity principle – ‘contemporaneous’ inconsistency – the Respondent customarily appoint people to work as educators pending qualification, just to confirm these appointments upon full qualification by the educator at a later stage. This applies to the Applicant in that he had even already completed his qualification and exams, and received his certification – a formality only – some months later during a graduation ceremony in May 2020.
26.4. The dismissal was procedurally unfair: the Respondent served the Applicant with an indefinite appointment letter – the Assumption of Duty form signed off by the District Director (M.T. Ndlovu) on 21 November 2019. Then the very next day a Termination of Service letter, with signature of the same Director dated 28 November 2019, without any hearing or process in the interim, terminating because the Applicant is ‘unqualified’.
26.5. The dismissal was substantively unfair: parity principle – ‘historical’ inconsistency – the Applicant had been working for the Respondent on various contracts, also as an educator, prior to his arbitration award-reinstatement, suggesting historical inconsistency.
26.6. The Applicant should have had a salary adjustment after his arbitration award-reinstatement, from 1 November 2019 onwards.
26.7. The Applicant also was owed a ‘rural allowance’ from the Respondent.
27. The Applicant wishes to receive from this process:
27.1. to be permanently appointed at Dlangani High School or any other school in the district.
27.2. to be awarded retrospective salaries from 1 January 2020 onwards, excluding 3½ months he stood in for someone on maternity leave.
27.3. to have the appropriate salary adjustment retrospectively from after his arbitration award-reinstatement, from 1 November 2019 onwards.
27.4. to receive retrospectively the ‘rural allowance’ from the Respondent.
SURVEY OF EVIDENCE AND ARGUMENT
28. A summary of the evidence of the parties is set out below. I have considered all the evidence and argument, but because the LRA requires only brief reasons in terms of its section 138(7), I only refer to the evidence and argument which I regarded as pivotal in substantiating my findings and the determination of this dispute.
RESPONDENT’S EVIDENCE
29. The Respondent in opening stated that the Applicant’s contract was correctly terminated with 30 days’ notice because he did not have the necessary qualifications required in terms of the legislation and the PAM document in evidence in the Respondent’s bundle page 21 to 26 showing that the DOE does not permanently employ educators who are not fully qualified. This action was correct because the Applicant only became qualified on the 15th of May 2020, hence his contract was terminated fairly for this reason, on 31 December 2019.
30. Mr Mpembe pointed out that Mr Mbeje should have a recognised career qualification and must be in possession of a professional teacher’s education qualification as set out on page 22 of the bundle, but only obtained this qualification in May 2020.
31. He explained that, due to the shortage of fully qualified educators available to the DOE, from time to time educators who have pending qualifications were employed on a temporary basis, but is then terminated if a suitably fully-qualified incumbent becomes available to the DOE.
32. Similarly, in compliance with the award, Mr Mbeje was appointed from November 2019, but in the post appointment it was discovered that Mr Mbeje did not meet the necessary minimum requirements.
33. This was, as stated on page 1 of the Respondent’s bundle, brought to the attention of the Applicant already. On the appointment letter dated 30 October 2019, in paragraph 3.1 of page 1. Reserve the right to withdraw this appointment if you do not meet the requirements..
34. Page 13 of the Applicant bundle, Applicant submits 15 May 2020 proof of qualification, showing in November 2019 he did not have this qualification yet.
35. Procedurally, the Respondent complied with the requirements of the LRA, giving the Applicant 30 days’ notice of termination of his contract, in terms also of paragraph 3.1 of page 1 of the Respondent’s bundle.
36. Mr Mpembe further stated his witness will submit there was an error committed by the person who completed the Appointment Letter on page 2 of the Respondent’s bundle, the person erroneously selected ‘permanent’ instead of ‘temporary’ on Mr Mbeje’s Notice of Assumption of Duty.
37. Also in paragraph 3.2 on page 1 it warns Mr Mbeje that the appointment may also be withdrawn if it turns out to be a procedurally incorrect appointment.
APPLICANT’S EVIDENCE
38. The Applicant party submitted that the award clearly stated the Applicant was to be reinstated and correctly remunerated, but this was not the case.
39. The Respondent had full knowledge that the Applicant had been registered and studying towards obtaining his full teaching qualification and he was about to be confirmed with the full certification of his qualification to fill the post at the time when the Appointment Letter was signed in October 2019.
