ELRC805-21/22GP
Text
ELRC805-21/22GP
Award Date:
10 June 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 04 APRIL 2022 & 29 APRIL 2022
Case Number: ELRC805-21/22GP
Commissioner: Moraka Abel Makgaa
Date: 10 Jun 2022
In the matter between: -
Shabangu Thulani Bhekinkosi Applicant
And
Education Department of Gauteng Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 04 April 2022. The applicant was present and represented himself. The 1st respondent was represented by Mr Siza Mbhalati, Deputy Chief Education Specialist: Labour Relations of the respondent.
2 The applicant submitted the following documents: a sworn statement, letter of placement, salary advise dated 19 November 2021, appointment letter and letter of termination of his services. The 1st respondent submitted the letter of placement, termination of services and GDE1 Form: Application for contract ( temporary) appointment in respect of the applicant.
3 2nd respondent submitted a written response to the Jurisdictional Ruling date 06 May 2022, a memo approved by the Director General on 10 February 2016 and the Memorandum of Understanding signed on 16 February 2016, as well as a sworn statement.
4 The proceedings were digitally recorded. Both parties made oral closing arguments, immediately after the applicant had closed his case.
ISSUES TO BE DECIDED
5 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
6 TEACH SA issued the applicant with a letter dated 25 January 2021 in terms of which he was placed at Moses Maren Mission Technical Secondary School for a period of 2 years. According to the placement letter, the applicant was offered a Gauteng Department of Education (“GDE”) post, and he was, amongst others, informed that the GDE will be responsible for payment of his salaries. He was appointed by the GDE with effect from 01 March 2021. Teach SA issued him with a letter terminating his contract with immediate effect. On 10 January 2022 the school principal informed the applicant that he cannot be allowed to report for duty since his Teach SA had terminated his employment contract.
7 Aggrieved by this decision he referred a dispute of alleged unfair dismissal to the ELRC, which could not be resolved at the conciliation stage, hence it was referred to an arbitration process on 04 April 2022. The arbitration process was conducted and concluded on the same day. The respondent’s contention was that the applicant’s true employer is Teach SA and not Gauteng Department of Education. The applicant on the other hand insisted that Gauteng Department of Education is his employer, and that Teach SA’s role was that of a recruitment agency.
8 Upon further reflection, it became clear that Teach SA is a necessary party to the proceedings, hence a Jurisdictional Ruling was issued in terms of which Teach SA was joined as 2nd Respondent, with Education Department of Gauteng as 1st Respondent. I further directed that the matter must be set down for a jurisdictional hearing, which took place on 29 April 2022. Teach SA was represented by Mr Masemola. Unfortunately he was cut off and could not be able to rejoin the meeting due to connectivity challenges.
9 The hearing was ultimately postponed. I gave the parties 14 days within which they must make their written submissions, by way of affidavits and/or sworn statements, in relation to the jurisdictional question to be decided in this matter. I also gave specific directives relating to the time frames within which the parties must serve and file their founding and answering papers. The directives were complied with.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
10 Lindiwe Dinah Magoda testified under oath, and her evidence can be summarized as follows. She was employed by GDE as the principal of Moses Marren Technical Secondary School. Mr Shabangu and another lady were brought to the school by Teach SA during February 2021 to teach Maths and Physical Science respectively. They had a two (2) fixed-term employment contract with Teach SA in terms of which they were placed at the school.
11 During November 2021 a gentleman by the name of Moses together with two ladies from Teach SA came to school in order to check on the performance of the applicant and the other lady. They discovered that the applicant and the other lady were not doing what they were supposed to do. The learners’ results were also not improving. Moses told them that their contracts will be terminated at the end of December 2021.
1 2 In during January 2022 she enquired about their contracts. Moses told her that Teach SA has given them letters of termination of their services. She requested Moses to email her the letter, which he did. She called the applicant and showed him the letter from Teach SA.
13 In the Department an employee is given a 30 days’ notice if his or her services are to be terminated. In this case, she could not give the applicant notice of termination of his services because he was an employee of Teach SA and not that of the Department. It was Teach SA which terminated the applicant’s services.
