ELRC575-21/22GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)

(GAUTENG PROVINCE)

AWARD


Commissioner: Amos Mthimunye
Case No. ELRC575-21/22GP
Date of the Award: 23 August 2022


IN THE DISPUTE BETWEEN:

PSA obo MATOME JOEL MAAKE APPLICANT

and

GAUTENG DEPARTMENT RESPONDENT
OF EDUCATION

DETAILS OF HEARING AND REPRESENTATION
[1] This was arbitration process set down for hearing at 09h0 on 20 and 21 April 2022, 01 July 2022, 08 and 11 August 2022 at the premises of the respondent at No. 265 Pretorius Street, President Towers Building, Pretoria. The applicant, MATOME JOEL MAAKE, was present and represented by Mr Thabo Thobakgale while the respondent, GAUTENG DEPARTMENT OF EDUCATION was represented by Mr Leka Magodielo (official).
[2] Both parties handed in bundles of documents which were accepted and marked “A” and “R”.
[3] The proceedings were digitally recorded and handwritten notes were also taken.

BACKGROUND TO THE DISPUTE
[4] The applicant was employed by the respondent as Educator. He earned a basic a salary of R23 300.00 per month. The respondent employed him on a fixed term contract for a period from 01 August 2021 to 31 December 2021. The respondent terminated his services on 12 October 2021. He is seeking compensation as a form of relief. The respondent is a public school of learning.
[5] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995 (hereinafter referred to as LRA).
[6] The applicant is challenging both the procedural and substantive fairness of his dismissal.
Common cause issues
[7] The respondent employed the applicant on a fixed term contract at Lyttelton Primary School for a period from 01 August 2021 to 31 December 2021.
[8] The respondent did not subject the applicant to a disciplinary hearing but dismissed the applicant by means of a letter dated 11 October 2021.
[9] The respondent stated the reasons for termination in its letter dated 11 October 2021.
[10] The respondent served the applicant with a letter of termination dated 11 October 2021.
[11] The respondent terminated the employment relationship with the applicant without any formal hearing.
[12] The applicant did not disclose to the respondent in the application for employment that he was previously dismissed for misconduct.
[13] The applicant was required as per the application form for employment (GDE 1) at paragraph 22 to disclose any record of previous dismissal for misconduct.
[14] The respondent did not pay the applicant salary for a period from 01 August 2021 to 12 October 2021.
Issues in dispute
[15] The respondent head-hunted the applicant to be employed in a post at Lyttelton Primary School.
[16] The dismissal of the applicant was substantively unfair.

ISSUE TO BE DECIDED
[17] Whether the dismissal of the applicant by the respondent was unfair.
[18] Appropriate relief, if any.

