ELRC516-21/22KZN
Text
ELRC516-21/22KZN
Award Date:
12 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 08 March 2022, 05 APRIL 2022 & 03 MAY 2022
Case Number: ELRC516-21/22KZN
Arbitrator: Moraka Abel Makgaa
Date: 12 May 2022
In the matter between: -
Mbhele Nokufa Mavis Applicant
And
Education Department of KwaZulu-Natal Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 08 March 2022, 05 April 2022 and 03 May 2022. The employee was present, and represented herself. The Respondent was represented by Mr Samkelo Ngcobo: Employee Relations Officer of the Respondent.
2 The Respondent submitted a bundle of documents which was marked as Annexure R, made up of 13 pages. The applicant did not submit any documents. The parties submitted signed pre-arbitration minutes.
3 The proceedings were digitally recorded and conducted in English. Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
4 I am required to determine whether the dismissal of the applicant was both procedurally and substantively fair. Should I find that the dismissal was unfair, I am required to determine the appropriate remedy.
INTRODUCTION AND BACKGROUND
5 The matter was initially set down for arbitration on 08 March 2022, and it was postponed to 05 April 2022 per agreement of the parties. It was, however, agreed that the parties could revert to the pre-arbitration meeting. The pre-arbitration minutes were compiled and signed by the parties at a later date. The following were agreed to be the common cause issues:
5.1 The Applicant once worked at Sicelukukhanya Secondary School under the Kwazulu-Natal Education Department. She resigned from the Department at the end of July 2016. She worked at Sicelukukhanya Secondary School from 15 February 2021 until her services were terminated on 26 May 2021. Her assumption of duty forms were never submitted to the Circuit and District Offices in respect of the month of February 2021.
5.2 On 04 March 2021 the Applicant together with other three (3) candidates were interviewed to fill two promotional posts on temporary basis. The two posts were downgraded to PL1 posts. The applicant got position one (1) and was recommended for appointment against a Departmental Head post, teaching Isizulu and History, whereas Ms Dladla who got position two was recommended for appointment against the Deputy principalship post, teaching Geography and English.
5.3 On 05 March 2021 the applicant and Ms Dladla were introduced to the staff as the successful candidates. The Applicant was never paid any salaries until termination of her services on 26 March 2021. Ms Dladla was the only one who was paid her salaries at the end of April 2021 for the months of March and April 2021.
6 The main issues in dispute were whether the applicant was the employee of the respondent, and whether or not she was dismissed. The existence of the dismissal was as such in dispute.
7 05 April 2022 the applicant testified and closed her case. The respondent called one witness and thereafter made an application for postponement of the proceedings due to water challenges at the premises of the respondent. The matter was postponed to 03/05/2022 per agreement of the parties.
PRELIMINARY ISSUES
8 At the beginning of the proceedings, on 05 April 2022 Mr Ngcobo made an application for the proceedings to be discontinued on the basis that his colleague, Mr Ntshangase, informed him that this matter was arbitrated on 09/03/2022, and that the arbitration award was pending. The applicant disputed this assertion contending that the dispute was arbitrated on 09 March 2022 involved non-payment of salary, under case number ELRC527-21/22KZN, and not an alleged unfair dismissal.
9 I made an ex tempore Ruling refusing the respondent’s application for discontinuation of the proceedings on the basis that the respondent’s objection was not based on a true jurisdictional question.
10 At the end of the proceedings on 03 May 2022, Mr Ngcobo informed me that the arbitration award in case ELRC527-21/22KZN has been issued in favour of the respondent. He apparently sought to suggest that it may no longer be necessary for me to write an arbitration award since the matter, in his understanding, has been settled.
11 I have had the opportunity of reading the arbitration award tendered by my colleague, commissioner Marlon Plaatjies. I decided to proceed writing this arbitration award, firstly, because I am of the view that the respondent’s case in the matter before me breaks down both at the level of fact and law. Secondly, I do not agree with the approach and findings of my colleague, commissioner Plaatjies.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
12 The applicant’s testimony can be summarized as follows. She was employed by the principal of Sicelukukhanya Secondary School, Mrs Mbatha on 15 February 2021. The principal informed her that she got a phone call from the Department on 03 March 2021, authorising the school to conduct interviews for the posts of Departmental Head and Deputy Principal, which were downgraded to post level 1 posts.
13 Five candidates were shortlisted and called to the interviews on 04 March 2021 but the fifth candidate did not turn up for the interview. After the interviews she got a phone call informing her that she got position 1 and that Ms Dladla got position 2. They were called to come and complete employment forms, which they did. The principal said that the completed employment forms must be submitted to the Department the following day. They were told to come to work on 05 March 2021, which they did. After assembly, a staff meeting was called where they were introduced as the successful candidates. They were welcomed as part of the staff of Sicelukukhanya Secondary School. They signed the attendance register, given the duty load and started teaching.
14 During the months of March 2021 and April 2021, the principal asked her and Ms Dladla as to whether they got their salaries, and they informed her that they have not been paid. When schools reopened on 03 May 2021, Ms Dladla told the principal, in her presence, that she received her salaries for March 2021 and April 2021.The principal promised to phone both the District and Circuit Offices to find out why the applicant was not paid. On 10 May 2021 she was informed by the principal that the Department informed her that the applicant’s documents were submitted to the HOD, Mr Nzama, for approval. That was the reason why the applicant had not been paid.
15 On Wednesday, 12 May 2021, she was called to the principal’s Office, where she found the principal together with the Deputy principal and HODs, viz Mr Mkhwanazi (Deputy Principal), Mr Vilakazi (Departmental Head for Languages), Ms Ngubane (Science Department), Mr Mtshali (Commerce Department) and Ms Mkhize (History Department). The principal said that she received a phone call from the Department wherein she was directed to write a recommendation letter about why she wanted to appoint the applicant. The principal showed them the recommendation letter which she once submitted and said that she will resend the motivation letter to the Department.
16 On 13 May 2021 she was phoned by a certain lady who introduced herself as Ms Chaule from the District Office. Ms Chaule was enquiring as to whether she had received her salaries. She told her that she has never been paid. Ms Chaule told her that she will get all her salaries after the HOD’s approval. On 14 May 2021 the principal called her to her Office and offered to loan her R5 000.00 on condition that she must pay back the loaned money upon receipt of her salaries. The principal indeed transferred the R5 000.00 to her bank account.
17 On 26 May 2021 she was called to the principal’s Office where she found the Principal, Deputy principal and the Departmental Heads. The principal said that she got a call from the District Office directing that the applicant must stop working immediately. The principal promised that she will make follow-ups about payment of her salaries for all the months for which she had worked and to update her. She was later phoned by the principal who said the Department was not prepared to pay her.
18 She further testified that she was paying R1 200.00 per month for transport. She was being given money for transport by other members of the staff. She was as such owing a lot of people who were borrowing her money and does not know how she was going to pay them.
19 She believes that she was unfairly dismissed in the sense that she was not given notice for termination of her services. She wanted to be reinstated at Sicelukukhanya Secondary School or at any other school.
20 Under cross examination, she testified that she resigned from the Department as an educator on 31 July 2016 due to ill-health. What she knows about reappointment of a resignee is that the principal must submit a motivation letter. She started teaching at the school on 15 February 2021, but the interviews were conducted on 04 March 2021. The principal did not give her an appointment letter, and she was told that it was because she was appointed on a temporary basis. Even Ms Dladla did not get an appointment letter. They just filled the assumption of duty forms and proceeded with teaching.
21 She did not know that the HOD was the only person who could approve the appointment of a person who had previously resigned. She was only told about prior approval by Mrs Chaule, which was after three months of her appointment. Her understanding is that an appointment letter is only given when one is appointed on a permanent basis. Even when she was appointed for the first time as a teacher in 2006, she did not get an appointment letter. She only got an appointment letter after completing 12 months, when she was appointed permanently at school.
22 She disagreed with the version that the principal’s evidence will prove that she was never appointed by the department but volunteered her services. Her explanation was that if that was the case, the principal would have not always asked her as to whether she had been paid. Had the principal told her that she was volunteering, she was not going to leave her job at Ingceboyesizwe School where she was earning R2 000.0 per month. She would have not agreed to go to a School where she would be expected to pay R1 200.00 per month for transport.
23 She also denied the allegation that after the interviews the principal told her that she must not start working as she was expected to wait for the HOD’s approval before she could start working. She insisted that the principal did not tell her that her situation was different from that of Ms Dladla because Ms Dladla never resigned from the Public Service before.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
24 Zodwa Mbatha’s evidence can be summarized as follows. She is the principal Sicelukukhanya Secondary School in Uthukela District. What she knows about Ms Mbhele is that she was a PL1 educator at Sicelukukhanya Secondary School since 2006 until her resignation in 2016 on account of ill-health.
25 In 2021 she received the 2021 PPN certificate indicating that the school was allocated additional three PL1 educator posts, and two promotional posts, viz the second Deputy Principal post and 1 Departmental Head post. The school was given a surplus educator to occupy one of the three PL1 posts. She received the second PL1 surplus educator. She received the second surplus teacher towards the end of term 1, and ultimately got the third surplus teacher. Her supervisor advised her to downgrade the two promotional posts to PL1 posts and have them filled through substitute educators so that the learners were not left without teachers.
26 She informed the SMT, SGB and the staff about the new PPN and that the school has been allocated additional five posts. She requested the staff, as she normally does, to head hunt or poach substitute educators who could be recruited to occupy the two downgraded posts. The Deputy Principalship post was allocated English and Geography whereas the Departmental Head post was allocated History and Isizulu.