14 Mr Shabangu was not employed by the Department because if the school requires an educator, they will advertise the post and conduct interviews. In their case, they were simply brought by Teach SA. They also did not have a teacher qualification. She has never seen the appointment letter which the applicant said he got it from the District Office. She disputed the authenticity of this letter in several respects, which included the fact that the Persal number on it was different from those given to newly appointed teachers, the appointment letter was signed on 15 March 2020, which is a year before the date of the applicant’s appointment. The letter talks about appointment to an advertised post, but the school has never advertised a post. The letter should have been sent to her as the school principal and directly to the applicant.
15 Under cross examination, she conceded that the applicant was being paid by GDE. She further conceded that the applicant was appearing on the school’s payroll and was getting a salary advice on monthly basis. What she knew was that there was an agreement between GDE and Teach SA but she did not have much information beyond that.
16 She compiled a report which showed that she was not happy with performance and conduct of the applicant and the other lady. The report was discussed during the meeting with Moses, who said that based on the report Teach SA will be forced to withdraw the applicant and the other lady from the school.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
17 The applicant testified under oath, and his testimony can be summarized as follows. It is true that he was placed at the school by Teach SA as a recruitment agency. Teach SA recommended him for an appointment by GDE. He has an appointment letter from GDE, got his salary from GDE and was getting pay slips from GDE, which proved that he was employed as an educator and not an Ambassador. His appointment letter was emailed to him by Lehlohonolo on 11 January 2022. According to the letter was permanent but on 12 months’ probation.
18 After being dismissed by the principal he phoned Moses to find out as to what was happening. He also asked Moses to give him a letter as confirmation that his services had been terminated. Moses told him that he should get termination letter from his employer, which is GDE.
19 Under cross examination, he conceded that he was not recruited by the school or the GDE but was placed at the school by Teach SA. He also conceded that he received the termination letter in question from Teach SA. He is not a qualified educator and did not know that GDE has its own recruitment and selection processes.
20 The principal gave him HR forms which he completed and signed. He disagreed that his appointment letter is a fraudulent document because he got it from the District Office. If ever there are any issues with the appointment letter such issues must be discussed with HR. He has nothing to do with the mistakes which are said to have been made on the letter. He expected the notice of termination of his services from GDE because his appointment was made by the GDE.
2ND RESPONDENT’S AND 1ST RESPONDENT’S SUBMISSIONS
21 Richard Kanyane Masemola, in his capacity as non-Executive Director and Co-founder of Teach SA, deposed to an affidavit on 11 May 2022 explaining the relationship between Teach SA and GDE. The contents of the affidavit are based on the Memorandum of Understanding (“MOU”) entered into by and between the Department of Basic Education (“DBE”), the nine Provincial Departments of Education (PDEs) and Teach SA on 16 February 2016. The signing of the MOU was preceded by a memo generated by the DBE Curriculum Policy, Support and Monitoring Branch requesting an approval from the Director General, Mr MH Mweli, for signing the MOU with Teach SA. The approval was granted on 10 February 2016.
22 Mr Masemola quoted some of the provisions of the MOU, particularly those dealing with the “obligations of the PDEs and the DBE”. He specifically quoted sub-paragraphs 5.1, 5.1.1 and 5.1.2, which read as follows:
“5.1 The Departments of Education shall, inter alia:
5.1.1 Employ TEACH Ambassadors in underperforming schools that are located in disadvantaged communities which have been identified as having a shortage of skilled Mathematics teachers for a period of 2 (two) years.
5.1.2 Employ TEACH Ambassadors in terms of a written contract of employment for an initial period of 2 (two) years with the option of a 1 (one) year extension on the same terms and conditions of employment as teachers who are ordinarily employed by the Department in the position in which the TEACH Ambassador has been placed, provided that such extensions be agreed upon by TEACH SA as the recruiting and professional development agency”.
23 TEACH SA’s submission is that Gauteng Department of Education is the true employer of Mr Shabangu.
24 The 2nd respondent’s answering papers, which were made up of written arguments and a sworn statement deposed to by Mr Siza Mbalati, were submitted on 16 May 2022. Reference was also made to the signed MOU signed, the letters of placement and termination of the applicant’s services.
25 It is further submitted that the appointment letter which had been submitted by the applicant in support of his contention that he was, besides being appointed on a fixed-term contract, appointed by 1st respondent on a permanent basis, should be disregarded when determining whether the applicant had been unfairly dismissed by 1st respondent, because it is not authentic for the reasons already given by the principal.