SURVEY OF EVIDENCE AND ARGUMENT
The respondent’s case
[19] The respondent’s witness, Mrs Masingoaneng Dorothy Roberts testified under oath that she is employed by the respondent as the principal at Lyttelton Primary School. She knows the applicant as the former employee at Lyttelton Primary School.
[20] The school needed an Afrikaans Educator. She sent a requisition to the District Office of the respondent, Gauteng Department of Education. On 22 July 2021 the district office, through Mr Thabo Nkosi sent her the Fundza Bursary List. The applicant’s name appeared in the list. She checked from the said list a suitable candidate the school was looking for. She found that the applicant was the suitable candidate.
[21] She phoned the applicant to enquire whether he was interested and available. The applicant confirmed that he was interested and available to occupy the post. She told the applicant that the post was for temporary employment. The applicant was at that stage employed as Educator by the Department of Education Northern Province. The applicant requested her to issue him with a letter of appointment as Educator at Lyttelton Primary School. She told the applicant that she does not have powers to do so but that only the respondent could issue such letter. The applicant resigned from the said school to work at Lyttelton Primary School.
[22] The applicant commenced work for Lyttelton Primary School. The District office delayed to pay his salary for August 2021. She loaned the applicant an amount of R3 000.00 which the applicant paid back later when the SGB of the school paid his salary as follows: R15 564.32 on 21 August 2021 and R8 893.92 on 21 October 2021. The reasons SGB paid the applicant was because the applicant approached and told her that he did not have money to pay rent or accommodation and other personal necessities.
[23] She enquired several times from the respondent’s District Office because the applicant’s salary was delayed. The HR officials gave her several different answers. During September / October 2021 school holidays she went to the District office to enquire about the applicant’s salary delay. An official by the name of Thembi told her that the reason why there was a delay to pay the applicant’s salary was because there was a Persal restriction on the applicant’s name in the system. Thembi told her that the restriction was caused by the fact that the applicant was previously employed by Education Department of Limpopo Province and was dismissed for misconduct.
[24] She informed the SGB about the applicant’s matter. The SGB reached a decision to terminate the applicant’s services. She drafted a letter of termination dated 11 October 2021. The letter was signed by her and the Chairperson of the SGB. The SGB wrote a letter to the district office of the respondent to withdraw its recommendation to appoint the applicant to a position of Afrikaans Educator at Lyttelton Primary School.
[25] She told the applicant that the school could not allow him to be employed as an Educator because he was previously dismissed for misconduct. She also told the applicant that respondent could not employ him because of the Persal restriction on his name and / or because of the previous dismissal record for misconduct. The school could not allow the applicant to stand in front of the learners whilst he still had a record of misconduct and / or that he did not have a clearance letter in this regard.
[26] The respondent’s witness, Mr Thabiso Mphosi testified under oath that he is employed by the respondent as Assistant Director Human Resource Provisioning. His job responsibilities are to oversee the recruitment and selection in the filling of posts for the office and the schools.
[27] The process of appointing Educators on temporary posts for the schools is that the school will declare a post and furnish its needs to the district office Gauteng Department of Education. The office will check from the Fundza list if they can find an Educator that suits the needs of the school. If they cannot find the Educator, they look at the Unemployment Database list.
[28] If a suitable Educator is available, they will refer him / her to the said school. If the school is satisfied that it has found a suitable Educator, the school and the School Governing Body (SGB) will seek permission to appoint the Educator. The process of appointing an Educator will take place.
[29] He referred to a letter on page 2 of bundle “R” which he prepared and signed. The letter was granting Lyttelton Primary School permission that the applicant can assume duty as a Temporary Educator at the school. The letter authorised the school that the applicant should assume duty on 01 August 2021 until period ending 31 December 2021.
[30] The GDE issued permission to resume duty in order to ensure that the learners continue to receive education. The appointment of the applicant was dependent upon the outcome of the verification process. The form GDE 1 was the statement that talked to the verification process. The applicant was in the meantime allowed to continue to render services as an Educator in the classroom.
[31] During the verification process it was established that the applicant had completed GDE 1 form but failed to declare information that relates to his previous termination of service as a result of misconduct. The DGE 1 form required that such information be disclosed. The applicant did not disclose that he had a previous record of misconduct.
[32] In the system there was a Persal block in the applicant’s name. Information revealed that the block was caused by the fact that the applicant was previously employed by the Department Education Limpopo as an Educator and his services were terminated due to misconduct.
[33] On 12 October 2021 the respondent communicated the information about the applicant’s Persal to the Principal of Lyttelton Primary School. The respondent told the School Principal that it cannot continue to keep the applicant as an Educator at the school because of the Persal block. The Persal block does not allow the respondent to pay the applicant salary.
[34] The conduct of the applicant to give false information in the GDE 1 form made the respondent not to trust him anymore. The respondent could not afford to have an Educator who was not trustworthy to stand in front of the learners. Hence the applicants’ services were terminated.
[35] When the respondent gave permission to the school that the applicant resumes duty, they were not aware that the applicant had a previous record of misconduct and that he was dismissed. The respondent would have assisted the applicant to remove the Persal block had he disclosed this information in the GDE 1 form.