27 The SGB mandated her as the principal to go on with the recruitment processes on the basis that the posts to be filled were temporary posts. They recruitment process was done quickly because learners were left without educators. On 14 February 2021 the Admin Clerk gave her Ms Mbhele’s CV and copies of qualifications. The following day she saw Ms Mbhele seated at the foyer. She called all four members of the SMT and invited Ms Mbhele and the Admin Clerk to the meeting. Ms Mbhele was informed about the existence of the two promotional posts and that they needed substitute educators.
28 Ms Mbhele also told her about the job she was having somewhere. She told Ms Mbhele that the problem is that she was a resignee but indicated that they were going to give it a try. She further informed Ms Mbhele that she was not the one employing educators, but she knows that the applicant was a hard worker and a good teacher. Ms Mbhele said that she was not going home as from that day and indicated that she would volunteer up until the post is advertised. She, because of the fact that learners were left without a teacher for some time, allowed Ms Mbhele to volunteer up until the post was advertised.
29 She testified that on 15 February 2021 she never said to Ms Mbhele that she could start going to class to teach. What she did was to allow Ms Mbhele to volunteer until the post was advertised. She couldn’t tell Ms Mbhele to go to class and start teaching because she knows the processes to be followed, which include being interviewed and fill the relevant forms before a teacher could start going to teach.
30 After the interviews, Ms Mbhele and Ms Dladla were phoned by the Admin Clerk, Ms Ngubane, who informed them that they were the successful candidates. Ms Dladla and Ms Mbhele were called to come complete the necessary forms because they wanted a teacher as learners were without a teacher. She explained to them as to what was it that was going to happen.
31 Ms Dladla was released, and they remained with Ms Mbhele where she explained to her that her status was different from that of Ms Dladla because she once resigned whereas Ms Dladla was a graduate from the University. She told Ms Mbhele that in her case they needed to get an approval from Dr Nzama because she was a resignee. Secondly, she did not have critical subjects. She further told her that the reason why they called her was because she was the only one from the CVs they were having who had Isizulu and History, and that the rest of the candidates did not have those subjects.
32 Ms Mbhele was told that her documents were to be submitted to the Department. Her response was that she had no problem and that she would wait. She did not force Ms Mbhele to go to class because she had already volunteered. The school could not issue Ms Mbhele with a notice of termination of her services because she was never issued with an appointment letter .
33 Under cross examination, she testified that she told Ms Mbhele that the relevant incumbent was going to be hired after interviews. Ms Mbhele said that she will not go home but was prepared to wait up until the interviews were conducted. Ms Mbhele volunteered from 15 February 2021 up until the interviews were conducted. She may have not uttered the word volunteering, but she knew that she will only be appointed after all the processes have been concluded.
34 After the interviews Ms Mbhele and Ms Dladla completed the employment contract forms. One of such forms was HRF01 form which is written “Request for the appointment of temporary/substitute educator”. By signing this form Ms Mbhele was aware that she was being recommended for appointment as opposed to being appointed. She wrote a motivational letter which was attached to the request for the HOD to approve the appointment of Ms Mbhele. She thereafter wrote other motivational letters which were shown to both the applicant and other members of the SMT.
35 She denied that the Department had never called her saying that Ms Mbhele must stop reporting for duty. She was ultimately informed by Mr Mthembu in HRM at the District that the request for the appointment of Mbhele was not approved. The reasons she got from Mr Mthembu that it was because Ms Mbhele was a resignee and that she did not have critical subjects.
36 Sibusiso Eric Mthembu’s evidence can be summarized as follows. He is employed by the respondent as an Assistant Director, in HR section. He is based at Uthukela District. His duties and responsibilities include recruitment and appointments of educators and public service personnel, as well as making submissions after appointments have been done before approval of the HOD.
37 He testified that HRM Circular No.13 of 2018 is concerned with temporary appointment of a new person, someone who has never been in the system before. He specifically testified about paragraphs 2 and 6 regarding proforma forms which must be completed by the school principal, Circuit Manager, HR Component at the District Office, and the District Director concerning the school’s request for the appointment of a substitute or temporary educator.
38 Upon receipt of the school’s request, HR component will forward the documents to the District Director for purposes of making a recommendation. The District Director will authorize the HR Component to facilitate the assumption of duty by the successful candidate, who must be given a formal offer of appointment. After authorisation by the District Director, the documents are forwarded to the Head of Office for final approval by the Head of Department.
39 HRM Circular No. 5 of 2017 regulates the recruitment and reappointment of educators who once resigned from the Department. According to the Circular a resignee will only be considered for reappointment after attempts to recruit an educator in the following categories have failed:
(i) Bursary holders; (ii) New job seekers, (iii) Surplus educators; and (iv) Displaced educators.
40 The persons and educators in the above categories must still meet curriculum needs of the school. There is a pool of these persons and educators from which the Department must identify those who meet curriculum needs of the school. A request for the reappointment of a resignee must be accompanied by a motivation which must, inter alia, include the following: (i) the subject specialization/s and the grade/s to be taught, (ii) attempts made to redeploy a surplus or displaced educator in filling the vacancy, and (iii) attempts made to get the services of a bursary holder or newly qualified educator for the vacancy. The motivation from the school must also be supported by the Circuit Manager.
41 Upon receipt of the motivation, the District HR will compile a submission for approval by the Head of Department so that teaching and learning is not compromised. Once an approval of the Head of Department is obtained the school is duly informed. It is then that the educator concerned can assume duty.
42 It is only the Head of Department who must approve the reappointment of a resignee, unlike in the case of recruitment of new educators who are allowed to assume duty after authorisation by the District Director. The District Director can authorise assumption of duty by the new educator for the benefit of the learners because of the fact that when the submission goes to Head Office it takes long to be approved. Once the District Director’s authorisation is received the District HR must issue a formal offer of appointment to the successful candidate.
43 He is the only one in the Department who is responsible for compiling submissions concerning reappointment of the resignees. He has never received anything in respect of an application for the reappointment of Ms Mbhele. He only learned after the arbitration hearing of 09 March 2022 that Ms Chaule received documents to appoint Ms Mbhele. Mrs Chaule discovered that Ms Mbhele did not qualify to be appointed because a submission had not been made to the Head of Department for approval of her reappointment. Mrs Chaule decided to send the documents back to the school.
44 Ms Mbhele cannot be regarded as an employee of the Department because she once resigned from the Department and has never been reappointed by the Department. If she was appointed there should be an appointment letter.
45 When asked, under cross examination, as to why during the arbitration in the other matter of the applicant, he testified that nothing was ever submitted to him about the reappointment of the applicant so that he could in turn make a submission for approval by the HOD, his explanation was that at that time he was not aware. After the hearing he went back to the Office to investigate the allegation and was informed that the school has indeed submitted documents about the reappointment of the applicant.
46 As to when did Mrs Chaule receive the documents about the reappointment of Ms Mbhele and as to when did she return them, he testified that what Mrs Chaule told him was that immediately after receipt of the documents she returned them to the school because they were not complying with HRM Circular No 5 of 2017.
47 He testified that HRM Circular 3 of 2018 must be read together with HRM Circular No 13 of 2018 because they refer to categories of temporary employees other than the resignees. A person in the position of Ms Mbhele may only be considered after people from the other categories have been considered and no one who meet the curriculum needs of the vacant post could be found.
48 As to why in the present case, it should not be concluded that no one from the preferred categories could be found to fill the post for which Ms Mbhele was recommended, and for that reason Ms Mbhele qualified to be reappointment on the basis of exceptional circumstances, his answer was that Ms Mbhele did not have scarce subjects. Secondly, he said that there was no approval of the HOD for Ms Mbhele’s reappointment. Thirdly, the Department had a pool of surplus educators who could teach History and Isizulu
49 In response to the issue of the best interests of the learners, he testified that it is not true that the Department did not have teachers who could teach History and Isizulu. If ever the school had a challenge of a teacher in the two subjects, the school would have made a submission to the District, which could have commenced with recruitment processes for the appointment of a surplus educator or displaced educator. In this case there was no submission made for the appointment of a teacher.
ANALYSIS OF EVIDENCE AND ARGUMENT
50 The applicant’s case, as I understand it, seems to be founded on the legal principles contemplated in item 2(1) of schedule 8 to the Labour Relations Act 66 of 1995, which provides that “ a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure...” The respondent on the other hand argues that there was no dismissal because of the non-existence of the employment relationship between the applicant and the respondent. That was the reason why the onus was on the applicant to establish the existence of the dismissal in terms of section 192 of the LRA. It effectively means that the first question to be determined is whether the applicant was an employee of the respondent for the purposes of the LRA, before considering the merits of the claim of unfair dismissal .
51 Section 213 of the LRA defines an “employee” as :
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of " employee".
52 In State Information Technology Agency (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others , the LAC, per Davis JA, at para 12 , said the following about the approach that may be adopted when determining whether or not a person is an employee of the employer:
“…when a court determines the question of an employment relationship, it must work with three primary criteria:
1. an employer’s right to supervision and control;
2. whether the employee forms an integral part of the organization with the employer;
3. the extent to which the employee is economically dependent upon the employer”.