26 In as far as the circumstances surrounding termination of the applicant’s employment contract and the role and responsibilities of 1st and 2nd respondents are concerned, the following is said:
“His contract of engagement was renewable subject to sound relationship between the three parties. The GDE’s responsibility was to host and be responsible for the salary which the department did. The engagement between Mr Shabangu was entered into solely on the basis of the contract between Teach SA and the department. On 10th January 2022 Teach SA terminated this contract and it then followed that the department could not renew this contract as he was placed on the premise that he had a placement contract with Teach SA…”
27 TEACH SA is also criticized for remaining silent on the letter of placement of the applicant and the one dealing with termination of the applicant’s contract.
ANALYSIS OF EVIDENCE AND ARGUMENT
28 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...”.
29 I wish to start with the applicant’s submission that on 11 January 2022 he received an appointment letter confirming that he has been appointed on permanent basis with effect from 01 March 2021. I am inclined to accept the principal’s evidence and the submission of the 1st respondent that the letter which the applicant is relying on is riddled with gross irregularities and it also appears to have been issued and obtained under dubious circumstances. During the arbitration proceedings I tried so hard to explain to the applicant that he would not be able to authoritatively testify about the authenticity of this appointment letter, moreso that the 1st respondent was distancing itself from the letter. It effectively means that there is no credible evidence to support the applicant’s claim for permanent appointment.
30 The only employment relationship which deserves to be assessed is the one which was created by the two (2) year fixed-term contract which is contemplated in the MOU entered into by and between Teach SA, the DBE and the nine PDEs. This is the employment relationship which resulted with the applicant’s placement at Moses Marren Technical Secondary School. It is the same employment relationship which was abruptly terminated on 10 June 2021.
31 The 1st respondent’s defense is based on two jurisdictional questions, which in their view oust the jurisdiction of the ELRC. The first jurisdictional point is in fact the 1st respondent’s main argument, wherein it is argued that 1st respondent had been wrongly cited as the applicant’s employer because it did not have such a relationship with the applicant. Secondly, it is argued, in the alternative, that the applicant and the 1st respondent had a fixed-term contract of employment which was valid from 15 February 2021 until 31 December 2021, which means that the applicant’s employment contract terminated at the effluxion of time. In other words, it is argued that the non-existence of the employment relationship and the expiry of the fixed-term contract of employment suggest that there was no dismissal.
32 The main reason why I had, inter alia, directed that the written submissions of the parties should be in the form of affidavits which must be dealt with on the basis of the principles applicable in the case of pleadings was to make sure that the submissions made and documents submitted obo the parties to this dispute can be relied on as evidence for purposes of this proceedings. Mr Mbhalati did not dispute the authenticity of any of the documents attached to the written submissions and sworn statement submitted obo Teach SA. In fact, he had also made reference to some of the provisions of the MOU signed with Teach SA on 16 February 2016. It is therefore accepted that the documents submitted by Mr Masemola are not disputed.
33 The question as to who the true employer of the applicant is, can be decisively answered by making reference to the documentary evidence submitted obo Teach SA, particularly the MOU, which was entered into on 16 February 2016, the approved memo, and the placement letter. In addition to the specific paragraphs quoted in Mr Masemola’s sworn statement in relation to the obligations of the PDEs and the DBE, reference can also be made to some of the provisions of the MOU dealing with the obligations of Teach SA. Sub-paragraphs 7.1.1, 7.1.2 and 7.1.3 of the MOU, for instance, provide as follows:
“7.1.1 Recruitment: TEACH SA Ambassadors will be recruited for 2 (two) years but may be given the option of extending the term of their commitment by 1 (one) year provided that agreement for the extension is formalised between TEACH SA and the Provincial Education Department(s) by 30 June in the second year”.
7.1.2 Induction: TEACH SA will undertake to ensure that each TEACH Ambassador completes the induction programme that has been developed by TEACH SA before s/he is employed by the Department…
7.1.3 Placement: The Department will employ TEACH Ambassador in identified schools that are located in disadvantaged communities which have been identified as having a shortage of skilled Mathematics teachers…”
34 According to sub-paragraph 4.1 of the approved memo, the PEDs are required to provide data about their needs, the availability of vacant posts and names of schools identified for placement of TEACH SA Ambassadors. The DBE: Human Resources Chief Directorate will, upon receipt of such information, sent letters to the respective provincial Heads of Departments informing them about placements which had been made. It is further stated, at sub-paragraph 5.1 of the approved memo, that the posts into which the Ambassadors are appointed are substantive, vacant posts by the respective PEDs.
