PSES115-18/19WC
Text
ELRC511-21/22WC
Award Date:
28 June 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC511-21/22WC
In the Arbitration matter between:
Wendy Alison Gelderbloem Applicant
and
Western Cape Education Department Respondent
ARBITRATION AWARD
Venue of arbitration: Online (Via Zoom)
Date: 7 December 2021, 24 March 2022, 25 March 2022, 2 May 2022, 18 May 2022, 19 May 2022 and 2 June 2022
Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. Jacques Adams (SADTU Official)
Applicant: Ms. Wendy Alison Gelderbloem
Respondent’s Representative: Ms. Bernadine Noble (Senior Labour Relations Officer)
DETAILS OF HEARING AND REPRESENTATION
[1] An arbitration hearing was conducted on 7 December 2021, 24 March 2022, 25 March 2022, 2 May 2022, 18 May 2022, 19 May 2022 and 2 June 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on the 2 June 2022.
[2] The Applicant, Wendy Alison Gelderbloem, was represented by Mr. J. Adams from South African Democratic Teachers Union (SADTU), a registered trade union. The Respondent, Western Cape Education Department was represented by Ms. B. Noble, the Respondent’s Senior Labour Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.
ISSUE TO BE DECIDED
[4] I am required to determine whether the dismissal of the Applicant was substantively and procedurally fair or unfair, and, if I find that it was unfair, I have to determine the appropriate relief
[5] The Applicant sought to be reinstated retrospectively or alternatively to be compensated.
Issues in dispute
[6] The Applicant challenged the substantive fairness of her dismissal, as well as
procedural fairness. In respect of procedural fairness, the Applicant only challenged
the fact that she was not afforded an opportunity to be heard, before her contract was terminated.
Common cause issues
[7] The following were regarded as common cause between the parties:
a) The Applicant was employed as an Educator at Newton primary school and she was employed on a fixed term contract;
b) She was employed from 1 January 2021;
c) The Applicant earned a salary of R14 101.31 per month;
d) Her working hours were from 07:30 until 13h00;
e) The School Governing Body (SGB) had no powers to dismiss Educators employed by the Western Cape Education Department (WCED);
f) The Applicant was employed by the WCED;
g) Her contract was terminated for reasons related to incapacity;
h) She was dismissed on 30 September 2021.
BACKROUND
[8] The Applicant referred an alleged unfair dismissal dispute to the ELRC (the Council). The arbitration proceedings were conducted over seven (7) days. Both parties submitted heads of argument in writing on 13 June 2022.
SURVEY OF EVIDENCE AND ARGUMENT
[9] The existence of the dismissal was not disputed and as such the Respondent bore the onus in terms of Section 192(2) of the LRA to prove that the dismissal was fair.
[10] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
[11] The Respondent submitted a bundle of documents consisting of 40 pages, numbered from page 1 to 40, which I admitted as Bundle “R” (hereinafter referred to as “R”).
Pages 1 to 26 was submitted at the start of the proceedings on 7 December 2021, while pages 27 to 31 had been submitted later on that day. Pages 36 to 40 was submitted on 18 May 2022.
Mr. Linley Clive Truter testified under oath as follows:
[12] He was employed as the Principal at Newton Primary School. He offered the Applicant a fixed term contract from 1 January 2021 until 30 June 2021. He had a discussion with her during December 2021 and he informed her that he was going to appoint her for a year. The Applicant was in her final year of studies. She was appointed on a salary equal to somebody having a matric qualification. He told her to provide him with her qualification (teachers qualification), the moment she received it. He would then upgrade her salary to the scale of a qualified teacher, after she provided him with her results as proof that she qualified as a teacher.
[13] During April 2021 he asked his secretary to request the Applicant to submit proof of her B-ED (Bachelors in Education) qualification. He had a meeting with the Applicant on 22 April 2021 and she informed him that she did not pass her final year (2020). He asked her why she did not come to her in order to inform him of that. She said she was very busy. He told her that her excuse was lame (inappropriate) as they had conversation during 2020 whereby she was required to provide him with her results, the moment she received it. He informed her that there was a problem as she was not qualified. He told her that she may not continue teaching as she did not possess the necessary (required) qualification.
[14] He referred the matter to the SGB during the first week of the second term. He served as a representative of the WCED on the SGB. He informed the SGB that she never told him that she re-registered on 15 February 2021 for a subject (Language in Education) as she failed that subject. The SGB decided that her contract would not be renewed from 1 July 2021 until 31 December 2021. The Chairperson of the SGB communicated such to the Applicant. Pages 26 to 30 of “R” was the minutes of the discussion they had with the Applicant. He stated that her contract was not terminated on 30 June 2021 as she informed him that there was an automatic extension of the post and she sought assistance from an attorney and her union official.