The applicants’ case
[36] The applicant, Mr Matome Joel Maake testified under oath that on 22 July 2021 the Principal of Lyttelton Primary School phoned and told him to come to the school to complete forms for employment in order to start working on 26 July 2021.
[37] He did not apply for the post at Lyttelton Primary School. The principal told him that she got his details / information from Fundza Lushaka Bursary List. It surprised him because he completed his education qualifications long time ago before Fundza Lushaka Bursary came into place. He did not know the principal and the school he wanted to verify the existence of the school.
[38] On 23 July 2022 he sent a text message to the principal informing her that he was interested to come and work at the school but that he could not avail himself immediately to assume duty. He requested that he be afforded time to complete work with his then employer. He resigned from his previous employer, the Eastern Cape Department of Education on 30 July 2021.
[39] The Principal told him that she was going to consult the School Management Team (SMT) and revert to him. A week later the principal reverted to him and sent him GDE forms to complete. He completed the forms and sent them back to the principal. He requested the principal to send him a confirmation letter that he has been employed. The principal told him that he will get it from the respondent.
[40] He assumed duties on 02 August 2021. He was contracted to work for a period from 01 August 2021 to 31 December 2021. He however worked until 12 October 2021.
[41] He knows about the DGE1 form Application for contract (Temporary) appointment. He completed the form before he assumed duty at Lyttelton Primary School. At paragraph 22 on the form, he marked the answer “No” to a question “Have you been dismissed due to misconduct?” He was previously employed by the Department of Education Limpopo and was dismissed in 2010 for misconduct relating to abscondment.
[42] During 2011 he phoned the ELRC and told them about his predicament. The ELRC advised him that he can apply for a post but that he should disclose about the dismissal. He applied at Subia Combined School and was employed for a period 01 June 2011 to September 2011. There was a delay of payment of his salary. He enquired what could be the problem. He was advised to disclose the record of dismissal for misconduct. He disclosed and he was paid salary on Persal until the end of the contract of employment.
[42] During the following period he was employed as an Educator at the following schools:
The period October to December 2011 at Malisa Primary School, in Limpopo Province.
The period February to December 2012 at Greenside Primary School, in Limpopo Province.
The period January to December 2013 at the Northern Cape Province.
The period February to December 2014 at the Limpopo Province.
The period 2015 to 2021 he was self-employed.
[42] During 2015 he applied for the record of misconduct to be expunged. During this period, he was not aware that Lyttelton Primary School would be interested in his services. He made the application for expungement in order to be in good standing with the Department of Education. The application was declined. He kept on making enquiries until he learned about the new changes introduced in the Government Gazette No. 44433 Volume 6, dated 09 April 2021. During this period he was still not aware that Lyttelton Primary School would be interested in his services.
[43] On 21 July 2021 he applied to the Head of Department Limpopo Department of Education for pardon and reinstatement. The department did not respond to his letter. He made telephonic enquiries but was told that the official who dealt with the matter was on sick leave.
[44] One day the Department of Education Limpopo told him that the response to his letter was available and that he should come and fetch it. He was employed by the respondent during that period. He did not disclose to the respondent that there was a pending letter from Limpopo Education Department.
[45] On 08 October 2021 the principal phoned and told him that he was no longer an employee of the school because of the previous record of misconduct. On 08 October 2021 Ms Thembi Khoza him and he told Ms Khoza that he will avail the letter from Education Department Limpopo within a week. The respondent terminated his services before he could avail the letter.
[46] He read into record a letter from Lyttelton Primary School dated 11 October 2021. The letter was signed by the School Principal and the SGB Chairperson. The letter was meant to terminate his services as an Educator at Lyttelton Primary School. The Principal and the Chairperson dismissed him. The principal did not comply with paragraph 4.4 of the Government Gazette No. 44433 Volume 6, dated 09 April 2021. If the Principal complied, he would not have referred a dispute of unfair dismissal. Clause 14(1)(a) Government Gazette No. 44433 Volume 6 dated 09 April 2021 applies to him. He had already served a period of more than one (01) year.
[47] He had suffered prejudice as a result of the unfair dismissal. He used to live on handouts and donations from other people because his contract of employment was terminated before its time of expiry. The principal had told him that the post was permanent because the incumbent of the post was deceased. He had hopes that he would stay in the post and be employed permanent. He therefore bought a vehicle and could not afford to pay it because his services were terminated.