35 The letter of placement which was issued to the applicant on 25 January 2021 makes it clear that the applicant will be placed in a GDE post with the GDE being responsible for payment of his salaries for the duration of his 2 years placement as a TEACH Ambassador.
36 In the instant case, there is overwhelming evidence proving that the GDE was the true employer of the applicant. Even if the 1st respondent could have decided to put the documentary evidence submitted by Mr Masemola in dispute, which is not so in the present case, the existence of the employment relationship between the applicant and the 1st respondent would have been easily determined on the basis of established legal principles identified in State Information Technology Agency (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others , and other similar authorities. In the State Information Technology Agency case, the Labour Appeal Court, 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”.
37 I do not think it is necessary for me to discuss the three criteria identified in the SITA case in any greater detail except to say that all the three criteria are present in the circumstances surrounding the engagement of the applicant. It is my finding that the applicant was an employee of the 1st respondent. The next question is whether the applicant had been dismissed. If yes, whether such dismissal was unfair. Section 186(1) of the LRA, in the relevant parts, defines dismissal as follows:
‘(1) ―Dismissal means that:
(a) an employer has terminated employment with or without notice.
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer-
(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee.
38 To the extent relevant to the present case, in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC), the Labour Court per Basson J, at para 16, said the following about circumstances under which a fixed-term contract of employment may or may not constitutes a dismissal for the purposes of the LRA:
“It is accepted that apart from a resignation by an employee (unless constructive dismissal is claimed consequent to resignation), an employment contract can be terminated in a number of ways which do not constitute a dismissal as defined in section 186(1) of the LRA, and more particularly, in terms of section 186(1)(a). These circumstances include the following: (i) The death of the employee; (ii) The natural expiry of a fixed term employment contract entered into for a specific period, or upon the happening of a particular event, e.g. the conclusion of a project or contract between an employer and a third party. In the first instance, if the fixed term employment contract is, for example, entered into for a period of six months with a contractual stipulation that the contract will automatically terminate on the expiry date, the fixed term employment contract will naturally terminate on such expiry date, and the termination thereof will not (necessarily) (subject to what is stated below in respect of the remedies provided for by the LRA to an employee who has signed such a contract) constitute a “dismissal”, as the termination thereof has not been occasioned by an act of the employer. In other words, the proximate cause of the termination of employment is not an act by the employer. Thus, the contract terminates automatically when the termination date arrives, otherwise, it is no longer a fixed term contract (SA Rugby (Pty) Ltd v CCMA & Others (2006) 27 ILJ 1041 (LC) at 1044 par 6). Furthermore, an employee who has entered into a fixed term employment contract is not without remedy in terms of the LRA or the common law, if the employer unfairly or unlawfully terminates the employment contract of the employee for reasons related to misconduct, incapacity or operational reasons, prior to the natural expiry of the fixed term employment contract.”
39 In casu, it is common cause that the applicant was appointed on a two (2) year fixed-term employment contract commencing on 01 March 2021.The applicant was summarily dismissed with effect from10 January 2022 due to allegations of misconduct and poor work performance. Both the 1st and 2nd respondents did not think it was necessary to follow the due processes which ought to have been followed in such circumstances, probably because of a misunderstanding of circumstances under which a fixed-term contract can be terminated.
40 Consequently, it is my finding that the termination of the applicant’s employment contract constituted a dismissal for the purposes of the LRA. The abrupt and premature termination of the applicant’s services on account of allegations which were not properly investigated and tested render the applicant’s dismissal to be both substantively and procedurally unfair.
QUANTIFICATION OF ARREAR SALARIES
41 According to the salary advise submitted by the applicant, his gross salary was, at the time of his dismissal, R33 323.00 per month. The total arear salary which must be paid to the applicant for the period January 2022 to June 2022 is R199 938.00.
AWARD
42 The respondent is ordered to reinstate the applicant retrospectively from 01 January 2022 with back pay equivalent to six (6) months’ remuneration, amounting R199 938.00. The applicant must be reinstated in the position he held before his dismissal, on terms and conditions not less favourable than those that existed prior to his dismissal.
43 The arrear salary must be paid to the applicant by not later than 30 June 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 July 2022.