[15] He informed her that her contract would terminate on 30 June 2021. She told him she was not going anywhere as there was an automatic extension done by the WCED in terms of the post. He enquired from the WCED District Office, as he and the SGB never received any correspondence in respect of an extension of her contract. The District Office mentioned that they received a directive from the Head Office to extent contracts of the educators for reasons related to payments (payroll). The Applicant’s trade union representative had sent an e-mail to Mr. Wyngaard (Recruitment and Selection department). Wyngaard wrote him an e-mail asking that they keep the Applicant at the school until December 2021 to allow her to finish her examination and to be permanently appointed (pages 6, 7 and 8 of “R”). He informed Wyngaard that he was not going to do that.
[16] The Circuit Manager (Mr. Matsau) informed him that there was a directive from the WCED Head Office, which indicated that they (the SGB) had two options. They could terminate the Applicant’s contract with the end date being 30 September 2021, or they could terminate her contract with the end date being 31 December 2021. The SGB decided to terminate her contract with her last day of work being 30 September 2021.
During cross-examination
[17] He was told that the position he promised the Applicant would have been permanent. He stated that he had a discussion with the Applicant during December 2020 where he told her that there was a possibility of an article 6A process. He explained that an article 6A process empowered the Principal and the SGB to make a permanent appointment where a student had been working in a post for two years, without following processes like advertising the vacancy when a vacancy arose. He stated that page 31 of R was entitled circular 0054/2015 and was based on a 6A conversion.
[18] It was put to him that from September 2020 until December 2020 when he met with the Applicant, he created a reasonable expectation to her that she would be permanently appointed in the position. He responded in the negative. He stated that he had a discussion with her during 2020 and he told her that a position would be hers, but he did not tell her that it would be permanent. He stated that the SGB had to write recommendations to the WCED for the appointment of educators.
[19] He stated that the SGB terminated her contract on 30 September 2021 as the WCED gave them the option to do so by either 30 September or 31 December 2021. He stated that her contract was terminated based on a directive from the Head of the Department (HOD) of the WCED. On 23 April 2021 she told him that she failed her fourth year and that she already knew it during December 2020. She told him that she received her results two days before Christmas (23 December 2020).
[20] He was referred to page 18 of “A” as a letter of confirmation of her appointment. It stated the following:
“This letter serves to confirm that Ms. W.A Gelderbloem with identity number … (not mentioned to protect Applicant’s personal information) is employed by the Western Cape Education Department as an Educator at Newton Primary School as from 1 January 2021 until 31 December 2021.
If you need any further information, feel free to contact our Call centre on 0861 92 22 33.
Signed
for Head Education
Date stamped 27 May 2021”
[21] He stated that the WCED automatically extended the Applicant’s contract until 31 December 2021, but neither was he, nor the SGB informed of the extension. He agreed that he appointed the Applicant knowing that she did not yet obtain her qualification. He stated that she was appointed as a student in her final year of studies, which was allowed in terms of the circular (circular 0054/2015). Page 54 of the PAM document, stated under B3.2.2.1 that in order for a person to qualify for appointment as an educator, a person must be registered with SACE (South African Council for Educators). It was put to him that according to Wyngaard, she could have been appointed until the end of December 2021. He stated that he disagreed, as the PAM (Personnel Administrative Measures) document stated under 3.2.2.1 that a person had to be professionally qualified in order to be appointed.
[22] It was put to him that the Applicant failed that subject and she wrote a supplementary examination in January 2021. She failed again and she had to write a Dean’s Examination. She failed it again and she received her results during February 2021. She was advised to re-register for the subject and she wrote her examination during November 2021 and passed it. She received her results on 10 December 2021, which was after her termination. He responded in the positive. He stated that if they did not terminate her services, she would have been in that post, either on contract or permanently. He conceded that the Applicant approached him in January 2021 and informed him that she had to write a supplementary examination. He did not know that she had to do that because she failed the subject during December 2020. She never told him that she had to do it because she failed the subject. He allowed her tie off to go and write the supplementary examination.
[23] He was referred to page 17 of “R” as an e-mail dated 7 April 2021 where it was stated that contracts would be extended automatically until 31 December 2021 in order to alleviate pressure and to ensure that salaries are paid on time. The e-mail further stated that should they disagree with the extension they need to indicate so by 12 April 2021. He stated that he never received the said communication from the Department. He only became aware of it when the Applicant told him of her contract extension. The Applicant was working and she received her salary until 30 September when her contract was terminated. He stated that she was not afforded an opportunity to make representations before her service was terminated, as that was not the procedure that the Department of Education would follow.