40. The Union and the Respondent has an agreement that the educators appointed that is yet-to-be-qualified, as the case was with Mr Mbeje, would not be terminated until their qualifications are completed. Contrary to this agreement, the Respondent ‘rushed’ to sign the termination letter the Applicant, before his qualification would be confirmed.
41. At the time, the Applicant had finished his last exam already and was just waiting for his certificate. The Applicant had kept the Respondent always informed of the progress with his studies throughout the year, as the agreement was that he would be employed in terms of this pending qualification. That was the norm with many educators that were in the process of studying while working, because there is a shortage of teachers, and they also gain practical experience.
42. From the ELRC award in evidence the entire paragraph 46 was read into evidence and aptly appropriated it to the current situation, in that the case law cited promotes reinstatement as appropriate remedy for the sake of security of employment, providing the trust relationship is intact. Paragraph 46 also states clearly that “… under-qualified educators (such as the Applicant had been at the time of his dismissals, both the first and the second dismissal) were given a grace period for them to attain required qualifications or to submit proof that they were duly registered for those qualifications. … I therefore find that the applicant could still be reinstated as he has started a process to get himself professionally qualified” This was certainly the case with the Applicant, as he kept the Respondent constantly informed, and had qualified shortly after his second dismissal.
43. The May 2019 award instructed the Applicant must be reinstated, but contrarily, the Respondent was not intending to comply. The Respondent ‘jumped the gun’ by terminating the Applicant – even before he assumed service – and before they had even created a post for him.
44. As seen in the letter from the School Governing Body (SGB) of Dlangani High School (page 2 and 3 of the Applicant’s bundle), the school simply did not have a position for the Applicant to fill. The “Department” (Respondent) did not create a post for the Applicant, and all existing posts were successfully and effectively filled. There was no need for an addition. This seems like the Respondent was setting the Applicant up for failure, to make a wrong move out of pure frustration. Maybe they wished he would abscond or resign.
45. However, the Applicant did the right thing by not staying away, by appropriately escalating the situation and reporting for duty at the Circuit Office while waiting for the Respondent to comply with the award by creating another post for the Applicant, in compliance with the award and its court enforcement.
46. However, in response to this, the Respondent instead of creating a post, opted to quickly terminate the Applicant’s appointment, with reasoning similar to the Applicant’s termination December 2017, as illustrated by paragraph 46 of the arbitration award of May 2019.
47. THE APPLICANT WAS PLACED UNDER OATH after which he testified that on 28 November 2019 he was surprised to be served with a termination letter the day after he received a letter of appointment on 27 November 2019.
48. Mr Mbeje stated he had just sent off all the requested documentation to the Human Resources Department of the Respondent – his ID document, matric certificate, national diploma in accounting, bank statement, and proof of final examination for his studies towards his full teaching qualification – for him to be placed on ‘the system’ again.
49. He resents the Respondent deliberately sending him to Dlangani High School, knowing full well there is no post, purely to frustrate him. The arbitration award did not state he was to be appointed for only one day. He was working indefinitely after his fixed contracts had not been renewed, and accordingly the Commissioner at the previous arbitration found in his favour, that he had to be reinstated with backpay.
50. Then, he was summarily terminated again right after his appointment, is unfair and cruel. They hastened to get rid of him before he could get qualified, which is why he refused to accept the termination letter.
51. The Applicant proceeded to explain the sequence of events when the school Dlangani High School refused to accept him as a staff member. He explained how the school principal and an SGB member explained to him that the school had not been granted a new post to place him in. by the Respondent, and he could not replace anyone who was already in posts there because they were all correctly skilled and qualified and experienced, to fit their posts.
52. Upon the Applicant thereafter escalating the situation to the Respondent’s senior management, there was an apparent argument between senior officials of the Department of Education over whether the Applicant could or should be appointed permanently, in terms of the arbitration award, conversation which the Applicant recorded with his cellphone.