44 The applicant must report for duty at Moses Marren Mission Technical Secondary School on 01 July 2022.
MORAKA ABEL MAKGAA
ELRC PANELIST
Case Number: ELRC805-21/22GP
Commissioner: Moraka Abel Makgaa
Date: 10 Jun 2022
In the matter between: -
Shabangu Thulani Bhekinkosi Applicant
And
Education Department of Gauteng Respondent
ARBITRATION AWARD
DETAILS OF THE ARBITRATION AND REPRESENTATION
1 The arbitration hearing was held virtually on 04 April 2022. The applicant was present and represented himself. The 1st respondent was represented by Mr Siza Mbhalati, Deputy Chief Education Specialist: Labour Relations of the respondent.
2 The applicant submitted the following documents: a sworn statement, letter of placement, salary advise dated 19 November 2021, appointment letter and letter of termination of his services. The 1st respondent submitted the letter of placement, termination of services and GDE1 Form: Application for contract ( temporary) appointment in respect of the applicant.
3 2nd respondent submitted a written response to the Jurisdictional Ruling date 06 May 2022, a memo approved by the Director General on 10 February 2016 and the Memorandum of Understanding signed on 16 February 2016, as well as a sworn statement.
4 The proceedings were digitally recorded. Both parties made oral closing arguments, immediately after the applicant had closed his case.
ISSUES TO BE DECIDED
5 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
6 TEACH SA issued the applicant with a letter dated 25 January 2021 in terms of which he was placed at Moses Maren Mission Technical Secondary School for a period of 2 years. According to the placement letter, the applicant was offered a Gauteng Department of Education (“GDE”) post, and he was, amongst others, informed that the GDE will be responsible for payment of his salaries. He was appointed by the GDE with effect from 01 March 2021. Teach SA issued him with a letter terminating his contract with immediate effect. On 10 January 2022 the school principal informed the applicant that he cannot be allowed to report for duty since his Teach SA had terminated his employment contract.
7 Aggrieved by this decision he referred a dispute of alleged unfair dismissal to the ELRC, which could not be resolved at the conciliation stage, hence it was referred to an arbitration process on 04 April 2022. The arbitration process was conducted and concluded on the same day. The respondent’s contention was that the applicant’s true employer is Teach SA and not Gauteng Department of Education. The applicant on the other hand insisted that Gauteng Department of Education is his employer, and that Teach SA’s role was that of a recruitment agency.
8 Upon further reflection, it became clear that Teach SA is a necessary party to the proceedings, hence a Jurisdictional Ruling was issued in terms of which Teach SA was joined as 2nd Respondent, with Education Department of Gauteng as 1st Respondent. I further directed that the matter must be set down for a jurisdictional hearing, which took place on 29 April 2022. Teach SA was represented by Mr Masemola. Unfortunately he was cut off and could not be able to rejoin the meeting due to connectivity challenges.
9 The hearing was ultimately postponed. I gave the parties 14 days within which they must make their written submissions, by way of affidavits and/or sworn statements, in relation to the jurisdictional question to be decided in this matter. I also gave specific directives relating to the time frames within which the parties must serve and file their founding and answering papers. The directives were complied with.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
10 Lindiwe Dinah Magoda testified under oath, and her evidence can be summarized as follows. She was employed by GDE as the principal of Moses Marren Technical Secondary School. Mr Shabangu and another lady were brought to the school by Teach SA during February 2021 to teach Maths and Physical Science respectively. They had a two (2) fixed-term employment contract with Teach SA in terms of which they were placed at the school.
11 During November 2021 a gentleman by the name of Moses together with two ladies from Teach SA came to school in order to check on the performance of the applicant and the other lady. They discovered that the applicant and the other lady were not doing what they were supposed to do. The learners’ results were also not improving. Moses told them that their contracts will be terminated at the end of December 2021.
1 2 In during January 2022 she enquired about their contracts. Moses told her that Teach SA has given them letters of termination of their services. She requested Moses to email her the letter, which he did. She called the applicant and showed him the letter from Teach SA.
13 In the Department an employee is given a 30 days’ notice if his or her services are to be terminated. In this case, she could not give the applicant notice of termination of his services because he was an employee of Teach SA and not that of the Department. It was Teach SA which terminated the applicant’s services.