Ms. Leezil Laubsher testified under oath as follows:
[24] She was the Chairperson of the SGB of the school. The SGB decided to terminate the Applicant’s contract during a meeting they held. The Applicant was not present during the meeting they held and when that decision was taken by the SGB. The reason for termination was based on the fact that she was not qualified. The Deputy Chairperson of the SGB handed the Applicant a letter on 12 May 2021, informing her that her contract would terminate on 30 June 2021.
During cross-examination
[25] The Applicant worked until 30 September 2021, and she think the reason for that was because they did not have a replacement at that stage and they did not want to disturb the children she was teaching. The Department gave the SGB the option to terminate her contract by either 30 September 2021 or 31 December 2021. They decided to terminate by 30 September 2020, as she was not qualified and they were bombarded by people from outside as the view was that there were other people who were qualified and who could fill the position. People from outside stated that she was there without being qualified. She stated that the WCED acted within its powers when they extended her contract until 31 December 2021.
Mr. Joseph Malusi Matsau testified under oath as follows:
[26] He was employed as Acting Circuit manager. He was informed by the school that the Applicant was nominated as a contract Teacher. According to the SGB, she was dishonest and that was why they have terminated her services. She failed her final year and she was not honest enough to inform the school Principal of that and she therefore did not qualify as a Teacher. The school was supposed to provide his office feedback regarding the automatic extension of her contract, but they failed to do so. He agreed in a meeting held with the SGB that her contract could not be extended if she failed to qualify as a Teacher.
During cross-examination
[27] He agreed that the Applicant was appointed by the Head of Education for one (1) year (page 18 of “A”). It was put to him that she received her qualification during January 2022, but she already passed the subject during December 2021. He stated that the school could have appointed her if she had already received her Diploma (proof of her qualification) during December 2021.
THE APPLICANT’S EVIDENCE AND ARGUMENTS
[28] The Applicant submitted a bundle of documents consisting of 31 pages, numbered from page 1 to 31 and admitted as Bundle “A” (hereinafter referred to as “A”). Pages 1 to 25 was submitted on 7 December 2021 and pages 26 to 31 was submitted on 18 May 2022.
Ms. Wendy Alison Gelderbloem (the Applicant) testified under oath as follows:
[29] During December 2020 she had a meeting with the school Principal (Truter). He told her that she must submit her results the moment she received it and he would convert her to permanent. He explained that she would first be paid a matric salary and when she would submit her results, she would be converted to permanent and would be paid a salary of a permanent educator. When she discovered that she had failed the one subject, she went to Truter during February 2021 for permission to go and re-write based on the Dean’s Examination. Truter asked her to submit her final results as soon as she received it. After she failed the Dean Examination, she re-registered as she wanted to provide him with her pass marks. She did not regard her actions as being honest, as it was not a matter of him asking her if she had pass and she replying in the positive. He asked her to submit her results in 2021 when she received it. He did not provide any time by when she had to submit her results.
[30] She received her results on 10 December 2021. Her contract was from 1 January 2021 until 31 December 2021. She expected to be converted to permanent after receiving her results. Truter called her to his office on 20 April 2021. He told her that he was not aware of her re-doing the subject. He told her she was unqualified and that she was not allowed in the classroom. He told her that her last day would be on 23 April 2021, which was also the last day of the term. The second term started on 3 May 2021. She was absent from 3 May 2021 and she reported for duty on 12 May 2021 as she was booked off sick. She was called into a meeting with the Principal and the day management team of the SGB on that day. They told her that it was discovered that she was not fully qualified and gave her the option of finishing on that same day, or by the end of the term. The Principal called her in his office on a lot of times, asking her about the letters they received from her attorney and the trade union.
[31] They handed her termination letter to her on 31 August 2021 of which her last day of work was on 30 September 2021. She was never provided with an opportunity to explain her side. She still went to the school on 1 October 2021 as it was also the last day of the term (term 3). Her contract was terminated before she could provide her final results. She stated that she was still unemployed and she was indebted with a lot of people due to her contract being terminated. She had to attend stress treatment at the day clinics.
During cross examination
[32] She was informed around 18 or 24 January that she could re-write the subject, but she did not inform Truter, as it was still school holidays at that time. It was put to her that she was aware that Truter wanted her to submit her final results in the first term of 2021. She responded in the negative. She said he told her that she must submit her final results to him in 2021 when she received it. She did not inform the Principal that she had to re-write the subject during January 2021. Truter wanted her to finish on 30 September 2021. She told him that she would report for duty on 1 October 2021 as she did not receive a termination letter from the WCED stating that her services would terminate on 30 September 2021. She went to the school on 1 October 2022 to hand out the report cards to her students. She was paid her full salary until 30 September 2021.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
[33] In terms of Item 2 of the Code of Good Practice on Dismissal “a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment”. The absence of a valid reason for the dismissal is obviously unfair and if the employer fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.
