ELRC647-21/22EC

Panelist: Clint Enslin
Case No.: ELRC647-21/22EC
Date of Award: 29 August 2022

In the ARBITRATION between:

Nomphelo Majongile
(Union / Applicant)

and

Department of Education: Eastern Cape
(Respondent)

Applicant’s representative: Mr Bruce Ross
Applicant’s address:

Telephone: 0794927351
Telefax:
Email

Respondent’s representative: Mr Garth Jacobs
Respondent’s address:
Telephone: 0822109646
Telefax:
Email ______________________________________________
DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for a Virtual Arbitration hearing in terms of Section 191 (5) (a) (iii) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution. The Arbitration hearing was held on 21 June, 6 July and 10 August 2022.

2. The Applicant, Ms Nomphelo Majongile, was present and was represented by Mr Bruce Ross, an attorney, from BKG Ross Attorneys. The Respondent, Department of Education - Eastern Cape, was represented by Mr Garth Jacobs, a Deputy Chief Education Specialist, of the Respondent.

ISSUES TO BE DECIDED.

3. I am required to determine whether the dismissal of the Applicant was procedurally and substantively fair, and if not, determine appropriate relief.

BACKGROUND TO THE DISPUTE

4. The parties agreed to the following common cause facts:

4.1 The Applicant received a letter of permanent appointment on 31 March 2021, effective from 1 April 2021.

4.2 The position that she was appointed into was that of a PL 1 educator, at Vulindlela Primary School.

4.3 She performed her duties, in terms of the above-mentioned appointment, from 1 April 2021 to 30 June 2021 and was remunerated for same.

4.4 She received a letter of withdrawal of post, from the Respondent, on 30 June 2021. The said withdrawal being effective from 1 July 2021.

4.5 Both the appointment letter as well as the withdrawal letter were signed by Ms Futshane, the District Director.

4.6 Between July 2018 and her permanent appointment, the Applicant was employed, by the Respondent, on various fixed term contracts. (Not necessarily without any breaks in between.)

4.7 She earned R280 038 per annum, which equates to R23 336.50 per month, during her permanent appointment.

4.8 She was again employed, by the Respondent, as a temporary educator from 6 April 2022 to date. In this position she earns R23 336.50 per month.

4.9 The Applicant was dismissed.

4.10 The Applicant was a previously resigned educator.

4.11 The Applicant’s qualifications as contained in the bundle are accurate.

5. The parties each handed in a bundle of documents. Parties agreed that the documents were what they purported to be. The Applicants bundle will be referred to as “A1” and the Respondent’s bundle as “R1”.

6. The matter was electronically recorded.

7. Both parties submitted written closing arguments.






SURVEY OF EVIDENCE AND ARGUMENT

8. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

RESPONDENT’S CASE

Ms Nomgcobo Futshane

9. Ms Futshane testified that she was the District Director for the Amatole Education West Education District. The Applicant was known to her. The Applicant had resigned on 20 April 2018. She was then appointed as a substitute from 7 June 2018 until 7 August 2018, in place of an educator who was sick. The principal visited the office about a payment issue of the Applicant and it was noticed that they had not complied with the circular 26 of 2018, which states that resigned educators must be approved by the HOD to be appointed back into the system. She was appointed before the circular and they made a submission, which was approved.

10. The Applicant was again appointed, for relief of the same ill educator, from 5 September 2018 until 31 December 2018. The principal met with the District Director and requested another substitute, to replace another sick educator. The Applicant was then appointed from 20 May 2019 until 30 June 2019. She was then again appointed from 1 July 2019 until 30 April 2020, in place of this same ill educator. The Applicant was again appointed as a substitute educator from 11 November 2020 until 2 February 2021.

11. Post level 1 vacancies became available at the school. There is an order of preference when appointing PL 1 educators. This order is that they must first look if there are any additional educators elsewhere that can be placed into the vacant position. If this is not possible they must next look if there are any bursary candidates available. If there are again none, they must look for any self-funded candidates. Only if there are again none available, do they look at previously resigned educators, which must be approved by the HOD.

12. The school recommended the Applicant without following the above preference order and also did not indicate that she was a previously resigned educator. If they had indicated that she was a previously resigned educator, they would have made a submission to the HOD. HR submitted the documents to the District Director with no indication that the Applicant was a previously resigned educator. HR only discovered same whilst capturing the Applicant in the system. HR then brought same to the attention of the District Director.

13. She then invited the Acting Principal, Assistant Director HR, Applicant and Union Representative (SADTU), to a meeting. The Acting Principal did not arrive, but she proceeded to present the findings of the appointment to the Applicant. The Applicant was aware that since 2018 any appointment, such as hers, must be approved by the HOD. She and the former principal had been given a copy of the circular in 2018. She asked the Applicant if she had anything to say and the Applicant replied that she understood and had nothing to say. She confirmed to the Applicant that due to the error, they would need to terminate her employment as there had been no approval for same. Both she and the union indicted that they understood. They were asked if they had any questions or required any clarity, to which they responded that they understood and had not questions.

14. The Applicant was appointed on 1 April 2021. They thereafter discovered the issue pertaining to the lack of HOD approval, due to the Applicant being a previously resigned educator. They held the meeting with her, the union and HR on 30 June 2021. The Applicant was then issued a termination letter, effective from 1 July 2022. The Appointment letter contains a clause that if there are any errors it may be reversed. Pages 36 and 37 of A1 was the appointment letter and page 35 of A1 was the withdrawal letter. During substitute appointments there must be approval for each period of appointment, but the preference order set out previously is not that important. If there is a permanent appointment, it must be shown that the order of preference has been complied with.