53 I wish to start with ‘the extent to which the employee is economically dependent upon the employer’ criterion because my understanding is the respondent’s main defense is founded on a denial of the existence of such a dependency. This kind of a defense was at the heart of the church’s defense in the Universal Church of the Kingdom of God v Myeni Mxolisi Justice, Case No. DA 3/14 ( which was handed down on 28 July 2015). Just like the respondent in the present case, the Church ( as the alleged employer) denied the allegation made by Mr Myeni (whose services were terminated by the Church) that he was an employee of the Church within the contemplation of the LRA.
54 One of the obvious differences between the present case and the Myeni case, supra, is that there was no dispute about the existence of a signed agreement between the parties. They, had for instance, signed two documents titled ‘ Regulations for Pastors’ and ‘ Declaration of Voluntary Service’. Their dispute was ultimately determined by the Labour Appeal Court (“LAC”) on the basis of the terms the agreement they had entered into.
55 In casu, the respondent sought to suggest, first through the evidence of the principal and ultimately through that of Mr Mthembu, that the applicant had freely offered to teach at Sicelukukhanya Secondary School. The truth of the matter is that the applicant denied, vehemently, the allegation that she volunteered to teach at the school until an approval is obtained from the Head of Department (“HOD”). She said, both during examination-in-chief and under cross-examination, that “Ms Mbhele volunteered from 15 February 2021 up until the interviews were conducted”. In any event, the principal had ultimately conceded that the applicant never used the word ‘volunteering’.
56 I am also of the view that the assertion that the applicant volunteered her services is simply unmeritorious for a number of reasons. In the first instance, it does not make any sense, by stretch of any imagination, that the applicant could have decided to leave a job of being a screener for that of a volunteer, and join an institution where she was expected to incur transport-related expenses amounting to R1 200.00 per month.
57 There is no doubt that the applicant was better off with a wage of R2 000.00 per month, even if it may have been below the prescribed national minimum wage, than having to continue teaching learners under circumstances where she had to endure what was clearly an extended period of unprecedented suffering and humiliation.
58 Mr Mthembu’s contention that the applicant was not entitled to any remuneration could have not been based on a belief that the applicant had volunteered her services for the simple reason that his evidence is completely irrelevant to all the factual disputes that stand to be resolved in this matter. In fact, he had conceded under cross examination that he was unable to testify about what happened at the level of the school with regard to the applicant’s dispute. To the extent relevant to this aspect of the dispute, Mr Mthembu’s evidence sought to suggest that the fact that the applicant was never issued with an appointment letter was sufficient proof of the non-existence of an employment contract between the respondent and the applicant. This argument breaks down, firstly, at the level of fact, and secondly, at the level of law.
59 The facts of this case are that the applicant, just like Ms Dladla, was made to sign all the relevant employment contract forms that needed to be signed by any successful candidate. Both the applicant and the principal confirmed that both the applicant and Ms Dladla were called to come and sign the documents that needed to be signed by successful candidates, and that this was done on 04 March 2021, immediately after announcement of the results of the interviews. When the principal was testifying, I asked her whether it would not be possible for her to send copies of the documents signed by the applicant to both the applicant and the respondent’s representative, as well as I. The respondent’s representative raised an objection on the basis that discovery of such documents was not necessary because it was common cause between the parties that those documents have been signed by the applicant and submitted by the school principal.
60 I am of the view that what happened in this case was much more than informing a candidate that he or she was the successful candidate. By making the applicant to sign documents relating to her employment, a written offer of employment was effectively made to the applicant, which she accepted. This process had effectively concluded the creation of the employment contract between the applicant and the respondent. As if that was enough, the following day, on 05 March 2021, the applicant and Ms Dladla were introduced to whole staff as successful candidates, and from there onwards they continued rendering services for the work they were interviewed and hired for.
61 I am aware that the respondent sought to distinguish the situation of the applicant from that of Ms Dladla solely because Ms Dladla’s engagement constituted a first appointment and not a reappointment after break in service. Mr Mthembu’s evidence that a person in the position of Ms Dladla is required to assume duty following authorisation by the District Director and after being given a formal offer of appointment, and after receipt of the prescribed assumption of duty form from the school, is not supported by the objective facts in the present circumstances. There was no evidence suggesting that there was any stage where such an offer of appointment was made to Ms Dladla. In fact, the applicant and Ms Dladla are similarly situated for the purposes of determining the existence of the employment relationship with the respondent.
62 It is my finding that the applicant never volunteered her services at the school. It is also found that an employment contract was created between the applicant and the respondent. Strictly speaking, once this determination is made it is no longer necessary to answer the question whether the three criteria identified in the SITA case are present in the relationship between the applicant and the respondent, because such a reality is consequential. I have nonetheless decided to proceed with analysis of the three criteria in the event I could be wrong in this regard.
63 The applicant’s evidence that she was given a duty load, she was under the supervision and control of the Departmental Head, Ms Mkhize, and that she was signing the time book was never disputed. It also became clear that the applicant was indirectly under the supervision and control of the principal and the School Management Team (“SMT”), hence she would from time to time be called to a meeting with the SMT, mainly to discuss issues relating to her reappointment.
64 The fact that the applicant formed an integral part of the school, in particular, and broadly that of the Department, has its origin in the manner in which the applicant and Ms Dladla were welcomed and introduced to the entire staff on 05 March 2021. By leaving the job of the screener for a teaching post in the Department, which was clearly a better paying job, and remained in the job with the hope that she would ultimately get paid her salaries, is sufficient proof that she was economically dependent upon the respondent. By taking or accepting loans from her colleagues, including the school principal, and promising to service such debts once her arrear salaries have been paid is proof of both her economic dependency on the respondent and of being an integral part of the school.
65 I am satisfied that the three factors identified in the SITA case are present in the relationship which existed between the applicant and the respondent. The applicant is, consequently, declared to have been the employee of the respondent within the contemplation of the LRA.
66 Turning to the merits of the case, the respondent’s responses to both the procedural and substantive fairness challenges were founded on a belief that there was no employment relationship with the applicant. The respondent, in an attempt to support this main argument, made the following allegations:
66.1 The applicant’s reappointment could not be approved as a result of non-compliance with the provisions of HRM Circular No.5 of 2017.
66. 2 The applicant has never been issued with an appointment letter by the respondent.
66.3 The applicant’s reappointment was never approved by the HOD.
66.4 It was not necessary for the respondent to give the applicant a notice of termination of her services or to issue her with notice of termination of her employment because she was an employee of the respondent.
67 Starting with procedural fairness, according to the applicant’s undisputed evidence, she was simply called from the classroom to a meeting of the principal and the entire SMT. Upon arrival she was told that the principal had received feedback from the Department to the effect that the request for the applicant’s reappointment had not been approved on the basis that she is a resignee and that she did not have critical subjects. She was told stop reporting for duty forthwith, as per the instruction of Department. Even on the version of the witnesses of the respondent, the applicant was never given any notice of termination of her services.
68 The only situation that I am aware of where the respondent may not have been required to institute an enquiry or follow any due process is in respect of section 14 of the Employment of Educators Act 76 of 1998 (“EEA”), which provides as follows:
“14. Certain educators deemed to be discharged.—(1) An educator appointed in a permanent capacity who—
(a) is absent from work for a period exceeding 14 consecutive days without permission of the employer;
(b) while the educator is absent from work without permission of the employer, assumes employment in another position;
(c) while suspended from duty, resigns or without permission of the employer assumes employment in another position; or
(d) while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position, shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where—
(i) paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work; or
(ii) paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be”.
69 Section 14 of the EEA would have not been applicable to the circumstances of the applicant. In any event, that is not the case of the respondent. I wish to defer my finding on the question whether or not the applicant’s dismissal was procedurally fair, on the basis that this question is inextricably linked to the reasons for the applicant’s dismissal.
70 I am of the view that, from the list of the things which are said to be the requirements which were alleged not been met by the applicant and the activities which must have been performed in relation to a request for the reappointment of the applicant, the only requirement which should ordinarily be the headache of any resignee, including the applicant, is whether or not such a resignee is qualified to teach any of what the respondent regarded as scarce subjects. There is no doubt in my mind that it should always be the responsibility of the respondent’s own officials to ensure that only applicants who meet the requirements specified in the Department’s Circulars are shortlisted, interviewed and recommended for appointment. It should also be the responsibility of the respondent’s own officials to ensure that an approval for reappointment of a resignee is obtained, and that an appointment letter is issued to the successful candidate.
71 Assuming, for a moment, that there was a solid factual foundation for the allegations made as to why the applicant’s reappointment was bound to be disapproved, why should it had to take the respondent a period of almost three months, as correctly asked by the applicant, before it was ultimately decided that the applicant did not meet the requirements contemplated in HRM Circular No.5 of 2017? I do not think the applicant deserved to be blamed or punished for what appears to have been the state of chaos, confusion and inefficiencies of the highest of order.
72 The objective facts, in the present circumstances, suggest that the scarce subjects requirement was completely irrelevant for the simple reason that it had nothing to do with the curriculum requirements of the downgraded post at issue. The school was looking for a teacher who was qualified to teach History and Isizulu, and the applicant happened to be the only suitably qualified teacher in that regard.
73 The assertion that the school ought to have first given priority to educators declared in excess, displaced educators, bursary holders and newly qualified educators, as well as the allegation that there was a pool of surplus educators who were qualified to teach History and Isizulu had no factual basis. This was clearly an evidence of someone who had no knowledge of the correct facts of this case. To crown it all, Mr Mthembu was clearly not aware of the evidence tendered by the principal and in respect of these issues.