53. Mr Mpembe objected to the Applicant testifying about a conversation of which the participants were not called to testify to the context and contents of their conversation, to which it was submitted that although the conversation was secretly recorded by the Applicant, and the recording had not been formally admitted into evidence in this arbitration, the Applicant wishes to refer to the contents of the conversation in his testimony. I cautioned the Applicant that the fact that this conversation had not been formally and correctly admitted into evidence (recording admitted and the participants called to testify), its influence on my decision is compromised, as it is considered hearsay evidence.
54. The Applicant continued, explaining that between May 2019 and November 2019 the reinstatement ordered by the award to be effected within 7 days was not honoured and complied with. The Applicant was persistently frustrated by being sent from pillar to post, and the Applicant had to eventually have the award enforced by the CCMA in terms of section 143 of the Labour Relations Act, to compel the Respondent to comply with the award to reinstate.
55. Only upon enforcement, after 7 months instead of within 7 days, the Applicant was reinstated, but only for one day, and then again terminated the very next day.
56. After being refused at Dlangani High School, the Applicant was never called on to assume duties at any other school. He waited for another post to be created, but it was never done by the Respondent, and he continued to report to the Circuit Office.
57. DURING CROSS-QUESTIONING Mr Mpembe asked the Applicant about the statutory requirements and experience necessary for appointment of an educator, implying that the Applicant does not meet the requirements, to justify the dismissal. He further had Mr Mbeje read various paragraphs in this regard into evidence, to illustrate that the legislation requires these requirements met for permanent appointment as an educator.
58. To this end, the Applicant retorted that he had completed all his exams, and although he did not yet receive his formal confirmation of qualification as yet at that time, he had already been working since 2008 for the very same Respondent, as an educator, prior to his first termination in 2017.
59. The Applicant explained that the statutory requirements as Mr Mpembe pointed it out in the evidence is relevant to newly appointed educators, which is different, as he (the Applicant) had not been newly appointed, but rather was reinstated in terms of an arbitration award into a position that the Respondent had been happily paid him to fill for 10 years, without any issues.
60. The Applicant pointed out that in terms of the Letter of Appointment from the very same Respondent, the appointment was acceptable, understandably so because the Applicant had indeed been employed by the Respondent for more than 10 years, in the past.
61. Mr Mpembe pointed out to the Applicant that his Letter of Appointment on page 1 of the Respondent’s bundle, at paragraph 3.1, states that the Respondent reserves the right to withdraw the appointment if it came to light that the Applicant either (3.1) does not meet the requirements for the post, or (3.2) that the appointment was procedurally flawed.
62. Mr Mbeje was asked whether he had ever been appointed permanently by the Respondent prior to November 2019, to which the Applicant replied that he was working on fixed terms annually from 2008 to 2015, whereafter his annual termed contract was never renewed, and he stayed on as a permanent staff member or years after his last fixed term expired.
63. Mr Mbeje pointed out to the Applicant that he had only received fixed term contracts, year after year. He had not been given an indefinite contract, hence the Respondent was not obligated to reinstate him permanently in terms of the May 2019 arbitration award.
64. To this, the Applicant pointed out that he was working without a fixed term contract from 2015, therefore he ‘assumed’ he was indefinitely employed. Mr Mpembe reiterated the word ‘assumed’, stating that assumption is not ‘confirmation’.
65. Mr Mpembe directed the Applicant to the SGB letter in evidence stating there was no position available for an unqualified educator. To this, the Applicant reminded Mr Mpembe that it was the Respondent who placed him at that specific school, knowing his skill set and qualifications after 10 years tenure, and that it had been the Respondent who neglected, or purposefully failed to, create a position at that school for him. This was all the doing of the Respondent, not the Applicant.
66. Mr Mpembe retorted, replying that he agrees, it had not been the Applicant’s fault that the position had not been created by the Respondent, but he simply want to point out that it is the Applicant’s unqualified state that caused the problem.
67. To this, Mr Khomo intervened, pointing out the alternate use of un-qualified versus under-qualified, which I noted.
68. Mr Mpembe next referred the Applicant to page 10 of the Respondent’s bundle, where in paragraph 5 it states ‘you do not meet the requirements’.