[34] In terms of Item 4(1) of the Code of Good Practice on Dismissal (the Code) an employee should be allowed the opportunity to make representations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Substantive fairness:
[35] It was regarded as common cause by the parties that the Applicant was appointed on a fixed term contract from 1 January 2022. The evidence before me suggest that the Applicant’s fixed term contract of employment was until 31 December 2021. The Applicant’s version is that her fixed term contract was confirmed by the WCED with an end date of 31 December 2021 (page 18 of “A”). Neither this document, nor its contents were disputed by the Respondent. Matsau who testified for the Respondent also agreed during cross-examination that the Applicant was appointed by the Head of Education for a period of one year when he was referred to page 18 of “A”. It is therefore evident that the Applicant’s fixed term contract would have expired on 31 December 2021, if not for the termination and unless she was offered another extension or permanent appointment to the position.
[36] It was regarded as common cause that the applicant’s services had been terminated based on incapacity. The Respondent’s reasons provided for the termination while she was still employed at the school, was that she was unqualified and that she could not remain in the position. That was also the reason provided by the Respondent’s witnesses during the arbitration. The Applicant was appointed to the position knowing that she did not have her formal qualification and that she was in her final year of studies.
[37] The school Principal was aware that she did not pass her examination in December 2020 as he testified that she informed him in February 2021 that she had to re-write the subject. His version that he was not aware that her re-writing the subject was because she had failed the subject, should not stand. The fact is by that time it was evident that she had not obtained her qualification. She continued working as an Educator at the school and she was informed that her services had been terminated effective 30 September 2021.
[38] The evidence placed before me does not suggest that the Applicant was incapacitated to fulfil the completion of her contract date (31 December 2021) as she was appointed on a contract basis, and clearly was her qualification a requirement in respect of permanent appointment to the position. This is also confirmed by the circular 0054/2015 (page 31of “R”) which states the following:
“4.2 the newly qualified educator must:
• be professionally qualified for the education profession;
• meet the inherent requirements of the post to which the appointment will be made; and
• be registered with the South African Council of Educators (SACE)”.
[39] The circular states under bullet point 2 that the appointment of a permanent post is at the discretion of the Head of Education. The Applicant’s version is that the school Principal created a reasonable expectation for permanent employment when he had the discussion with her during 2020. An expectation for permanent employment cannot be created by a person who does not have the authority to make the appointment. The school Principal is not the Head of Education and therefore the discretion as prescribed by the circular did not lie with him. The Applicant’s version in respect of a reasonable expectation for permanent employment should not stand.
[40] The Respondent did not discharge the onus in proving that the termination of the Applicant’s contract of employment on 30 September 2021 was for a fir reason. The fact that the WCED, even after being informed that the Applicant failed her examination and therefore did not obtain her qualification, still gave them the option to either terminate by 30 September or 31 December 2021 also serves as an indication that the WCED still deemed the Applicant fit to continue with her duties until 31 December 2021.
Procedural fairness:
[41] The Applicant’s version is that she was never provided with an opportunity to be heard, before her services was terminated. The Applicant’s version is supported by the evidence of Truter who conceded during cross examination that the Applicant was not afforded an opportunity to make representations before her services was terminated. He stated the reason for that was that it was not the procedure which the WCED would follow. The dismissal of the Applicant was procedurally unfair as she was not afforded an opportunity to make representations, before her services was terminated. There is also no evidence placed before me which indicate that it was not reasonable possible to provide the Applicant with an opportunity to make representations before a final decision was taken to terminate her services.
[42] I find that the Applicant’s dismissal on 30 September, prior to expiry of her contract (31 December 2021) was not for a fair reason and was not effected by a fair procedure being followed.
[43] As a result of the unfair termination of her contract I order compensation equal to four months’ salary, which is calculated as follows:
38.1 R14 101.31 x 3 months’ salary based on the remainder of her fixed term contract, namely October 2021, November 2021 and December 2021 = R14 101.31 x 3 = R42 303.93
Plus
38.2 R14 101.31 x 2 months’ salary based on the procedural unfairness of her dismissal = R14 101.31 x 2 = R28 202.62.
Total = R42 303.93 + R 28 202.62 = R70 506.55
AWARD
[44] The dismissal of the Applicant, Wendy Alison Gelderbloem by the Respondent, Western Cape Education Department was substantively and procedurally unfair.
[45] The Respondent is ordered to pay the Applicant the amount of R 70 506.55 by no later than 15 July 2022.