74 The principal’s evidence was that there were some delays in filling the three PL1 posts through matching and absorption of surplus educators. Regarding the two promotional posts her evidence was that she was ultimately advised by her supervisor to downgrade the two posts, after it became clear that the two posts could not be filled through the process of rationalization and redeployment. The selection processes for filling the downgraded posts had to be done with the greatest speed because learners had been without teachers for some time. This sense of urgency was clearly not only limited to the principal, but it also extended to the District Director if reference is to be to the provisions of HRM Circular No.13 of 2018, particularly paragraph 3 which reads as follows:
“ The District Director is also required to ensure that the processes of securing the educator and obtaining the necessary approval from the Head of Department are still finalized within five (5) days as stipulated in HRM Circular No.6 of 2018”.
75 I wish to give some greater details regarding the recruitment process which must be followed in the appointment of temporary and substitute educators in order to demonstrate that there was no merit in the reasons advanced as to why the applicant’s reappointment could not be approved or entertained. According to paragraph 1 of Circular 3 of 2018 the appointment of substitute educators and temporary educators against vacant promotional posts had to be made subject to prior approval by the Head of Department. This provision was apparently amended by paragraph 1 of Circular No 13 of 2018, which provides as follows:
“ … in order to fast-track the process, substitute and temporary educators may be allowed to assume duty after the recommendation of the District Director has been forwarded to the Head of Department for approval…”
76 To the extent relevant for the present purposes, paragraphs 1, 2(a) to ( c), 3, 4, 6 of Circular No.13 of 2018 are identical to paragraphs 2.1, 2.2 ( a) to ( c), 2.3 and 2.4 of Circular No. 3 of 2018. These provisions, as I understand them, outline a recruitment and selection process made up of` two phases. The first phase is concerned with a request for an approval to fill a vacant post on temporary basis. The process is kick-started by the School Principal who is required to complete Part A of Proforma 1 dealing with a request for the appointment of temporary/substitute educators. The School Principal is required to furnish documentary evidence substantiating reasons for the vacancy sought to be filled.
77 Upon receipt of the school’s submission, the Circuit Manager will either complete Part B of Proforma 1 if there is a need to proceed with the request or return the documents to the school in instances where there is no need to proceed with the request. The HR component at the District will, after verification of the reason for the vacancy, complete Part C, and also identify and record 5 candidates, from the data base of unemployed qualified educators, who meet the curriculum and other requirements of the vacancy. The completed Proforma 1 is, together with all supporting documents, then returned to the School Principal.
78 Upon receipt of the completed proforma 1, the Principal must commence, immediately, with the second phase of the recruitment process, which involves the processes of shortlisting, interviews and recommendation of the successful candidate(s). Upon completion of the selection process, the Principal must immediately complete Proforma 2 dealing with a recommendation for appointment of a temporary/substitute educator. A process similar to the one in Proforma 1 is followed until the District Office. The District Director makes his or her recommendation by completing Part D of Proforma 2, and also gives an authorization for assumption of duty by the successful candidate after such a candidate has accepted the formal offer of the appointment.
79 The procedures outlined in HRM Circulars Numbers 3 and 13 of 2018 are, inter alia, reflective of two important factors which are relevant to the present case. Firstly, the respondent’s officials, particularly the HR Component at the District Office, has the responsibility and the discretion to identify and record 5 candidates, from the data base of unemployed qualified educators, who meet the curriculum and other requirements of the vacancy. This process is supposed to be done during the first phase of the recruitment process. The second factor concerns the speed with which the School Principal is required to facilitate the selection process, immediately upon receipt of the approval for the filling of the vacant post(s) and thereafter.
80 If indeed there was a pool of suitably qualified educators, the District HR Component would have recorded their names in Part C of Proforma 1 so that the School Principal could immediately arrange an interview for them. The fact of the matter is that such an exercise could not be done, and had it not been because of the applicant’s recruitment, the learners would have been without a History and Isizulu teacher for a period of almost five months.
81 During the proceedings I asked Mr Mthembu as to why should it not be concluded that, in the circumstances of this case, the applicant was an obvious choice for reappointment, and as to why the situation confronting the learners should have not been treated by the respondent as constituting exceptional circumstances warranting the reappointment of the applicant. Firstly, the applicant was the only candidate who was qualified to teach History and IsiZulu, and probably the most experienced teacher.
82 Secondly, learners have been without a teacher for these subjects, at least from January 2021 when the school was given the approved staff establishment. I also asked Mr Mthembu to explain as to what the respondent’s understanding of the best interests of the learners is, especially in a situation where learners would have been without a teacher for History and Isizulu for such almost five months. In all instances I could not get satisfactory responses except reiterating the overarching narrative that there was no approval of the HOD regarding the reappointment of the applicant.
83 The irony about reliance on the non-availability of the HOD’s approval, if the evidence of Mr Mthembu is to be believed, is that it was Ms Chaule and by extension Mr Mthembu, who denied the HOD the opportunity to exercise his statutory discretionary power as to whether or not the school’s request for the reappointment of the applicant should be approved. From both oral and documentary evidence in this matter, it was clear that appointment of temporary and substitute educators was not a delegated function at the time of the recruitment of the applicant, and probably even as at the date of the arbitration hearing. At was alleged by Mr Mthembu that the documents relating to the school’s request for the reappointment of the applicant were returned to the school before they could serve before the authorized decision maker, the HOD.
84 In the main, the evidence tendered obo the respondent sought to suggest that the Head of Department had some kind of an unfettered discretion in this matter, to the extent that even if the submission could have been made to him, he would have not approved it. Khampepe J, in Head of Department, Department of Education, Free State Province v Welkom High School & Others , said the following about the proper exercise of a discretionary power:
“ State functionaries, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, and has long been enshrined in our law…”
85 In High School Carnarvon and Another v MEC for Education, Training, Arts and Culture of the Northern Cape Provincial Government and Another [1999] 4 All SA 590 (NC),the following was said about the exercise of discretionary power:
“ … a public authority with discretionary power may not simply act as it pleases because of that discretionary power. The discretion is always a limited one which varies according to the language of the empowering legislation. A functionary with a discretion may only exercise that discretion as provided in the empowering statute. If he acts other than as authorised by the relevant statute, then his actions will be ultra vires his powers”.
86 In the instant case, it is doubtful as to whether the Head of Department would have had a discretion not to approve the school’s request for the reappointment of the applicant for the simple reason that at the time the Principal was informed of a ‘disapproval’ of the school’s request, in May 2021, too much water had already gone under the breach. The HOD would have had an insurmountable hurdle to overcome, especially in the light of what the courts said in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others, MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd, Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal and similar authorities.
87 The last issue I wish to deal with is Mr Mthembu’s assertion that HRM Circulars Numbers 3 and 13 of 2018 were applicable only to job applicants such as Ms Dladla and that they had nothing to do with resignees. This assertion is simply without any merit for the following reasons. According to the evidence of the principal, both the applicant and Ms Dladla had to be appointed against the downgraded posts as substitute educators. As already explained the first phase of the recruitment process involves a request for an approval to fill a vacant post or vacant posts. It is only after obtaining an approval for the filling of a vacant post that the principal can commence with the selection processes. In other words, the question as to who is recommended for appointment or reappointment arises only after an approval has been granted in terms of the recruitment processes outlined in HRM Circulars Numbers 3 and 13 of 2018. It is only at this stage where a school, which wishes to recommend a resignee for reappointment, is required to submit a written motivation in support of such a recommendation.
88 Mr Mthembu’s suggestion that resignees and new job seekers are engaged through different recruitment processes is simply ill-conceived and imaginary. What Mr Mthembu may have not been aware of, and probably even at the time of the arbitration hearing, is that the applicant, Ms Dladla and the other candidates were shortlisted and interviewed (through the same processes) for the two downgraded posts.
89 Consequently, it is my finding that the dismissal of the applicant , Mbhele Nokufa Mavis, was both procedurally and substantively unfair.
QUANTIFICATION
90 The amount of the arrear salary had been calculated on the basis of the salary scale applicable to an educator with REQV13 qualification, which is R214 908. 00 per annum, translating into R17 909.00 per month.
91 The arrear salary must be calculated from the applicant’s actual date of assumption of duty, which was 05 March 2021 until 31 May 2022. The total amount to be paid to the applicant is R266 324.00 ( made up of R15 598.20 for March 2021 plus R250 726.00 for the period from 01 April 2021 until 31 May 2022.
92 I am aware that the applicant is of the view that she is entitled to be remunerated from 17 February 2021. I do not think there is any legal basis for a claim based on an arrangement which was made before the respondent could grant an approval for the filling of the two downgraded posts.
AWARD
93 The respondent is ordered to reinstate the applicant retrospectively from 26 May 2021 with back pay equivalent to 15 months’ remuneration, amounting R266 324.00. The applicant must be reinstated in the position she held before the dismissal or in an equivalent post, on terms and conditions not less favourable than those that existed prior to her dismissal.
94 The arrear salary must be paid by not later than 31 May 2022 or in the next salary run upon receipt of this arbitration award by the respondent . This amount shall attract interest at the prescribed rate from 01 June 2022.
95 The applicant must report for duty at Sicelukukhanya Secondary School on 01 June 2022.
12 May 2022
MORAKA ABEL MAKGAA
ELRC PANELIST
Case Number: ELRC516-21/22KZN
Arbitrator: Moraka Abel Makgaa
Date: 12 May 2022
In the matter between: -
Mbhele Nokufa Mavis Applicant
And
Education Department of KwaZulu-Natal Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 08 March 2022, 05 April 2022 and 03 May 2022. The employee was present, and represented herself. The Respondent was represented by Mr Samkelo Ngcobo: Employee Relations Officer of the Respondent.