ANALYSIS OF EVIDENCE AND ARGUMENT
[41] Section 192(2) of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) states: “if the existence of the dismissal is established, the employer must prove that the dismissal is fair. In order for a dismissal to be considered fair, it must be effected in terms of Section 188(1) & (2) of the LRA”.
[42] The applicant challenged both the procedural and substantive fairness of his dismissal.

Procedural and substantive fairness of the dismissal
[43] All the issues were common cause. The respondent did not dispute that it did not follow a fair procedure to terminate the applicant’s services. Thus both parties did not lead evidence in this regard.
[44] The question is whether it was fair or unfair for the respondent not to subject the applicant to a formal disciplinary hearing. In order to determine whether or not it was fair for the respondent not to hold a formal enquiry before it terminated the relationship with the applicant I considered the whole evidence led by the parties.
[45] It was common cause that the applicant completed application forms for employment. It was common cause that it was required of the applicant in paragraph 22 of the application forms to disclose that he was dismissed for a previous misconduct. It was further common cause that the applicant did not disclose such information.
[46] Evidence was led that the DGE1 Application for contract (temporary) appointment has a declaration clause. The applicant signed a declaration to the effect that the information he provided was true and correct. In the event he provided false information such would lead to his application being disqualified or he be discharged on account of misconduct.
[47] The respondent terminated the applicant’s services summarily without subjecting him to a disciplinary enquiry. The respondent led evidence that it terminated the applicant’s services as a Temporary Educator because the applicant had a Persal restriction or blockage on his Persal number because of the record of previous misconduct. The respondent’s evidence was further that the applicant’s salary could not be paid due to the Persal restriction.
[48] The respondent led evidence through its witness, Mr Thabiso Mphosi that it could allow the applicant to continue teaching the learners in the classroom because of being dishonest in that he failed to disclose the information about his previous record of misconduct. If the respondent were to subject the applicant to a disciplinary hearing it meant that it should have allowed him to continue to teach the learners in the classroom. The respondent did not see that as being fair on its side. Thus, it dismissed the applicant with immediate effect.
[49] The respondent also led evidence which the applicant did not dispute or contest that the respondent would not be able to pay the applicant’s salary through Persal system because of the Persal restriction. This was another form of justification the respondent provided to dismiss the applicant summarily without subjecting him to a disciplinary hearing.
[50] The question I must determine is whether it was fair or unfair for the respondent to dismiss the applicant without subjecting him to a disciplinary hearing. Having regard to the circumstances of the case, that the respondent employed the applicant for a fixed term period of five (05) months and that the contract period was running a third month, and that the respondent could not pay the applicant’s salary because of Persal restriction and that it could not allow the applicant to teach the learners because of being dishonest, was in my view a reasonable justification not to go through a process of disciplinary hearing.
[51] The law does allow for summary dismissal in certain circumstances. The issue of dishonesty played a crucial role in that the respondent led testimony that the applicant could not be trusted anymore. The respondent relied on the information provided by the applicant that showed that the respondent trusted that the applicant provided them with truthful information about his previous employment history. Evidence showed that the applicant breached that trust.
[52] Evidence showed that all this information about the applicant’s history of previous employment came out as a result of a verification process. The respondent led evidence to show that the permission it granted to the school to allow the applicant to resume duty was dependent on the outcome of the verification process. Since the applicant failed the verification process, the respondent invoked its rights to terminate the contract of employment. This in my view was another reasonable justification on the respondent not to subject the applicant to a disciplinary hearing.