69. To this the Applicant in turn referred Mr Mpembe to paragraph 2 on the same page, and said the answer lies in saying “the Appointment Letter is in line with the Arbitration Award of May 2019”, in terms of which the Respondent had been given a directive by the ELRC and then the s143 enforcement to reinstate the Applicant. That ‘not meeting requirements’ was dealt with at the previous arbitration in 2019, that the Respondent retaliated against the ELRC award and the Labour Court enforcement by making him (the Applicant) have to relocate, to move his home and family, to be appointed at Dlangani High School, just to be told there that the Respondent had failed to create a post for him there. Once again the Applicant pointed out that this too was the Respondent’s own doing which caused this situation, and the Applicant had no choice in the matter but to seek resolution to his dispute with the ELRC once again, now
70. Mr Mpembe then referred to a meeting on 1 August 2018 (detailed from page 27 of the Respondent’s bundle), which included the issue of the Applicant’s qualification not being applicable to education, as he has an accounting qualification but not a teaching one.
71. To this, Mr Mbeje pointed out that this was part of the reason he referred a dispute to the ELRC, and it was dealt with in the previous arbitration, to which arbitration award the Commissioner then dealt with the matter fully, finding in his (the Applicant’s) favour.
72. MR KHOMO IN RE-EXAMINATION asked Mr Mbeje to go to page 28 of the Respondent bundle, where the opening remarks of the abovementioned meeting is set out. He referred the Applicant to what the District Director then noted in a list “The chairperson clarified that all educators who have served for 9 years or more were terminated correctly. The Head Office said it will draft the reason of termination so that when they are finished with their qualification they could come back.” To this, the Applicant responded that he had long ago finished his qualification to go back to work, and hope to do so again.
73. IN CLOSING THE APPLICANT’S REPRESENTATIVE, Mr Khomo, stated that it is strange that the Assumption of Duty form, as seen on page 2 of the Respondent’s bundle, shows that Mr Mbeje’s newly created post had been already created 3 April 2019, yet Dlangani High School refused to accept him on the basis that the Respondent did not communicate with the school about his placement, and did not create a post there for him.
74. The Respondent had also incorrectly suggested that the Applicant had never before been appointed by the Respondent on an indefinite contract. Yet this was shown not to be true, as the Applicant had been appointed with fixed terms from 3 March 2008 until 2015 at which time he received his last fixed term appointment letter which end date had come and gone in 2015, yet the Applicant stayed on as a permanent staff member since that 2015 contract reached its end. He did not again receive an appointment letter with a start and end date after that.
75. Mr Mpembe made it out that the Applicant wrongly ‘assumed’ he was permanent. But to this the Respondent is the one who bears the onus to bring a contract with an end date after the period 2016, 2017, 2018 during which the Applicant continued to work and earned his salaries. The Respondent still failed to provide a Commissioner with a fixed term appointment letter with an end-date after 2015. Then, in 2018 the Respondent attempted to terminate the Applicant’s contract, but failed as the arbitration award in evidence shows the Commissioner also considered the Applicant to have been permanently employed.
76. THE RELIEF SOUGHT BY THE APPLICANT is that he wish to be reinstated at a school in the Dlangani or Ungungundlovu district, and/or close to Maritzburg, as soon as possible.
77. The Applicant also seeks the relief of retrospective reinstatement with salaries from 1 January 2020.
78. Regarding the Applicant’s wish for retrospective financial compensation, he submits he was underpaid for the retrospective 2018 to 2019 period in terms of the arbitration award, as he had obtained an additional qualification on 17 August 2017 which should have moved him from salary bracket REQV 10 to REQV 13 at that time already, but this was not applied in the arbitration award.
79. The Applicant also claims a rural allowance based on his movement from REQV 10 to REQV 13, and this being for years 2018, 2019, 2020 and current year (2021), amounts to ± R2 200,00 x 48 months = R105 600,00.
80. The Applicant further submits a schedule in his written closing arguments, set out the amounts he claims for the period 2018 to 2019.
ANALYSIS OF EVIDENCE AND ARGUMENT
81. At this stage I would like to point out that I have carefully considered all the evidence submitted by the parties. However, I will only deal with the evidence that I found to be particularly relevant and pivotal in making my decision regarding the fairness of the Applicant’s dismissal.
82. I will start by addressing the contention that the Respondent wishes me not to find the Applicant was ‘dismissed’, but rather that his contract was terminated for reasons of un/under-qualification.