2 The Respondent submitted a bundle of documents which was marked as Annexure R, made up of 13 pages. The applicant did not submit any documents. The parties submitted signed pre-arbitration minutes.
3 The proceedings were digitally recorded and conducted in English. Both parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein.
ISSUES TO BE DECIDED
4 I am required to determine whether the dismissal of the applicant was both procedurally and substantively fair. Should I find that the dismissal was unfair, I am required to determine the appropriate remedy.
INTRODUCTION AND BACKGROUND
5 The matter was initially set down for arbitration on 08 March 2022, and it was postponed to 05 April 2022 per agreement of the parties. It was, however, agreed that the parties could revert to the pre-arbitration meeting. The pre-arbitration minutes were compiled and signed by the parties at a later date. The following were agreed to be the common cause issues:
5.1 The Applicant once worked at Sicelukukhanya Secondary School under the Kwazulu-Natal Education Department. She resigned from the Department at the end of July 2016. She worked at Sicelukukhanya Secondary School from 15 February 2021 until her services were terminated on 26 May 2021. Her assumption of duty forms were never submitted to the Circuit and District Offices in respect of the month of February 2021.
5.2 On 04 March 2021 the Applicant together with other three (3) candidates were interviewed to fill two promotional posts on temporary basis. The two posts were downgraded to PL1 posts. The applicant got position one (1) and was recommended for appointment against a Departmental Head post, teaching Isizulu and History, whereas Ms Dladla who got position two was recommended for appointment against the Deputy principalship post, teaching Geography and English.
5.3 On 05 March 2021 the applicant and Ms Dladla were introduced to the staff as the successful candidates. The Applicant was never paid any salaries until termination of her services on 26 March 2021. Ms Dladla was the only one who was paid her salaries at the end of April 2021 for the months of March and April 2021.
6 The main issues in dispute were whether the applicant was the employee of the respondent, and whether or not she was dismissed. The existence of the dismissal was as such in dispute.
7 05 April 2022 the applicant testified and closed her case. The respondent called one witness and thereafter made an application for postponement of the proceedings due to water challenges at the premises of the respondent. The matter was postponed to 03/05/2022 per agreement of the parties.
PRELIMINARY ISSUES
8 At the beginning of the proceedings, on 05 April 2022 Mr Ngcobo made an application for the proceedings to be discontinued on the basis that his colleague, Mr Ntshangase, informed him that this matter was arbitrated on 09/03/2022, and that the arbitration award was pending. The applicant disputed this assertion contending that the dispute was arbitrated on 09 March 2022 involved non-payment of salary, under case number ELRC527-21/22KZN, and not an alleged unfair dismissal.
9 I made an ex tempore Ruling refusing the respondent’s application for discontinuation of the proceedings on the basis that the respondent’s objection was not based on a true jurisdictional question.
10 At the end of the proceedings on 03 May 2022, Mr Ngcobo informed me that the arbitration award in case ELRC527-21/22KZN has been issued in favour of the respondent. He apparently sought to suggest that it may no longer be necessary for me to write an arbitration award since the matter, in his understanding, has been settled.
11 I have had the opportunity of reading the arbitration award tendered by my colleague, commissioner Marlon Plaatjies. I decided to proceed writing this arbitration award, firstly, because I am of the view that the respondent’s case in the matter before me breaks down both at the level of fact and law. Secondly, I do not agree with the approach and findings of my colleague, commissioner Plaatjies.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
12 The applicant’s testimony can be summarized as follows. She was employed by the principal of Sicelukukhanya Secondary School, Mrs Mbatha on 15 February 2021. The principal informed her that she got a phone call from the Department on 03 March 2021, authorising the school to conduct interviews for the posts of Departmental Head and Deputy Principal, which were downgraded to post level 1 posts.
13 Five candidates were shortlisted and called to the interviews on 04 March 2021 but the fifth candidate did not turn up for the interview. After the interviews she got a phone call informing her that she got position 1 and that Ms Dladla got position 2. They were called to come and complete employment forms, which they did. The principal said that the completed employment forms must be submitted to the Department the following day. They were told to come to work on 05 March 2021, which they did. After assembly, a staff meeting was called where they were introduced as the successful candidates. They were welcomed as part of the staff of Sicelukukhanya Secondary School. They signed the attendance register, given the duty load and started teaching.
14 During the months of March 2021 and April 2021, the principal asked her and Ms Dladla as to whether they got their salaries, and they informed her that they have not been paid. When schools reopened on 03 May 2021, Ms Dladla told the principal, in her presence, that she received her salaries for March 2021 and April 2021.The principal promised to phone both the District and Circuit Offices to find out why the applicant was not paid. On 10 May 2021 she was informed by the principal that the Department informed her that the applicant’s documents were submitted to the HOD, Mr Nzama, for approval. That was the reason why the applicant had not been paid.
15 On Wednesday, 12 May 2021, she was called to the principal’s Office, where she found the principal together with the Deputy principal and HODs, viz Mr Mkhwanazi (Deputy Principal), Mr Vilakazi (Departmental Head for Languages), Ms Ngubane (Science Department), Mr Mtshali (Commerce Department) and Ms Mkhize (History Department). The principal said that she received a phone call from the Department wherein she was directed to write a recommendation letter about why she wanted to appoint the applicant. The principal showed them the recommendation letter which she once submitted and said that she will resend the motivation letter to the Department.
16 On 13 May 2021 she was phoned by a certain lady who introduced herself as Ms Chaule from the District Office. Ms Chaule was enquiring as to whether she had received her salaries. She told her that she has never been paid. Ms Chaule told her that she will get all her salaries after the HOD’s approval. On 14 May 2021 the principal called her to her Office and offered to loan her R5 000.00 on condition that she must pay back the loaned money upon receipt of her salaries. The principal indeed transferred the R5 000.00 to her bank account.
17 On 26 May 2021 she was called to the principal’s Office where she found the Principal, Deputy principal and the Departmental Heads. The principal said that she got a call from the District Office directing that the applicant must stop working immediately. The principal promised that she will make follow-ups about payment of her salaries for all the months for which she had worked and to update her. She was later phoned by the principal who said the Department was not prepared to pay her.
18 She further testified that she was paying R1 200.00 per month for transport. She was being given money for transport by other members of the staff. She was as such owing a lot of people who were borrowing her money and does not know how she was going to pay them.
19 She believes that she was unfairly dismissed in the sense that she was not given notice for termination of her services. She wanted to be reinstated at Sicelukukhanya Secondary School or at any other school.
20 Under cross examination, she testified that she resigned from the Department as an educator on 31 July 2016 due to ill-health. What she knows about reappointment of a resignee is that the principal must submit a motivation letter. She started teaching at the school on 15 February 2021, but the interviews were conducted on 04 March 2021. The principal did not give her an appointment letter, and she was told that it was because she was appointed on a temporary basis. Even Ms Dladla did not get an appointment letter. They just filled the assumption of duty forms and proceeded with teaching.
21 She did not know that the HOD was the only person who could approve the appointment of a person who had previously resigned. She was only told about prior approval by Mrs Chaule, which was after three months of her appointment. Her understanding is that an appointment letter is only given when one is appointed on a permanent basis. Even when she was appointed for the first time as a teacher in 2006, she did not get an appointment letter. She only got an appointment letter after completing 12 months, when she was appointed permanently at school.
22 She disagreed with the version that the principal’s evidence will prove that she was never appointed by the department but volunteered her services. Her explanation was that if that was the case, the principal would have not always asked her as to whether she had been paid. Had the principal told her that she was volunteering, she was not going to leave her job at Ingceboyesizwe School where she was earning R2 000.0 per month. She would have not agreed to go to a School where she would be expected to pay R1 200.00 per month for transport.
23 She also denied the allegation that after the interviews the principal told her that she must not start working as she was expected to wait for the HOD’s approval before she could start working. She insisted that the principal did not tell her that her situation was different from that of Ms Dladla because Ms Dladla never resigned from the Public Service before.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
24 Zodwa Mbatha’s evidence can be summarized as follows. She is the principal Sicelukukhanya Secondary School in Uthukela District. What she knows about Ms Mbhele is that she was a PL1 educator at Sicelukukhanya Secondary School since 2006 until her resignation in 2016 on account of ill-health.
25 In 2021 she received the 2021 PPN certificate indicating that the school was allocated additional three PL1 educator posts, and two promotional posts, viz the second Deputy Principal post and 1 Departmental Head post. The school was given a surplus educator to occupy one of the three PL1 posts. She received the second PL1 surplus educator. She received the second surplus teacher towards the end of term 1, and ultimately got the third surplus teacher. Her supervisor advised her to downgrade the two promotional posts to PL1 posts and have them filled through substitute educators so that the learners were not left without teachers.
26 She informed the SMT, SGB and the staff about the new PPN and that the school has been allocated additional five posts. She requested the staff, as she normally does, to head hunt or poach substitute educators who could be recruited to occupy the two downgraded posts. The Deputy Principalship post was allocated English and Geography whereas the Departmental Head post was allocated History and Isizulu.