14 Mr Shabangu was not employed by the Department because if the school requires an educator, they will advertise the post and conduct interviews. In their case, they were simply brought by Teach SA. They also did not have a teacher qualification. She has never seen the appointment letter which the applicant said he got it from the District Office. She disputed the authenticity of this letter in several respects, which included the fact that the Persal number on it was different from those given to newly appointed teachers, the appointment letter was signed on 15 March 2020, which is a year before the date of the applicant’s appointment. The letter talks about appointment to an advertised post, but the school has never advertised a post. The letter should have been sent to her as the school principal and directly to the applicant.
15 Under cross examination, she conceded that the applicant was being paid by GDE. She further conceded that the applicant was appearing on the school’s payroll and was getting a salary advice on monthly basis. What she knew was that there was an agreement between GDE and Teach SA but she did not have much information beyond that.
16 She compiled a report which showed that she was not happy with performance and conduct of the applicant and the other lady. The report was discussed during the meeting with Moses, who said that based on the report Teach SA will be forced to withdraw the applicant and the other lady from the school.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
17 The applicant testified under oath, and his testimony can be summarized as follows. It is true that he was placed at the school by Teach SA as a recruitment agency. Teach SA recommended him for an appointment by GDE. He has an appointment letter from GDE, got his salary from GDE and was getting pay slips from GDE, which proved that he was employed as an educator and not an Ambassador. His appointment letter was emailed to him by Lehlohonolo on 11 January 2022. According to the letter was permanent but on 12 months’ probation.
18 After being dismissed by the principal he phoned Moses to find out as to what was happening. He also asked Moses to give him a letter as confirmation that his services had been terminated. Moses told him that he should get termination letter from his employer, which is GDE.
19 Under cross examination, he conceded that he was not recruited by the school or the GDE but was placed at the school by Teach SA. He also conceded that he received the termination letter in question from Teach SA. He is not a qualified educator and did not know that GDE has its own recruitment and selection processes.
20 The principal gave him HR forms which he completed and signed. He disagreed that his appointment letter is a fraudulent document because he got it from the District Office. If ever there are any issues with the appointment letter such issues must be discussed with HR. He has nothing to do with the mistakes which are said to have been made on the letter. He expected the notice of termination of his services from GDE because his appointment was made by the GDE.
2ND RESPONDENT’S AND 1ST RESPONDENT’S SUBMISSIONS
21 Richard Kanyane Masemola, in his capacity as non-Executive Director and Co-founder of Teach SA, deposed to an affidavit on 11 May 2022 explaining the relationship between Teach SA and GDE. The contents of the affidavit are based on the Memorandum of Understanding (“MOU”) entered into by and between the Department of Basic Education (“DBE”), the nine Provincial Departments of Education (PDEs) and Teach SA on 16 February 2016. The signing of the MOU was preceded by a memo generated by the DBE Curriculum Policy, Support and Monitoring Branch requesting an approval from the Director General, Mr MH Mweli, for signing the MOU with Teach SA. The approval was granted on 10 February 2016.
22 Mr Masemola quoted some of the provisions of the MOU, particularly those dealing with the “obligations of the PDEs and the DBE”. He specifically quoted sub-paragraphs 5.1, 5.1.1 and 5.1.2, which read as follows:
“5.1 The Departments of Education shall, inter alia:
5.1.1 Employ TEACH Ambassadors in underperforming schools that are located in disadvantaged communities which have been identified as having a shortage of skilled Mathematics teachers for a period of 2 (two) years.
5.1.2 Employ TEACH Ambassadors in terms of a written contract of employment for an initial period of 2 (two) years with the option of a 1 (one) year extension on the same terms and conditions of employment as teachers who are ordinarily employed by the Department in the position in which the TEACH Ambassador has been placed, provided that such extensions be agreed upon by TEACH SA as the recruiting and professional development agency”.
23 TEACH SA’s submission is that Gauteng Department of Education is the true employer of Mr Shabangu.
24 The 2nd respondent’s answering papers, which were made up of written arguments and a sworn statement deposed to by Mr Siza Mbalati, were submitted on 16 May 2022. Reference was also made to the signed MOU signed, the letters of placement and termination of the applicant’s services.
25 It is further submitted that the appointment letter which had been submitted by the applicant in support of his contention that he was, besides being appointed on a fixed-term contract, appointed by 1st respondent on a permanent basis, should be disregarded when determining whether the applicant had been unfairly dismissed by 1st respondent, because it is not authentic for the reasons already given by the principal.