Signature:
Commissioner: Marlon Plaatjies
Date: 28 June 2022 Place: George
Case No ELRC511-21/22WC
In the Arbitration matter between:
Wendy Alison Gelderbloem Applicant
and
Western Cape Education Department Respondent
ARBITRATION AWARD
Venue of arbitration: Online (Via Zoom)
Date: 7 December 2021, 24 March 2022, 25 March 2022, 2 May 2022, 18 May 2022, 19 May 2022 and 2 June 2022
Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. Jacques Adams (SADTU Official)
Applicant: Ms. Wendy Alison Gelderbloem
Respondent’s Representative: Ms. Bernadine Noble (Senior Labour Relations Officer)
DETAILS OF HEARING AND REPRESENTATION
[1] An arbitration hearing was conducted on 7 December 2021, 24 March 2022, 25 March 2022, 2 May 2022, 18 May 2022, 19 May 2022 and 2 June 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on the 2 June 2022.
[2] The Applicant, Wendy Alison Gelderbloem, was represented by Mr. J. Adams from South African Democratic Teachers Union (SADTU), a registered trade union. The Respondent, Western Cape Education Department was represented by Ms. B. Noble, the Respondent’s Senior Labour Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.
ISSUE TO BE DECIDED
[4] I am required to determine whether the dismissal of the Applicant was substantively and procedurally fair or unfair, and, if I find that it was unfair, I have to determine the appropriate relief
[5] The Applicant sought to be reinstated retrospectively or alternatively to be compensated.
Issues in dispute
[6] The Applicant challenged the substantive fairness of her dismissal, as well as
procedural fairness. In respect of procedural fairness, the Applicant only challenged
the fact that she was not afforded an opportunity to be heard, before her contract was terminated.
Common cause issues
[7] The following were regarded as common cause between the parties:
a) The Applicant was employed as an Educator at Newton primary school and she was employed on a fixed term contract;
b) She was employed from 1 January 2021;
c) The Applicant earned a salary of R14 101.31 per month;
d) Her working hours were from 07:30 until 13h00;
e) The School Governing Body (SGB) had no powers to dismiss Educators employed by the Western Cape Education Department (WCED);
f) The Applicant was employed by the WCED;
g) Her contract was terminated for reasons related to incapacity;
h) She was dismissed on 30 September 2021.
BACKROUND
[8] The Applicant referred an alleged unfair dismissal dispute to the ELRC (the Council). The arbitration proceedings were conducted over seven (7) days. Both parties submitted heads of argument in writing on 13 June 2022.
SURVEY OF EVIDENCE AND ARGUMENT
[9] The existence of the dismissal was not disputed and as such the Respondent bore the onus in terms of Section 192(2) of the LRA to prove that the dismissal was fair.
[10] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).
THE RESPONDENT’S EVIDENCE AND ARGUMENTS
[11] The Respondent submitted a bundle of documents consisting of 40 pages, numbered from page 1 to 40, which I admitted as Bundle “R” (hereinafter referred to as “R”).
Pages 1 to 26 was submitted at the start of the proceedings on 7 December 2021, while pages 27 to 31 had been submitted later on that day. Pages 36 to 40 was submitted on 18 May 2022.
Mr. Linley Clive Truter testified under oath as follows:
[12] He was employed as the Principal at Newton Primary School. He offered the Applicant a fixed term contract from 1 January 2021 until 30 June 2021. He had a discussion with her during December 2021 and he informed her that he was going to appoint her for a year. The Applicant was in her final year of studies. She was appointed on a salary equal to somebody having a matric qualification. He told her to provide him with her qualification (teachers qualification), the moment she received it. He would then upgrade her salary to the scale of a qualified teacher, after she provided him with her results as proof that she qualified as a teacher.
[13] During April 2021 he asked his secretary to request the Applicant to submit proof of her B-ED (Bachelors in Education) qualification. He had a meeting with the Applicant on 22 April 2021 and she informed him that she did not pass her final year (2020). He asked her why she did not come to her in order to inform him of that. She said she was very busy. He told her that her excuse was lame (inappropriate) as they had conversation during 2020 whereby she was required to provide him with her results, the moment she received it. He informed her that there was a problem as she was not qualified. He told her that she may not continue teaching as she did not possess the necessary (required) qualification.
[14] He referred the matter to the SGB during the first week of the second term. He served as a representative of the WCED on the SGB. He informed the SGB that she never told him that she re-registered on 15 February 2021 for a subject (Language in Education) as she failed that subject. The SGB decided that her contract would not be renewed from 1 July 2021 until 31 December 2021. The Chairperson of the SGB communicated such to the Applicant. Pages 26 to 30 of “R” was the minutes of the discussion they had with the Applicant. He stated that her contract was not terminated on 30 June 2021 as she informed him that there was an automatic extension of the post and she sought assistance from an attorney and her union official.