27 The SGB mandated her as the principal to go on with the recruitment processes on the basis that the posts to be filled were temporary posts. They recruitment process was done quickly because learners were left without educators. On 14 February 2021 the Admin Clerk gave her Ms Mbhele’s CV and copies of qualifications. The following day she saw Ms Mbhele seated at the foyer. She called all four members of the SMT and invited Ms Mbhele and the Admin Clerk to the meeting. Ms Mbhele was informed about the existence of the two promotional posts and that they needed substitute educators.
28 Ms Mbhele also told her about the job she was having somewhere. She told Ms Mbhele that the problem is that she was a resignee but indicated that they were going to give it a try. She further informed Ms Mbhele that she was not the one employing educators, but she knows that the applicant was a hard worker and a good teacher. Ms Mbhele said that she was not going home as from that day and indicated that she would volunteer up until the post is advertised. She, because of the fact that learners were left without a teacher for some time, allowed Ms Mbhele to volunteer up until the post was advertised.
29 She testified that on 15 February 2021 she never said to Ms Mbhele that she could start going to class to teach. What she did was to allow Ms Mbhele to volunteer until the post was advertised. She couldn’t tell Ms Mbhele to go to class and start teaching because she knows the processes to be followed, which include being interviewed and fill the relevant forms before a teacher could start going to teach.
30 After the interviews, Ms Mbhele and Ms Dladla were phoned by the Admin Clerk, Ms Ngubane, who informed them that they were the successful candidates. Ms Dladla and Ms Mbhele were called to come complete the necessary forms because they wanted a teacher as learners were without a teacher. She explained to them as to what was it that was going to happen.
31 Ms Dladla was released, and they remained with Ms Mbhele where she explained to her that her status was different from that of Ms Dladla because she once resigned whereas Ms Dladla was a graduate from the University. She told Ms Mbhele that in her case they needed to get an approval from Dr Nzama because she was a resignee. Secondly, she did not have critical subjects. She further told her that the reason why they called her was because she was the only one from the CVs they were having who had Isizulu and History, and that the rest of the candidates did not have those subjects.
32 Ms Mbhele was told that her documents were to be submitted to the Department. Her response was that she had no problem and that she would wait. She did not force Ms Mbhele to go to class because she had already volunteered. The school could not issue Ms Mbhele with a notice of termination of her services because she was never issued with an appointment letter .
33 Under cross examination, she testified that she told Ms Mbhele that the relevant incumbent was going to be hired after interviews. Ms Mbhele said that she will not go home but was prepared to wait up until the interviews were conducted. Ms Mbhele volunteered from 15 February 2021 up until the interviews were conducted. She may have not uttered the word volunteering, but she knew that she will only be appointed after all the processes have been concluded.
34 After the interviews Ms Mbhele and Ms Dladla completed the employment contract forms. One of such forms was HRF01 form which is written “Request for the appointment of temporary/substitute educator”. By signing this form Ms Mbhele was aware that she was being recommended for appointment as opposed to being appointed. She wrote a motivational letter which was attached to the request for the HOD to approve the appointment of Ms Mbhele. She thereafter wrote other motivational letters which were shown to both the applicant and other members of the SMT.
35 She denied that the Department had never called her saying that Ms Mbhele must stop reporting for duty. She was ultimately informed by Mr Mthembu in HRM at the District that the request for the appointment of Mbhele was not approved. The reasons she got from Mr Mthembu that it was because Ms Mbhele was a resignee and that she did not have critical subjects.
36 Sibusiso Eric Mthembu’s evidence can be summarized as follows. He is employed by the respondent as an Assistant Director, in HR section. He is based at Uthukela District. His duties and responsibilities include recruitment and appointments of educators and public service personnel, as well as making submissions after appointments have been done before approval of the HOD.
37 He testified that HRM Circular No.13 of 2018 is concerned with temporary appointment of a new person, someone who has never been in the system before. He specifically testified about paragraphs 2 and 6 regarding proforma forms which must be completed by the school principal, Circuit Manager, HR Component at the District Office, and the District Director concerning the school’s request for the appointment of a substitute or temporary educator.
38 Upon receipt of the school’s request, HR component will forward the documents to the District Director for purposes of making a recommendation. The District Director will authorize the HR Component to facilitate the assumption of duty by the successful candidate, who must be given a formal offer of appointment. After authorisation by the District Director, the documents are forwarded to the Head of Office for final approval by the Head of Department.
39 HRM Circular No. 5 of 2017 regulates the recruitment and reappointment of educators who once resigned from the Department. According to the Circular a resignee will only be considered for reappointment after attempts to recruit an educator in the following categories have failed:
(i) Bursary holders; (ii) New job seekers, (iii) Surplus educators; and (iv) Displaced educators.
40 The persons and educators in the above categories must still meet curriculum needs of the school. There is a pool of these persons and educators from which the Department must identify those who meet curriculum needs of the school. A request for the reappointment of a resignee must be accompanied by a motivation which must, inter alia, include the following: (i) the subject specialization/s and the grade/s to be taught, (ii) attempts made to redeploy a surplus or displaced educator in filling the vacancy, and (iii) attempts made to get the services of a bursary holder or newly qualified educator for the vacancy. The motivation from the school must also be supported by the Circuit Manager.
41 Upon receipt of the motivation, the District HR will compile a submission for approval by the Head of Department so that teaching and learning is not compromised. Once an approval of the Head of Department is obtained the school is duly informed. It is then that the educator concerned can assume duty.
42 It is only the Head of Department who must approve the reappointment of a resignee, unlike in the case of recruitment of new educators who are allowed to assume duty after authorisation by the District Director. The District Director can authorise assumption of duty by the new educator for the benefit of the learners because of the fact that when the submission goes to Head Office it takes long to be approved. Once the District Director’s authorisation is received the District HR must issue a formal offer of appointment to the successful candidate.
43 He is the only one in the Department who is responsible for compiling submissions concerning reappointment of the resignees. He has never received anything in respect of an application for the reappointment of Ms Mbhele. He only learned after the arbitration hearing of 09 March 2022 that Ms Chaule received documents to appoint Ms Mbhele. Mrs Chaule discovered that Ms Mbhele did not qualify to be appointed because a submission had not been made to the Head of Department for approval of her reappointment. Mrs Chaule decided to send the documents back to the school.
44 Ms Mbhele cannot be regarded as an employee of the Department because she once resigned from the Department and has never been reappointed by the Department. If she was appointed there should be an appointment letter.
45 When asked, under cross examination, as to why during the arbitration in the other matter of the applicant, he testified that nothing was ever submitted to him about the reappointment of the applicant so that he could in turn make a submission for approval by the HOD, his explanation was that at that time he was not aware. After the hearing he went back to the Office to investigate the allegation and was informed that the school has indeed submitted documents about the reappointment of the applicant.
46 As to when did Mrs Chaule receive the documents about the reappointment of Ms Mbhele and as to when did she return them, he testified that what Mrs Chaule told him was that immediately after receipt of the documents she returned them to the school because they were not complying with HRM Circular No 5 of 2017.
47 He testified that HRM Circular 3 of 2018 must be read together with HRM Circular No 13 of 2018 because they refer to categories of temporary employees other than the resignees. A person in the position of Ms Mbhele may only be considered after people from the other categories have been considered and no one who meet the curriculum needs of the vacant post could be found.
48 As to why in the present case, it should not be concluded that no one from the preferred categories could be found to fill the post for which Ms Mbhele was recommended, and for that reason Ms Mbhele qualified to be reappointment on the basis of exceptional circumstances, his answer was that Ms Mbhele did not have scarce subjects. Secondly, he said that there was no approval of the HOD for Ms Mbhele’s reappointment. Thirdly, the Department had a pool of surplus educators who could teach History and Isizulu
49 In response to the issue of the best interests of the learners, he testified that it is not true that the Department did not have teachers who could teach History and Isizulu. If ever the school had a challenge of a teacher in the two subjects, the school would have made a submission to the District, which could have commenced with recruitment processes for the appointment of a surplus educator or displaced educator. In this case there was no submission made for the appointment of a teacher.
ANALYSIS OF EVIDENCE AND ARGUMENT
50 The applicant’s case, as I understand it, seems to be founded on the legal principles contemplated in item 2(1) of schedule 8 to the Labour Relations Act 66 of 1995, which provides that “ a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure...” The respondent on the other hand argues that there was no dismissal because of the non-existence of the employment relationship between the applicant and the respondent. That was the reason why the onus was on the applicant to establish the existence of the dismissal in terms of section 192 of the LRA. It effectively means that the first question to be determined is whether the applicant was an employee of the respondent for the purposes of the LRA, before considering the merits of the claim of unfair dismissal .
51 Section 213 of the LRA defines an “employee” as :
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of " employee".
52 In State Information Technology Agency (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others , the LAC, per Davis JA, at para 12 , said the following about the approach that may be adopted when determining whether or not a person is an employee of the employer:
“…when a court determines the question of an employment relationship, it must work with three primary criteria:
1. an employer’s right to supervision and control;
2. whether the employee forms an integral part of the organization with the employer;
3. the extent to which the employee is economically dependent upon the employer”.
53 I wish to start with ‘the extent to which the employee is economically dependent upon the employer’ criterion because my understanding is the respondent’s main defense is founded on a denial of the existence of such a dependency. This kind of a defense was at the heart of the church’s defense in the Universal Church of the Kingdom of God v Myeni Mxolisi Justice, Case No. DA 3/14 ( which was handed down on 28 July 2015). Just like the respondent in the present case, the Church ( as the alleged employer) denied the allegation made by Mr Myeni (whose services were terminated by the Church) that he was an employee of the Church within the contemplation of the LRA.