26 In as far as the circumstances surrounding termination of the applicant’s employment contract and the role and responsibilities of 1st and 2nd respondents are concerned, the following is said:
“His contract of engagement was renewable subject to sound relationship between the three parties. The GDE’s responsibility was to host and be responsible for the salary which the department did. The engagement between Mr Shabangu was entered into solely on the basis of the contract between Teach SA and the department. On 10th January 2022 Teach SA terminated this contract and it then followed that the department could not renew this contract as he was placed on the premise that he had a placement contract with Teach SA…”
27 TEACH SA is also criticized for remaining silent on the letter of placement of the applicant and the one dealing with termination of the applicant’s contract.
ANALYSIS OF EVIDENCE AND ARGUMENT
28 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...”.
29 I wish to start with the applicant’s submission that on 11 January 2022 he received an appointment letter confirming that he has been appointed on permanent basis with effect from 01 March 2021. I am inclined to accept the principal’s evidence and the submission of the 1st respondent that the letter which the applicant is relying on is riddled with gross irregularities and it also appears to have been issued and obtained under dubious circumstances. During the arbitration proceedings I tried so hard to explain to the applicant that he would not be able to authoritatively testify about the authenticity of this appointment letter, moreso that the 1st respondent was distancing itself from the letter. It effectively means that there is no credible evidence to support the applicant’s claim for permanent appointment.
30 The only employment relationship which deserves to be assessed is the one which was created by the two (2) year fixed-term contract which is contemplated in the MOU entered into by and between Teach SA, the DBE and the nine PDEs. This is the employment relationship which resulted with the applicant’s placement at Moses Marren Technical Secondary School. It is the same employment relationship which was abruptly terminated on 10 June 2021.
31 The 1st respondent’s defense is based on two jurisdictional questions, which in their view oust the jurisdiction of the ELRC. The first jurisdictional point is in fact the 1st respondent’s main argument, wherein it is argued that 1st respondent had been wrongly cited as the applicant’s employer because it did not have such a relationship with the applicant. Secondly, it is argued, in the alternative, that the applicant and the 1st respondent had a fixed-term contract of employment which was valid from 15 February 2021 until 31 December 2021, which means that the applicant’s employment contract terminated at the effluxion of time. In other words, it is argued that the non-existence of the employment relationship and the expiry of the fixed-term contract of employment suggest that there was no dismissal.
32 The main reason why I had, inter alia, directed that the written submissions of the parties should be in the form of affidavits which must be dealt with on the basis of the principles applicable in the case of pleadings was to make sure that the submissions made and documents submitted obo the parties to this dispute can be relied on as evidence for purposes of this proceedings. Mr Mbhalati did not dispute the authenticity of any of the documents attached to the written submissions and sworn statement submitted obo Teach SA. In fact, he had also made reference to some of the provisions of the MOU signed with Teach SA on 16 February 2016. It is therefore accepted that the documents submitted by Mr Masemola are not disputed.
33 The question as to who the true employer of the applicant is, can be decisively answered by making reference to the documentary evidence submitted obo Teach SA, particularly the MOU, which was entered into on 16 February 2016, the approved memo, and the placement letter. In addition to the specific paragraphs quoted in Mr Masemola’s sworn statement in relation to the obligations of the PDEs and the DBE, reference can also be made to some of the provisions of the MOU dealing with the obligations of Teach SA. Sub-paragraphs 7.1.1, 7.1.2 and 7.1.3 of the MOU, for instance, provide as follows:
“7.1.1 Recruitment: TEACH SA Ambassadors will be recruited for 2 (two) years but may be given the option of extending the term of their commitment by 1 (one) year provided that agreement for the extension is formalised between TEACH SA and the Provincial Education Department(s) by 30 June in the second year”.
7.1.2 Induction: TEACH SA will undertake to ensure that each TEACH Ambassador completes the induction programme that has been developed by TEACH SA before s/he is employed by the Department…
7.1.3 Placement: The Department will employ TEACH Ambassador in identified schools that are located in disadvantaged communities which have been identified as having a shortage of skilled Mathematics teachers…”
34 According to sub-paragraph 4.1 of the approved memo, the PEDs are required to provide data about their needs, the availability of vacant posts and names of schools identified for placement of TEACH SA Ambassadors. The DBE: Human Resources Chief Directorate will, upon receipt of such information, sent letters to the respective provincial Heads of Departments informing them about placements which had been made. It is further stated, at sub-paragraph 5.1 of the approved memo, that the posts into which the Ambassadors are appointed are substantive, vacant posts by the respective PEDs.