[53] Evidence led showed that the letter issued by the respondent authorising the Lyttelton Primary School to allow the applicant to resume duty did not serve to confirm that the applicant was appointed as Educator for that fixed term period. The authorisation clearly mentions in the last paragraph that an official letter of appointment will be issued in due course, signed by the District Director. Evidence was led further that the Director did not issue the appointment letter because of the negative outcome of the verification process. The applicant did not contest this evidence.
[54] It was clear from the evidence led by both parties that the respondent did not in fact appoint the applicant as Educator but that it gave authorisation or permission to the school to allow the applicant to resume duty pending the verification process. The appointment was dependent on the outcome of the verification process. Therefore, evidence was very clear that the respondent did commence the process of appointing the applicant to a fixed term contract of employment for the period 01 August 2021 to 31 December 2021. This process was interrupted by the negative outcome of the verification process.
[55] In light of the evidence herein above it was clear that under the context in which the respondent employed the applicant, such employment was still to be confirmed upon completion of the verification process. Evidence was led that the school could not afford to have learners wait for the verification process outcome but that the school had to get permission to allow the applicant to render service pending the outcome of the verification process.
[56] The applicant was indeed an employee of the respondent. The school or the principal or the SGB did not in fact employ the applicant. The employer was the Gauteng Department of Education (GDE). Evidence showed that the GDE has the powers to decide about the termination of service. The school, or principal or SGB did not have powers to terminate or dismiss the applicant. This leads me to enquire whether it was the school or the principal or the SGB that dismissed the applicant. The applicant argued that he was dismissed by the school or the principal and / or the SGB and that the dismissal was unfair since they do not have powers.
[57] Evidence led by the respondent clearly showed that the principal and the chairperson of the SGB wrote a letter dated 11 October 2022 to the applicant advising him that the SGB has withdrawn its recommendation to appoint him to the post PL1 Afrikaans Educator at Lyttelton Primary School. It is clear from the contents of this letter that the SGB did not terminate the applicant’s services, nor did it terminate a contract of employment with the applicant. The applicant’s argument that withdrawal of a recommendation was dismissal cannot in my view be correct. The withdrawal of a recommendation by the SGB was not a dismissal. The withdrawal of a recommendation cannot be equated to dismissal. Thus, I was not persuaded by the argument that the school or the principal and / or the SGB wrongfully, unlawfully and unfairly dismissed the applicant. There was no evidence shown by the applicant that the principal or the chairperson of the SGB dismissed him.
[58] The respondent’s failure to subject the applicant to a disciplinary hearing was in view an option that was fair as it was clear from their evidence that the respondent had to act immediately. It would have been unfair to expect the respondent to allow the applicant to stand in front of the learners and teach them without knowing what he was dismissed for by the Limpopo Province Department of Education. It would also have been unfair to expect the applicant to render services and not be paid salary because there was a restriction or blockage in his Persal number. This fact was consistent with the fact that the respondent did not pay salary to the applicant for a period 01 August 2021 to 12 October 2021.
[59] I must say that having regard to the evidence in its totality before me, the respondent has succeeded to discharge the onus of proof that it dismissed the applicant for a fair reason. The applicant did not contest the evidence of the respondent that had it not been the misrepresentation he committed when he completed the GDE 1 application forms his services would not have been terminated.
[60] It was undisputed evidence that paragraph 22 of the application form required documents be attached to the forms if the applicant has answered in the positive that he was indeed previously dismissed for misconduct. The applicant did not challenge the evidence of the respondent’s witnesses that had he disclosed that he was previously dismissed they would not have terminated his services but would instead have tried to assist him to get clearance letter as confirmation that he was eligible for re-employment as envisaged in Government Gazette 44433 of 09 April 2021. The respondent tendered in evidence a letter dated 19 October 2021. This letter was from the Supt. General Limpopo Education Department addressed to the Director HR Administration Services requesting the unblocking in the applicant’s Persal number in order to make him legible for re-employment.