83. In terms of Department of Agriculture, Forestry and Fisheries v Teto and Others [2020] 10 BLLR 994 (LAC) the Applicant was permanently appointed by the Respondent, because the court held:
“If an employee is initially employed on a fixed-term contract and continues to work for the employer after the fixed-term contract ends, then the contract is deemed to be tacitly novated into that of permanent employment.”
84. I am in full agreement with the LAC, and the Applicant party in this matter, that the Respondent’s failure to renew a fixed term contract for many years deems the Applicant’s employment permanent. Prior to his first termination in 2017/2018, the Applicant was a permanent employee of the Respondent. Upon his reinstatement he was served with an indefinite employment agreement, which was fully and correctly completed and signed by all parties. No evidence to the contrary was lead under oath by the Respondent.
85. It is trite that an arbitration is a hearing de novo. The Applicant’s dismissal, albeit in dispute, the onus is therefore in terms of Section 192 of the LRA on the Respondent to prove that the dismissal of the Applicant was fair.
86. Late in 2019 the Respondent had, in terms of the arbitration award in evidence, and in terms of the signed Appointment Letter, employed the Applicant on the papers in a permanent position at Dlangani High School, from 1 November 2019.
87. Although this had been done on the papers, practical implementation of the post creation was somehow not effected. The school expressed having no need for the additional educator, one that is not yet fully qualified, and the Respondent had also not created a new position for the Applicant to fill. The SGB letter, in my view, raised the 2 points in contention at that time:
87.1. that the Applicant was not qualified to replace another already-qualified educator, and
87.2. secondly that, if the Applicant was not meant to replace another educator, why had a position
not been newly created for him to fill?
88. I believe this realistically created a situation where the Respondent was faced with having to pay a monthly salary to the Applicant, but did not have a position for him, which posed a problem, understandably. However, when the Respondent was faced with this situation, where it could choose between either going ahead and creating an/other post for the Applicant, it opted to rather terminate the Applicant’s employment, for reasons of the Applicant being unqualified/under qualified. I am yet to be enlightened by the Respondent as to its reasoning behind this decision.
89. Mr Mpembe pointed out to the Applicant that his Letter of Appointment on page 1 of the Respondent’s bundle, at paragraph 3.1, states that the Respondent reserves the right to withdraw the appointment if it came to light that the Applicant either (3.1) does not meet the requirements for the post, or (3.2) that the appointment was procedurally flawed. I believe that the fact that an employer has the power to include such a term into an agreement does not exempt an employer from the duty of fairness. An employer is in every instance obliged to follow a fair process and to have substantively fair reasons to terminate an employee’s appointment, after hearing and considering the opposing arguments of the employee. No evidence of this was laid before me, in this arbitration.
90. The Respondent did concede that one of its officials had ‘erroneously’ served the Applicant with an indefinite appointment letter. Yet, notably the May 2019 arbitration award ordered the Applicant’s reinstatement to be permanent. I can only draw the conclusion that the Commissioner in that dispute was similarly of the view that the Applicant had been indefinitely employed by the Respondent.
91. The Respondent to date has also provided no explanation to me on why Dlangani High School did not welcome the Applicant onto its staff, seeing as the Respondent had evidently created the position already in April of 2019. No elucidation was provided why the Applicant had been obliged to relocate to resume services there, in order to be met with the proverbial closed door. Why was a position not created?
92. The Respondent during cross-questioning of the Applicant greatly focussed on the Applicant not having been qualified as yet to work as an educator, in terms of the statutory requirements for permanent appointment as an educator. Yet, neither Mr Mpembe nor any witness for the Respondent was forthcoming on why the Applicant had worked from 2015 to 2018 as an educator without his pending qualification being a problem. I understand that the Applicant possesses a scarce skill that is sought after, especially in rural areas, but this does not erode at the responsibility to be fair and consistent, both historical and contemporaneous consistency is of the utmost importance in fairness and social justice.
93. Mr Mpembe conceded to yet-to-be-qualified educators from time to time being appointed temporarily until they are replaced with fully-fledged qualified incumbents, which begs the question why the Applicant, if a new position had been created for him, could not continue in the Respondent’s employ.