35 The letter of placement which was issued to the applicant on 25 January 2021 makes it clear that the applicant will be placed in a GDE post with the GDE being responsible for payment of his salaries for the duration of his 2 years placement as a TEACH Ambassador.
36 In the instant case, there is overwhelming evidence proving that the GDE was the true employer of the applicant. Even if the 1st respondent could have decided to put the documentary evidence submitted by Mr Masemola in dispute, which is not so in the present case, the existence of the employment relationship between the applicant and the 1st respondent would have been easily determined on the basis of established legal principles identified in State Information Technology Agency (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others , and other similar authorities. In the State Information Technology Agency case, the Labour Appeal Court, 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”.
37 I do not think it is necessary for me to discuss the three criteria identified in the SITA case in any greater detail except to say that all the three criteria are present in the circumstances surrounding the engagement of the applicant. It is my finding that the applicant was an employee of the 1st respondent. The next question is whether the applicant had been dismissed. If yes, whether such dismissal was unfair. Section 186(1) of the LRA, in the relevant parts, defines dismissal as follows:
‘(1) ―Dismissal means that:
(a) an employer has terminated employment with or without notice.
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer-
(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee.
38 To the extent relevant to the present case, in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC), the Labour Court per Basson J, at para 16, said the following about circumstances under which a fixed-term contract of employment may or may not constitutes a dismissal for the purposes of the LRA:
“It is accepted that apart from a resignation by an employee (unless constructive dismissal is claimed consequent to resignation), an employment contract can be terminated in a number of ways which do not constitute a dismissal as defined in section 186(1) of the LRA, and more particularly, in terms of section 186(1)(a). These circumstances include the following: (i) The death of the employee; (ii) The natural expiry of a fixed term employment contract entered into for a specific period, or upon the happening of a particular event, e.g. the conclusion of a project or contract between an employer and a third party. In the first instance, if the fixed term employment contract is, for example, entered into for a period of six months with a contractual stipulation that the contract will automatically terminate on the expiry date, the fixed term employment contract will naturally terminate on such expiry date, and the termination thereof will not (necessarily) (subject to what is stated below in respect of the remedies provided for by the LRA to an employee who has signed such a contract) constitute a “dismissal”, as the termination thereof has not been occasioned by an act of the employer. In other words, the proximate cause of the termination of employment is not an act by the employer. Thus, the contract terminates automatically when the termination date arrives, otherwise, it is no longer a fixed term contract (SA Rugby (Pty) Ltd v CCMA & Others (2006) 27 ILJ 1041 (LC) at 1044 par 6). Furthermore, an employee who has entered into a fixed term employment contract is not without remedy in terms of the LRA or the common law, if the employer unfairly or unlawfully terminates the employment contract of the employee for reasons related to misconduct, incapacity or operational reasons, prior to the natural expiry of the fixed term employment contract.”
39 In casu, it is common cause that the applicant was appointed on a two (2) year fixed-term employment contract commencing on 01 March 2021.The applicant was summarily dismissed with effect from10 January 2022 due to allegations of misconduct and poor work performance. Both the 1st and 2nd respondents did not think it was necessary to follow the due processes which ought to have been followed in such circumstances, probably because of a misunderstanding of circumstances under which a fixed-term contract can be terminated.
40 Consequently, it is my finding that the termination of the applicant’s employment contract constituted a dismissal for the purposes of the LRA. The abrupt and premature termination of the applicant’s services on account of allegations which were not properly investigated and tested render the applicant’s dismissal to be both substantively and procedurally unfair.
QUANTIFICATION OF ARREAR SALARIES
41 According to the salary advise submitted by the applicant, his gross salary was, at the time of his dismissal, R33 323.00 per month. The total arear salary which must be paid to the applicant for the period January 2022 to June 2022 is R199 938.00.
AWARD
42 The respondent is ordered to reinstate the applicant retrospectively from 01 January 2022 with back pay equivalent to six (6) months’ remuneration, amounting R199 938.00. The applicant must be reinstated in the position he held before his dismissal, on terms and conditions not less favourable than those that existed prior to his dismissal.
43 The arrear salary must be paid to the applicant by not later than 30 June 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 July 2022.
44 The applicant must report for duty at Moses Marren Mission Technical Secondary School on 01 July 2022.
MORAKA ABEL MAKGAA
ELRC PANELIST