54 One of the obvious differences between the present case and the Myeni case, supra, is that there was no dispute about the existence of a signed agreement between the parties. They, had for instance, signed two documents titled ‘ Regulations for Pastors’ and ‘ Declaration of Voluntary Service’. Their dispute was ultimately determined by the Labour Appeal Court (“LAC”) on the basis of the terms the agreement they had entered into.
55 In casu, the respondent sought to suggest, first through the evidence of the principal and ultimately through that of Mr Mthembu, that the applicant had freely offered to teach at Sicelukukhanya Secondary School. The truth of the matter is that the applicant denied, vehemently, the allegation that she volunteered to teach at the school until an approval is obtained from the Head of Department (“HOD”). She said, both during examination-in-chief and under cross-examination, that “Ms Mbhele volunteered from 15 February 2021 up until the interviews were conducted”. In any event, the principal had ultimately conceded that the applicant never used the word ‘volunteering’.
56 I am also of the view that the assertion that the applicant volunteered her services is simply unmeritorious for a number of reasons. In the first instance, it does not make any sense, by stretch of any imagination, that the applicant could have decided to leave a job of being a screener for that of a volunteer, and join an institution where she was expected to incur transport-related expenses amounting to R1 200.00 per month.
57 There is no doubt that the applicant was better off with a wage of R2 000.00 per month, even if it may have been below the prescribed national minimum wage, than having to continue teaching learners under circumstances where she had to endure what was clearly an extended period of unprecedented suffering and humiliation.
58 Mr Mthembu’s contention that the applicant was not entitled to any remuneration could have not been based on a belief that the applicant had volunteered her services for the simple reason that his evidence is completely irrelevant to all the factual disputes that stand to be resolved in this matter. In fact, he had conceded under cross examination that he was unable to testify about what happened at the level of the school with regard to the applicant’s dispute. To the extent relevant to this aspect of the dispute, Mr Mthembu’s evidence sought to suggest that the fact that the applicant was never issued with an appointment letter was sufficient proof of the non-existence of an employment contract between the respondent and the applicant. This argument breaks down, firstly, at the level of fact, and secondly, at the level of law.
59 The facts of this case are that the applicant, just like Ms Dladla, was made to sign all the relevant employment contract forms that needed to be signed by any successful candidate. Both the applicant and the principal confirmed that both the applicant and Ms Dladla were called to come and sign the documents that needed to be signed by successful candidates, and that this was done on 04 March 2021, immediately after announcement of the results of the interviews. When the principal was testifying, I asked her whether it would not be possible for her to send copies of the documents signed by the applicant to both the applicant and the respondent’s representative, as well as I. The respondent’s representative raised an objection on the basis that discovery of such documents was not necessary because it was common cause between the parties that those documents have been signed by the applicant and submitted by the school principal.
60 I am of the view that what happened in this case was much more than informing a candidate that he or she was the successful candidate. By making the applicant to sign documents relating to her employment, a written offer of employment was effectively made to the applicant, which she accepted. This process had effectively concluded the creation of the employment contract between the applicant and the respondent. As if that was enough, the following day, on 05 March 2021, the applicant and Ms Dladla were introduced to whole staff as successful candidates, and from there onwards they continued rendering services for the work they were interviewed and hired for.
61 I am aware that the respondent sought to distinguish the situation of the applicant from that of Ms Dladla solely because Ms Dladla’s engagement constituted a first appointment and not a reappointment after break in service. Mr Mthembu’s evidence that a person in the position of Ms Dladla is required to assume duty following authorisation by the District Director and after being given a formal offer of appointment, and after receipt of the prescribed assumption of duty form from the school, is not supported by the objective facts in the present circumstances. There was no evidence suggesting that there was any stage where such an offer of appointment was made to Ms Dladla. In fact, the applicant and Ms Dladla are similarly situated for the purposes of determining the existence of the employment relationship with the respondent.
62 It is my finding that the applicant never volunteered her services at the school. It is also found that an employment contract was created between the applicant and the respondent. Strictly speaking, once this determination is made it is no longer necessary to answer the question whether the three criteria identified in the SITA case are present in the relationship between the applicant and the respondent, because such a reality is consequential. I have nonetheless decided to proceed with analysis of the three criteria in the event I could be wrong in this regard.
63 The applicant’s evidence that she was given a duty load, she was under the supervision and control of the Departmental Head, Ms Mkhize, and that she was signing the time book was never disputed. It also became clear that the applicant was indirectly under the supervision and control of the principal and the School Management Team (“SMT”), hence she would from time to time be called to a meeting with the SMT, mainly to discuss issues relating to her reappointment.
64 The fact that the applicant formed an integral part of the school, in particular, and broadly that of the Department, has its origin in the manner in which the applicant and Ms Dladla were welcomed and introduced to the entire staff on 05 March 2021. By leaving the job of the screener for a teaching post in the Department, which was clearly a better paying job, and remained in the job with the hope that she would ultimately get paid her salaries, is sufficient proof that she was economically dependent upon the respondent. By taking or accepting loans from her colleagues, including the school principal, and promising to service such debts once her arrear salaries have been paid is proof of both her economic dependency on the respondent and of being an integral part of the school.
65 I am satisfied that the three factors identified in the SITA case are present in the relationship which existed between the applicant and the respondent. The applicant is, consequently, declared to have been the employee of the respondent within the contemplation of the LRA.
66 Turning to the merits of the case, the respondent’s responses to both the procedural and substantive fairness challenges were founded on a belief that there was no employment relationship with the applicant. The respondent, in an attempt to support this main argument, made the following allegations:
66.1 The applicant’s reappointment could not be approved as a result of non-compliance with the provisions of HRM Circular No.5 of 2017.
66. 2 The applicant has never been issued with an appointment letter by the respondent.
66.3 The applicant’s reappointment was never approved by the HOD.
66.4 It was not necessary for the respondent to give the applicant a notice of termination of her services or to issue her with notice of termination of her employment because she was an employee of the respondent.
67 Starting with procedural fairness, according to the applicant’s undisputed evidence, she was simply called from the classroom to a meeting of the principal and the entire SMT. Upon arrival she was told that the principal had received feedback from the Department to the effect that the request for the applicant’s reappointment had not been approved on the basis that she is a resignee and that she did not have critical subjects. She was told stop reporting for duty forthwith, as per the instruction of Department. Even on the version of the witnesses of the respondent, the applicant was never given any notice of termination of her services.
68 The only situation that I am aware of where the respondent may not have been required to institute an enquiry or follow any due process is in respect of section 14 of the Employment of Educators Act 76 of 1998 (“EEA”), which provides as follows:
“14. Certain educators deemed to be discharged.—(1) An educator appointed in a permanent capacity who—
(a) is absent from work for a period exceeding 14 consecutive days without permission of the employer;
(b) while the educator is absent from work without permission of the employer, assumes employment in another position;
(c) while suspended from duty, resigns or without permission of the employer assumes employment in another position; or
(d) while disciplinary steps taken against the educator have not yet been disposed of, resigns or without permission of the employer assumes employment in another position, shall, unless the employer directs otherwise, be deemed to have been discharged from service on account of misconduct, in the circumstances where—
(i) paragraph (a) or (b) is applicable, with effect from the day following immediately after the last day on which the educator was present at work; or
(ii) paragraph (c) or (d) is applicable, with effect from the day on which the educator resigns or assumes employment in another position, as the case may be”.
69 Section 14 of the EEA would have not been applicable to the circumstances of the applicant. In any event, that is not the case of the respondent. I wish to defer my finding on the question whether or not the applicant’s dismissal was procedurally fair, on the basis that this question is inextricably linked to the reasons for the applicant’s dismissal.
70 I am of the view that, from the list of the things which are said to be the requirements which were alleged not been met by the applicant and the activities which must have been performed in relation to a request for the reappointment of the applicant, the only requirement which should ordinarily be the headache of any resignee, including the applicant, is whether or not such a resignee is qualified to teach any of what the respondent regarded as scarce subjects. There is no doubt in my mind that it should always be the responsibility of the respondent’s own officials to ensure that only applicants who meet the requirements specified in the Department’s Circulars are shortlisted, interviewed and recommended for appointment. It should also be the responsibility of the respondent’s own officials to ensure that an approval for reappointment of a resignee is obtained, and that an appointment letter is issued to the successful candidate.
71 Assuming, for a moment, that there was a solid factual foundation for the allegations made as to why the applicant’s reappointment was bound to be disapproved, why should it had to take the respondent a period of almost three months, as correctly asked by the applicant, before it was ultimately decided that the applicant did not meet the requirements contemplated in HRM Circular No.5 of 2017? I do not think the applicant deserved to be blamed or punished for what appears to have been the state of chaos, confusion and inefficiencies of the highest of order.
72 The objective facts, in the present circumstances, suggest that the scarce subjects requirement was completely irrelevant for the simple reason that it had nothing to do with the curriculum requirements of the downgraded post at issue. The school was looking for a teacher who was qualified to teach History and Isizulu, and the applicant happened to be the only suitably qualified teacher in that regard.
73 The assertion that the school ought to have first given priority to educators declared in excess, displaced educators, bursary holders and newly qualified educators, as well as the allegation that there was a pool of surplus educators who were qualified to teach History and Isizulu had no factual basis. This was clearly an evidence of someone who had no knowledge of the correct facts of this case. To crown it all, Mr Mthembu was clearly not aware of the evidence tendered by the principal and in respect of these issues.