[15] He informed her that her contract would terminate on 30 June 2021. She told him she was not going anywhere as there was an automatic extension done by the WCED in terms of the post. He enquired from the WCED District Office, as he and the SGB never received any correspondence in respect of an extension of her contract. The District Office mentioned that they received a directive from the Head Office to extent contracts of the educators for reasons related to payments (payroll). The Applicant’s trade union representative had sent an e-mail to Mr. Wyngaard (Recruitment and Selection department). Wyngaard wrote him an e-mail asking that they keep the Applicant at the school until December 2021 to allow her to finish her examination and to be permanently appointed (pages 6, 7 and 8 of “R”). He informed Wyngaard that he was not going to do that.
[16] The Circuit Manager (Mr. Matsau) informed him that there was a directive from the WCED Head Office, which indicated that they (the SGB) had two options. They could terminate the Applicant’s contract with the end date being 30 September 2021, or they could terminate her contract with the end date being 31 December 2021. The SGB decided to terminate her contract with her last day of work being 30 September 2021.
During cross-examination
[17] He was told that the position he promised the Applicant would have been permanent. He stated that he had a discussion with the Applicant during December 2020 where he told her that there was a possibility of an article 6A process. He explained that an article 6A process empowered the Principal and the SGB to make a permanent appointment where a student had been working in a post for two years, without following processes like advertising the vacancy when a vacancy arose. He stated that page 31 of R was entitled circular 0054/2015 and was based on a 6A conversion.
[18] It was put to him that from September 2020 until December 2020 when he met with the Applicant, he created a reasonable expectation to her that she would be permanently appointed in the position. He responded in the negative. He stated that he had a discussion with her during 2020 and he told her that a position would be hers, but he did not tell her that it would be permanent. He stated that the SGB had to write recommendations to the WCED for the appointment of educators.
[19] He stated that the SGB terminated her contract on 30 September 2021 as the WCED gave them the option to do so by either 30 September or 31 December 2021. He stated that her contract was terminated based on a directive from the Head of the Department (HOD) of the WCED. On 23 April 2021 she told him that she failed her fourth year and that she already knew it during December 2020. She told him that she received her results two days before Christmas (23 December 2020).
[20] He was referred to page 18 of “A” as a letter of confirmation of her appointment. It stated the following:
“This letter serves to confirm that Ms. W.A Gelderbloem with identity number … (not mentioned to protect Applicant’s personal information) is employed by the Western Cape Education Department as an Educator at Newton Primary School as from 1 January 2021 until 31 December 2021.
If you need any further information, feel free to contact our Call centre on 0861 92 22 33.
Signed
for Head Education
Date stamped 27 May 2021”
[21] He stated that the WCED automatically extended the Applicant’s contract until 31 December 2021, but neither was he, nor the SGB informed of the extension. He agreed that he appointed the Applicant knowing that she did not yet obtain her qualification. He stated that she was appointed as a student in her final year of studies, which was allowed in terms of the circular (circular 0054/2015). Page 54 of the PAM document, stated under B3.2.2.1 that in order for a person to qualify for appointment as an educator, a person must be registered with SACE (South African Council for Educators). It was put to him that according to Wyngaard, she could have been appointed until the end of December 2021. He stated that he disagreed, as the PAM (Personnel Administrative Measures) document stated under 3.2.2.1 that a person had to be professionally qualified in order to be appointed.
[22] It was put to him that the Applicant failed that subject and she wrote a supplementary examination in January 2021. She failed again and she had to write a Dean’s Examination. She failed it again and she received her results during February 2021. She was advised to re-register for the subject and she wrote her examination during November 2021 and passed it. She received her results on 10 December 2021, which was after her termination. He responded in the positive. He stated that if they did not terminate her services, she would have been in that post, either on contract or permanently. He conceded that the Applicant approached him in January 2021 and informed him that she had to write a supplementary examination. He did not know that she had to do that because she failed the subject during December 2020. She never told him that she had to do it because she failed the subject. He allowed her tie off to go and write the supplementary examination.
[23] He was referred to page 17 of “R” as an e-mail dated 7 April 2021 where it was stated that contracts would be extended automatically until 31 December 2021 in order to alleviate pressure and to ensure that salaries are paid on time. The e-mail further stated that should they disagree with the extension they need to indicate so by 12 April 2021. He stated that he never received the said communication from the Department. He only became aware of it when the Applicant told him of her contract extension. The Applicant was working and she received her salary until 30 September when her contract was terminated. He stated that she was not afforded an opportunity to make representations before her service was terminated, as that was not the procedure that the Department of Education would follow.