94. So many questions to the Respondent remain unanswered, the probabilities seem constantly in favour of the Applicant’s version, and the Respondent in addition also bears the onus to prove that the dismissal was fair. Section 188 of the LRA states that a dismissal (that is not automatically unfair) is unfair if the employer (the Respondent) fails to prove that the reason for dismissal was for a fair reason relating to the employee’s conduct and was affected in accordance with a fair procedure. This must be decided on a balance of probabilities.
95. Mr Mpembe was unable to provide me any inclination towards finding a fair procedure was followed. The period from appointment to termination is barely 24 hours. Nor that there was any reason by virtue of the Applicant’s conduct or capacity why the Applicant’s appointment in terms of the May 2019 arbitration award should not have resulted in resumption of duties.
96. The Applicant’s capacity may well have been raised issue with by Mr Mpembe, by virtue of his pointing out the statutory requirements listed in evidence. But this bodes the question why the Applicant worked as an educator for more than 10 years for the Respondent, and had obtained an additional qualification in that 10 years, and was on the brink of receiving his full qualification, but could not be again appointed – reinstated in terms of an order of the court – either indefinitely, or temporarily pending being confirmed by formal qualification as an educator.
97. I am not convinced the Applicant’s appointment from 1 November 2019 was to be ‘temporary’ and that it was ‘erroneously’ ticked at that, because further down on the same page, next to where the start date is filled in, there is also a place for an end date of a fixed term contract, which was left blank. This indicates it was not a ‘mistaken selection’, but rather the appointment was permanent, and understood as such by all parties, but when the appointment had not been followed through on by the actual creation of a post, the Applicant became a proverbial thorn in the side of the Respondent.
98. Thereafter, to further exacerbate the situation, the Respondent chose to terminate the Applicant’s appointment and claim it had ‘made a mistake’ permanently appointing the Applicant, because he was in actual fact un-qualified or under-qualified, as the case may be.
99. Be this as it may, I note from the arbitration award in evidence, together with the evidence lead at this arbitration, that the Respondent had nothing to say to contradict the Applicant’s version that there had always been a custom that student educators in the process of obtaining their qualification were to remain employed until they receive their qualification, unless they were to be replaced by an already-qualified incumbent – which was not even the case here. The post the Applicant was supposed to have filled was supposed to have been created by the Respondent.
100. Seeing as the Applicant have been working as an educator in this capacity already for 10+ years, and the Respondent knew full well from the previous arbitration award that it was not at liberty to terminate his employment for being un(der)qualified, seeing as the Applicant was en route to being qualified, this Respondent seem to have chosen the exact same path as before in terminating the Applicant’s employ, for the much same wrong reason, two years later.
101. If the Respondent had failed to raise sufficient grounds for not having to reinstate the Applicant then, and I have in this dispute now similarly not been presented with any different, I am not in a position to be urged to decide differently from the Commissioner presiding over the arbitration then.
102. That being said, although the reinstatement should have been done in compliance with the arbitration award, which had been made an order of the Court during the section 143 enforcement process, I would be ultra vires were I to gainsay or build onto the previous Commissioner’s award, as it stands. The amounts conferred and terms of the award may not be varied by another Commissioner. The s143 enforcement is the platform and the vehicle via which the Applicant may pursue what was dealt with in that award.
103. Further to this, if the Respondent had any reason why the Applicant should not have been reinstated in terms of the May 2019 arbitration award, it had the right in terms of s145(2) of the LRA to have taken that award on review if there was a claim the arbitrator misconducted himself by not giving due consideration to the Respondent’s reasons or situation. Evidently, no such review was initiated by the Respondent, who is bound to honour that award in terms of the s143 enforcement.
104. Although uncalled for, if I give the Respondent the benefit of the doubt and assume it started to rectify the problem of unqualified educators in 2018, and that the previous arbitration award and this dispute hinders progress towards reformed compliance with the statutory requirements, I can only go as far as to show consideration to the Respondent’s rules and processes – that being that the Department of Education might be working towards having a workforce consisting only of fully qualified educators throughout – by not awarding the Applicant for the period prior to his qualification, on 15 May 2020.
105. I do suspect that the Respondent may have been faced with the contention that there simply may not have been a position to create in the district, for the Applicant. The SGB’s letter set out that every class has a teacher in front of it, in terms of their mandate. Had the Respondent raised this as an issue to me, I might have been more sympathetic, but the Respondent rather opted to ostensibly affront the Applicant by reiterating his lack of qualifications. Nevertheless, evidence about an agreement between the Union and the Respondent – that educators pending qualification would not be prejudiced – was lead and never disputed by the Respondent, hence it stands.