74 The principal’s evidence was that there were some delays in filling the three PL1 posts through matching and absorption of surplus educators. Regarding the two promotional posts her evidence was that she was ultimately advised by her supervisor to downgrade the two posts, after it became clear that the two posts could not be filled through the process of rationalization and redeployment. The selection processes for filling the downgraded posts had to be done with the greatest speed because learners had been without teachers for some time. This sense of urgency was clearly not only limited to the principal, but it also extended to the District Director if reference is to be to the provisions of HRM Circular No.13 of 2018, particularly paragraph 3 which reads as follows:
“ The District Director is also required to ensure that the processes of securing the educator and obtaining the necessary approval from the Head of Department are still finalized within five (5) days as stipulated in HRM Circular No.6 of 2018”.
75 I wish to give some greater details regarding the recruitment process which must be followed in the appointment of temporary and substitute educators in order to demonstrate that there was no merit in the reasons advanced as to why the applicant’s reappointment could not be approved or entertained. According to paragraph 1 of Circular 3 of 2018 the appointment of substitute educators and temporary educators against vacant promotional posts had to be made subject to prior approval by the Head of Department. This provision was apparently amended by paragraph 1 of Circular No 13 of 2018, which provides as follows:
“ … in order to fast-track the process, substitute and temporary educators may be allowed to assume duty after the recommendation of the District Director has been forwarded to the Head of Department for approval…”
76 To the extent relevant for the present purposes, paragraphs 1, 2(a) to ( c), 3, 4, 6 of Circular No.13 of 2018 are identical to paragraphs 2.1, 2.2 ( a) to ( c), 2.3 and 2.4 of Circular No. 3 of 2018. These provisions, as I understand them, outline a recruitment and selection process made up of` two phases. The first phase is concerned with a request for an approval to fill a vacant post on temporary basis. The process is kick-started by the School Principal who is required to complete Part A of Proforma 1 dealing with a request for the appointment of temporary/substitute educators. The School Principal is required to furnish documentary evidence substantiating reasons for the vacancy sought to be filled.
77 Upon receipt of the school’s submission, the Circuit Manager will either complete Part B of Proforma 1 if there is a need to proceed with the request or return the documents to the school in instances where there is no need to proceed with the request. The HR component at the District will, after verification of the reason for the vacancy, complete Part C, and also identify and record 5 candidates, from the data base of unemployed qualified educators, who meet the curriculum and other requirements of the vacancy. The completed Proforma 1 is, together with all supporting documents, then returned to the School Principal.
78 Upon receipt of the completed proforma 1, the Principal must commence, immediately, with the second phase of the recruitment process, which involves the processes of shortlisting, interviews and recommendation of the successful candidate(s). Upon completion of the selection process, the Principal must immediately complete Proforma 2 dealing with a recommendation for appointment of a temporary/substitute educator. A process similar to the one in Proforma 1 is followed until the District Office. The District Director makes his or her recommendation by completing Part D of Proforma 2, and also gives an authorization for assumption of duty by the successful candidate after such a candidate has accepted the formal offer of the appointment.
79 The procedures outlined in HRM Circulars Numbers 3 and 13 of 2018 are, inter alia, reflective of two important factors which are relevant to the present case. Firstly, the respondent’s officials, particularly the HR Component at the District Office, has the responsibility and the discretion to identify and record 5 candidates, from the data base of unemployed qualified educators, who meet the curriculum and other requirements of the vacancy. This process is supposed to be done during the first phase of the recruitment process. The second factor concerns the speed with which the School Principal is required to facilitate the selection process, immediately upon receipt of the approval for the filling of the vacant post(s) and thereafter.
80 If indeed there was a pool of suitably qualified educators, the District HR Component would have recorded their names in Part C of Proforma 1 so that the School Principal could immediately arrange an interview for them. The fact of the matter is that such an exercise could not be done, and had it not been because of the applicant’s recruitment, the learners would have been without a History and Isizulu teacher for a period of almost five months.
81 During the proceedings I asked Mr Mthembu as to why should it not be concluded that, in the circumstances of this case, the applicant was an obvious choice for reappointment, and as to why the situation confronting the learners should have not been treated by the respondent as constituting exceptional circumstances warranting the reappointment of the applicant. Firstly, the applicant was the only candidate who was qualified to teach History and IsiZulu, and probably the most experienced teacher.
82 Secondly, learners have been without a teacher for these subjects, at least from January 2021 when the school was given the approved staff establishment. I also asked Mr Mthembu to explain as to what the respondent’s understanding of the best interests of the learners is, especially in a situation where learners would have been without a teacher for History and Isizulu for such almost five months. In all instances I could not get satisfactory responses except reiterating the overarching narrative that there was no approval of the HOD regarding the reappointment of the applicant.
83 The irony about reliance on the non-availability of the HOD’s approval, if the evidence of Mr Mthembu is to be believed, is that it was Ms Chaule and by extension Mr Mthembu, who denied the HOD the opportunity to exercise his statutory discretionary power as to whether or not the school’s request for the reappointment of the applicant should be approved. From both oral and documentary evidence in this matter, it was clear that appointment of temporary and substitute educators was not a delegated function at the time of the recruitment of the applicant, and probably even as at the date of the arbitration hearing. At was alleged by Mr Mthembu that the documents relating to the school’s request for the reappointment of the applicant were returned to the school before they could serve before the authorized decision maker, the HOD.
84 In the main, the evidence tendered obo the respondent sought to suggest that the Head of Department had some kind of an unfettered discretion in this matter, to the extent that even if the submission could have been made to him, he would have not approved it. Khampepe J, in Head of Department, Department of Education, Free State Province v Welkom High School & Others , said the following about the proper exercise of a discretionary power:
“ State functionaries, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, and has long been enshrined in our law…”
85 In High School Carnarvon and Another v MEC for Education, Training, Arts and Culture of the Northern Cape Provincial Government and Another [1999] 4 All SA 590 (NC),the following was said about the exercise of discretionary power:
“ … a public authority with discretionary power may not simply act as it pleases because of that discretionary power. The discretion is always a limited one which varies according to the language of the empowering legislation. A functionary with a discretion may only exercise that discretion as provided in the empowering statute. If he acts other than as authorised by the relevant statute, then his actions will be ultra vires his powers”.
86 In the instant case, it is doubtful as to whether the Head of Department would have had a discretion not to approve the school’s request for the reappointment of the applicant for the simple reason that at the time the Principal was informed of a ‘disapproval’ of the school’s request, in May 2021, too much water had already gone under the breach. The HOD would have had an insurmountable hurdle to overcome, especially in the light of what the courts said in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others, MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd, Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal and similar authorities.
87 The last issue I wish to deal with is Mr Mthembu’s assertion that HRM Circulars Numbers 3 and 13 of 2018 were applicable only to job applicants such as Ms Dladla and that they had nothing to do with resignees. This assertion is simply without any merit for the following reasons. According to the evidence of the principal, both the applicant and Ms Dladla had to be appointed against the downgraded posts as substitute educators. As already explained the first phase of the recruitment process involves a request for an approval to fill a vacant post or vacant posts. It is only after obtaining an approval for the filling of a vacant post that the principal can commence with the selection processes. In other words, the question as to who is recommended for appointment or reappointment arises only after an approval has been granted in terms of the recruitment processes outlined in HRM Circulars Numbers 3 and 13 of 2018. It is only at this stage where a school, which wishes to recommend a resignee for reappointment, is required to submit a written motivation in support of such a recommendation.
88 Mr Mthembu’s suggestion that resignees and new job seekers are engaged through different recruitment processes is simply ill-conceived and imaginary. What Mr Mthembu may have not been aware of, and probably even at the time of the arbitration hearing, is that the applicant, Ms Dladla and the other candidates were shortlisted and interviewed (through the same processes) for the two downgraded posts.
89 Consequently, it is my finding that the dismissal of the applicant , Mbhele Nokufa Mavis, was both procedurally and substantively unfair.
QUANTIFICATION
90 The amount of the arrear salary had been calculated on the basis of the salary scale applicable to an educator with REQV13 qualification, which is R214 908. 00 per annum, translating into R17 909.00 per month.
91 The arrear salary must be calculated from the applicant’s actual date of assumption of duty, which was 05 March 2021 until 31 May 2022. The total amount to be paid to the applicant is R266 324.00 ( made up of R15 598.20 for March 2021 plus R250 726.00 for the period from 01 April 2021 until 31 May 2022.
92 I am aware that the applicant is of the view that she is entitled to be remunerated from 17 February 2021. I do not think there is any legal basis for a claim based on an arrangement which was made before the respondent could grant an approval for the filling of the two downgraded posts.
AWARD
93 The respondent is ordered to reinstate the applicant retrospectively from 26 May 2021 with back pay equivalent to 15 months’ remuneration, amounting R266 324.00. The applicant must be reinstated in the position she held before the dismissal or in an equivalent post, on terms and conditions not less favourable than those that existed prior to her dismissal.
94 The arrear salary must be paid by not later than 31 May 2022 or in the next salary run upon receipt of this arbitration award by the respondent . This amount shall attract interest at the prescribed rate from 01 June 2022.
95 The applicant must report for duty at Sicelukukhanya Secondary School on 01 June 2022.
12 May 2022
MORAKA ABEL MAKGAA
ELRC PANELIST