Ms. Leezil Laubsher testified under oath as follows:
[24] She was the Chairperson of the SGB of the school. The SGB decided to terminate the Applicant’s contract during a meeting they held. The Applicant was not present during the meeting they held and when that decision was taken by the SGB. The reason for termination was based on the fact that she was not qualified. The Deputy Chairperson of the SGB handed the Applicant a letter on 12 May 2021, informing her that her contract would terminate on 30 June 2021.
During cross-examination
[25] The Applicant worked until 30 September 2021, and she think the reason for that was because they did not have a replacement at that stage and they did not want to disturb the children she was teaching. The Department gave the SGB the option to terminate her contract by either 30 September 2021 or 31 December 2021. They decided to terminate by 30 September 2020, as she was not qualified and they were bombarded by people from outside as the view was that there were other people who were qualified and who could fill the position. People from outside stated that she was there without being qualified. She stated that the WCED acted within its powers when they extended her contract until 31 December 2021.
Mr. Joseph Malusi Matsau testified under oath as follows:
[26] He was employed as Acting Circuit manager. He was informed by the school that the Applicant was nominated as a contract Teacher. According to the SGB, she was dishonest and that was why they have terminated her services. She failed her final year and she was not honest enough to inform the school Principal of that and she therefore did not qualify as a Teacher. The school was supposed to provide his office feedback regarding the automatic extension of her contract, but they failed to do so. He agreed in a meeting held with the SGB that her contract could not be extended if she failed to qualify as a Teacher.
During cross-examination
[27] He agreed that the Applicant was appointed by the Head of Education for one (1) year (page 18 of “A”). It was put to him that she received her qualification during January 2022, but she already passed the subject during December 2021. He stated that the school could have appointed her if she had already received her Diploma (proof of her qualification) during December 2021.
THE APPLICANT’S EVIDENCE AND ARGUMENTS
[28] The Applicant submitted a bundle of documents consisting of 31 pages, numbered from page 1 to 31 and admitted as Bundle “A” (hereinafter referred to as “A”). Pages 1 to 25 was submitted on 7 December 2021 and pages 26 to 31 was submitted on 18 May 2022.
Ms. Wendy Alison Gelderbloem (the Applicant) testified under oath as follows:
[29] During December 2020 she had a meeting with the school Principal (Truter). He told her that she must submit her results the moment she received it and he would convert her to permanent. He explained that she would first be paid a matric salary and when she would submit her results, she would be converted to permanent and would be paid a salary of a permanent educator. When she discovered that she had failed the one subject, she went to Truter during February 2021 for permission to go and re-write based on the Dean’s Examination. Truter asked her to submit her final results as soon as she received it. After she failed the Dean Examination, she re-registered as she wanted to provide him with her pass marks. She did not regard her actions as being honest, as it was not a matter of him asking her if she had pass and she replying in the positive. He asked her to submit her results in 2021 when she received it. He did not provide any time by when she had to submit her results.
[30] She received her results on 10 December 2021. Her contract was from 1 January 2021 until 31 December 2021. She expected to be converted to permanent after receiving her results. Truter called her to his office on 20 April 2021. He told her that he was not aware of her re-doing the subject. He told her she was unqualified and that she was not allowed in the classroom. He told her that her last day would be on 23 April 2021, which was also the last day of the term. The second term started on 3 May 2021. She was absent from 3 May 2021 and she reported for duty on 12 May 2021 as she was booked off sick. She was called into a meeting with the Principal and the day management team of the SGB on that day. They told her that it was discovered that she was not fully qualified and gave her the option of finishing on that same day, or by the end of the term. The Principal called her in his office on a lot of times, asking her about the letters they received from her attorney and the trade union.
[31] They handed her termination letter to her on 31 August 2021 of which her last day of work was on 30 September 2021. She was never provided with an opportunity to explain her side. She still went to the school on 1 October 2021 as it was also the last day of the term (term 3). Her contract was terminated before she could provide her final results. She stated that she was still unemployed and she was indebted with a lot of people due to her contract being terminated. She had to attend stress treatment at the day clinics.
During cross examination
[32] She was informed around 18 or 24 January that she could re-write the subject, but she did not inform Truter, as it was still school holidays at that time. It was put to her that she was aware that Truter wanted her to submit her final results in the first term of 2021. She responded in the negative. She said he told her that she must submit her final results to him in 2021 when she received it. She did not inform the Principal that she had to re-write the subject during January 2021. Truter wanted her to finish on 30 September 2021. She told him that she would report for duty on 1 October 2021 as she did not receive a termination letter from the WCED stating that her services would terminate on 30 September 2021. She went to the school on 1 October 2022 to hand out the report cards to her students. She was paid her full salary until 30 September 2021.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
[33] In terms of Item 2 of the Code of Good Practice on Dismissal “a dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure, even if it complies with any notice period in a contract of employment or in legislation governing employment”. The absence of a valid reason for the dismissal is obviously unfair and if the employer fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.