106. The Applicant had not yet, at the time of his termination on 31 December 2019, received his qualification. Although it is ardently unfair that he had been set up to be met with a closed door at Dlangani High School, and although this was fully the fault of the Respondent alone, I am excluding the period from 1 January 2020 to 15 May 2020 from the retrospective salaries awarded to the Applicant. I do believe this to be fair, because the Applicant was yet to receive his formal credentials, and although he did not have any fault in the matter of the post not having been created for him, he did not provide services, which is already at the cost the Respondent.
107. The Respondent strongly disputed that the Applicant should be on the salary notch the Applicant claims, that being R 23 336.50 per month from 1 November 2019 onwards. Yet, the Respondent submitted nothing further in this regard, nor did Mr Mpembe direct any statement in this regard to Mr Mbeje during cross-questioning. In the Applicant’s closing submission, the amount referred to during the arbitration process was increased to R 31,971.00 per month, which I am bound to accept as it was properly set out by the Applicant party and moreover not disputed by the Respondent in any way.
108. The Applicant in closing calculated his salaries for year 2020/2021 as follows:
“2020 and 2021 retrospective salary notch R280038 pa + R103614,06 (37% service benefit) = R383 652,06 pa i.e., R 31,971.00 per month”
I must reiterate that this account of the Applicant is accepted by default, as it was at no material time contradicted by any evidence lead by the Respondent party.
109. I will not award any amount for the period prior to the May 2019 ELRC award. The relief for this period falls solely within the jurisdiction of the arbitrating Commissioner who awarded the Applicant for the former period. I would be ultra vires to embark on awarding anything for that period prior to the Applicant’s 31 December 2010 dismissal.
110. I consider it prudent that the Respondent should pay the Applicant retrospectively only from 15 May 2021 – when he received his qualification – as this outstanding requirement was the only reason why he had been dismissed, according to the evidence.
111. The retrospective salaries I will award should also exclude the 3½ months the Applicant admitted to have already received salaries for standing in for another educator of the Respondent, during her maternity leave period. I consider it commendable that the Applicant volunteered this information, and it was also accepted by Mr Mpembe who did not contradict the submission in any way.
112. The rural allowance claimed was only raised in the opening statement and closing statement of the Applicant. No evidence was lead under oath to that extent – and accordingly the Respondent could not address this directly with the Applicant. Sufficient evidence was not lead to show me that a school the Applicant had been serving the Respondent at, in the period after the May 2019 ELRC award, was in a rural area. Testimony or evidence was not brought during the Applicant’s testimony for it to be confirmed or refuted by the Respondent during cross examination, hence I cannot award it. Simply stating a rural allowance of x-amount is due, for x-amount of months, is not sufficient to warrant it be awarded. It should have been addressed in evidence, where Mr Mpembe may or may not have disputed it is due.
AWARD
113. The dismissal of the Applicant was substantively and procedurally unfair.
114. The Respondent, the KwaZulu-Natal Department of Education, must re-employ the Applicant, Mr NW Mbeje, as a permanent/indefinite term fully qualified educator, from 1 February 2022, at a school in the Dlangani or Ungungundlovu district, and/or close to Maritzburg.
115. The Respondent must pay the following amount, in terms of retrospective backpay, as calculated below, to the Applicant:
20½ months (15 May 2020 to 1 February 2022) minus 3½ months temp appointment (see paragraph
111 of this award) = 17 months retrospective salaries awarded.
R 31,971.00 (see paragraph 108 of this award) X 17 months = R 543,507.00
116. Mr Ndumiso Welcome Mbeje (persal number 63498723) must receive from the Respondent, the KwaZulu-Natal Department of Education, the amount of R 543,507.00 (Five Hundred and Fourty Three Thousand, Five Hundred and Seven Rand alone) less all deductions in terms of legislation, by no later than 15 February 2022.
117. The Applicant must also be placed on the salary notch of REQV 13 with immediate effect.
Commissioner Sally-Jean Pabst
ELRC Arbitrator