[61] The applicant’s argument that he automatically qualified in terms of the above-mentioned Government Gazette does not in my view hold water. The fact of the matter is that the applicant was disqualified because of the verification process and by the fact that he gave false information in the GDE 1 Application form. The declaration also disqualified him because he understood that he was required to declare truthful information. The applicant was in my view a creature of his own misfortune by failing the verification process and the fact that he declared false information in the DGE1 application form.
[62] It was therefore clear from the evidence herein above that the applicant was prior to 01 August 2021 even as on 12 October 2021 not legible for employment. Evidence shows that the applicant has misled the respondent into believing that he was legible for employment whereas in fact he was not legible. It was clear from the evidence provided by the respondent that the reason for dismissing the applicant was because of the verification process outcome and the fact that the applicant did not declare truthful information in the GDE 1 application form, and that the respondent was unable to pay his salary because of the Persal restriction. All these reasons are known to be a fact by the applicant, and he did not dispute and / or contest same.
[63] In light of the evidence herein above I concluded that the respondent succeeded to discharge the onus of proof that the dismissal of the applicant was for a fair reason. It would have been unfair on the one hand to expect the applicant to continue render service without getting remuneration because of the Persal restriction. It would have been unfair on the other hand to expect the respondent to continue to keep the applicant as an Educator at the school when in fact he showed the respondent that he was not trustworthy, and that the restriction was still on his Persal and had not been removed.
[64] The applicant’s argument that he applied that the restriction be removed and that same was indeed removed did not sustain because the restriction was removed after the respondent had already dismissed him. The applicant’s argument that had the respondent given him an opportunity to be heard it would not have dismissed him also did not sustain because the duty was on him to disclose the correct and truthful information to the respondent about his previous record of employment. The applicant cannot shift blame to the respondent because the respondent did not know that he was previously employed and dismissed for misconduct. The duty squarely lied on his shoulders to disclose the correct and truthful information about himself.
[65] It was undisputed evidence that the applicant was one of the Educators who was regarded as having scarce skills. The respondent and the SGB of Lyttelton Primary School had an obligation to ensure that the Learners did not suffer in that they would be deprived their rights to learning. They had to act immediately and address the problem. It would have been unfair to expect the respondent and the SGB of the school to wait for the process of taking disciplinary steps to unfold.
[66] The evidence and arguments that the respondent head-hunted the applicant and / or that the applicant was sourced from Fundza Bursary List and / or the List of the unemployed Educators was not relevant to the determination of the fairness of the dismissal. Whether the applicant applied or did not apply for the post or that he was head-by the principal of the school did not assist in the determination of the fairness of his dismissal. This evidence was in my view irrelevant to the determination of the fairness of the dismissal of the applicant.
[67] It was common cause that the respondent did not pay the applicant his salary for a period 01 August 2021 to 12 October 2021. The applicant did not dispute and / or challenge the evidence of the school principal, Mrs Roberts that the SGB paid him salary for the months ending August and September 2021. Since the applicant did not dispute and / or challenge the evidence of the respondent in this regard, and the fact that the applicant did not lead evidence in relation to the statutory payments claim I could not find that there were any outstanding statutory payments unpaid and / or owed to the applicant.
[68] In light of the evidence herein above I conclude that the respondent succeeded to discharge the onus of proof that the dismissal of the applicant was both procedurally and substantively fair.
[69] The applicant sought compensation as a form of relief. I did not find any reason to award the applicant any relief.

AWARD
[70] The respondent, GAUTENG DEPARTMENT OF EDUCATION has succeeded to discharge the onus of proof that the dismissal of the applicant, MATOME JOEL MAAKE, was both procedurally and substantively fair.
[71] The dismissal of the applicant, MATOME JOEL MAAKE, by the respondent, GAUTENG DEPARTMENT OF EDUCATION was both procedurally and substantively fair.

Amos Mthimunye
EDUCATION SECTOR