[34] In terms of Item 4(1) of the Code of Good Practice on Dismissal (the Code) an employee should be allowed the opportunity to make representations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Substantive fairness:
[35] It was regarded as common cause by the parties that the Applicant was appointed on a fixed term contract from 1 January 2022. The evidence before me suggest that the Applicant’s fixed term contract of employment was until 31 December 2021. The Applicant’s version is that her fixed term contract was confirmed by the WCED with an end date of 31 December 2021 (page 18 of “A”). Neither this document, nor its contents were disputed by the Respondent. Matsau who testified for the Respondent also agreed during cross-examination that the Applicant was appointed by the Head of Education for a period of one year when he was referred to page 18 of “A”. It is therefore evident that the Applicant’s fixed term contract would have expired on 31 December 2021, if not for the termination and unless she was offered another extension or permanent appointment to the position.
[36] It was regarded as common cause that the applicant’s services had been terminated based on incapacity. The Respondent’s reasons provided for the termination while she was still employed at the school, was that she was unqualified and that she could not remain in the position. That was also the reason provided by the Respondent’s witnesses during the arbitration. The Applicant was appointed to the position knowing that she did not have her formal qualification and that she was in her final year of studies.
[37] The school Principal was aware that she did not pass her examination in December 2020 as he testified that she informed him in February 2021 that she had to re-write the subject. His version that he was not aware that her re-writing the subject was because she had failed the subject, should not stand. The fact is by that time it was evident that she had not obtained her qualification. She continued working as an Educator at the school and she was informed that her services had been terminated effective 30 September 2021.
[38] The evidence placed before me does not suggest that the Applicant was incapacitated to fulfil the completion of her contract date (31 December 2021) as she was appointed on a contract basis, and clearly was her qualification a requirement in respect of permanent appointment to the position. This is also confirmed by the circular 0054/2015 (page 31of “R”) which states the following:
“4.2 the newly qualified educator must:
• be professionally qualified for the education profession;
• meet the inherent requirements of the post to which the appointment will be made; and
• be registered with the South African Council of Educators (SACE)”.
[39] The circular states under bullet point 2 that the appointment of a permanent post is at the discretion of the Head of Education. The Applicant’s version is that the school Principal created a reasonable expectation for permanent employment when he had the discussion with her during 2020. An expectation for permanent employment cannot be created by a person who does not have the authority to make the appointment. The school Principal is not the Head of Education and therefore the discretion as prescribed by the circular did not lie with him. The Applicant’s version in respect of a reasonable expectation for permanent employment should not stand.
[40] The Respondent did not discharge the onus in proving that the termination of the Applicant’s contract of employment on 30 September 2021 was for a fir reason. The fact that the WCED, even after being informed that the Applicant failed her examination and therefore did not obtain her qualification, still gave them the option to either terminate by 30 September or 31 December 2021 also serves as an indication that the WCED still deemed the Applicant fit to continue with her duties until 31 December 2021.
Procedural fairness:
[41] The Applicant’s version is that she was never provided with an opportunity to be heard, before her services was terminated. The Applicant’s version is supported by the evidence of Truter who conceded during cross examination that the Applicant was not afforded an opportunity to make representations before her services was terminated. He stated the reason for that was that it was not the procedure which the WCED would follow. The dismissal of the Applicant was procedurally unfair as she was not afforded an opportunity to make representations, before her services was terminated. There is also no evidence placed before me which indicate that it was not reasonable possible to provide the Applicant with an opportunity to make representations before a final decision was taken to terminate her services.
[42] I find that the Applicant’s dismissal on 30 September, prior to expiry of her contract (31 December 2021) was not for a fair reason and was not effected by a fair procedure being followed.
[43] As a result of the unfair termination of her contract I order compensation equal to four months’ salary, which is calculated as follows:
38.1 R14 101.31 x 3 months’ salary based on the remainder of her fixed term contract, namely October 2021, November 2021 and December 2021 = R14 101.31 x 3 = R42 303.93
Plus
38.2 R14 101.31 x 2 months’ salary based on the procedural unfairness of her dismissal = R14 101.31 x 2 = R28 202.62.
Total = R42 303.93 + R 28 202.62 = R70 506.55
AWARD
[44] The dismissal of the Applicant, Wendy Alison Gelderbloem by the Respondent, Western Cape Education Department was substantively and procedurally unfair.
[45] The Respondent is ordered to pay the Applicant the amount of R 70 506.55 by no later than 15 July 2022.
Signature:
Commissioner: Marlon Plaatjies
Date: 28 June 2022 Place: George