15. She did not have the approval of the Superintendent General (HOD) before appointing the Applicant. There had in fact been no submission to the HOD as the school had not indicated that the Applicant was previously resigned educator. They deal with a number of appointments and as such can’t remember same. They rely on the school to inform them. The school was aware of the order of preference and the process surrounding previously resigned educators. Circular 26 of 2018, as contained on page in R1, confirms these requirements. Point 5 of the said circular reads: “Under no circumstances must educators who are returning after a break in service be allowed to assume duty without the necessary prior approval from the Head of Department.” Point 2 of this circular reads; “In considering the re-appointment of educators after a break in service, it must be noted that in terms of the relevant prescripts the Department of Education is obliged to give preference to other applicants who comply with the prescribed requirement for appointment and young entrants to the profession in particular over persons who already had the opportunity for a career in education. It has therefore, become necessary to implement additional control measures with a view to ensuring that the Department fulfils its obligation in this regard.”

16. The letter on page 35 of A1 also refers to a qualification issue. The issue in this regard was that HR had picked up that the Applicant was qualified to teach in a secondary school, as per her primary qualification. Page 41 of A1 indicates that she obtained a Secondary Teachers Diploma, which is for teaching of grades 8 to 12. The Applicant’s advanced certificate on page 43 of A1 was also not for a foundation phase as it would have stated if it was for foundation phase (Grade 1 to 3). The “foundation phase” in brackets on the document was for professional education development. The certificate would have stated if it focused on foundation phase. Appointments are made based on the certificate and not on the statement of symbols.

17. She agreed that she had signed the Applicant’s appointment letter on page 36 and 37 of A1. She further agreed that she had approved the appointment of the Applicant, as per the appointment letter on page 26 of A1. There were officials from HR who were responsible to check same before it was submitted to her. She would then sign off. She did not know the Applicant personally and confirmed that there were numerous employees with the same surname as the Applicant. She knew that the Applicant’s surname was Majongile, as they had both previously been with COSATU, but she did not know her name. Although the Applicant’s contract had been renewed on various occasions previously, she did not know who the Applicant was as she worked with the surname not the name. The documents also did not indicate that the Applicant was a previously resigned educator.

18. She agreed that she was in a position of authority to sign appointment letters. She was given such authority as appointments would have a financial implication. She was not in a position to remember all previously resigned educators. Paragraph 2 of page 36 of A1 confirmed that the employment was subject to the submission of certain documents prior to being allowed to assume duty and in this case the Applicant had in fact assumed duty. The fault did not lay with the Applicant, but rather with the school, however, the department needs to correct same. Even though she had approved the appointment, her approval could not supersede the required approval of the HOD. She had approved the appointment as a PL 1 educator, without the knowledge that the Applicant was a previously resigned educator. Once this became clear, she withdrew the appointment. She denied that due to the previous renewals of the Applicant’s contracts as well as the payment issue in 2018, she knew who the Applicant was and also that she therefore knew that the Applicant was a previously resigned educator. No disciplinary action was taken against herself as once she had become aware of the problem she had withdrawn the appointment and informed the HOD.

19. The appointment letter gets sent to HR to put on the system when the employee assumes duty. Once the employee assume duty, an assumption of duty form is sent for the employee to be placed on the system. It was during this process that the system rejected the Applicant. There also need to be costing and creation of post done by HQ. There are sometimes delays with this. This can take up to a month. In this case it had taken 3 months, but she was not able to give exact details on dates of documents as she was not a HR practitioner.

20. She agreed that the Applicant’s secondary teacher’s diploma constituted a REQV13 qualification and that the Applicant’s advanced certificate upgrades same to a REQV14+. The Applicant had been teaching in foundation phase for approximately 11 years, but this did not take away the fact that her certificates did not qualify her for same. Her advanced certificate was in “professional development” and not in “foundation phase”. Her initial qualification, the secondary teacher diploma, allows her to teach in a high school. It was the responsibility of the department to rectify incorrect appointments no matter how long the educator has taught. It further has an obligation to ensure proper placements in terms of qualification. The Applicant qualifies to be placed in a High School and not a Primary School. Point 2.6 on page 36 of A1 confirmed that in order to qualify as an educator, the person must have a REQV13. Even if the Applicant had the correct qualification, but there was no approval from the HOD, she could not be appointed.

APPLICANT’S CASE

21. The Applicant made the decision not to call any witnesses.


ANALYSIS OF THE EVIDENCE AND ARGUMENT


Substantive issues

Is the Applicant suitably qualified?

22. One of the reasons supplied in the termination/withdrawal letter is that the Applicant lacks the required qualifications for the position she was appointed to, being a foundation phase educator. Point 2.4 the letter contained on page 26 of A1 states that “In order to qualify for appointment as an educator, a person must have a least a recognized 3 year qualification (REQV13) which must include appropriate training as an educator.” (Own underlining.) To my mind, this point clearly sets a minimum qualification requirement for appointment as an educator. From the wording used, it is for any educator post. It is the bear minimum for entry to the profession. It is common cause that the Applicant’s qualifications met this requirement. Where the parties differ, however, is on the point of whether the Applicant’s qualifications qualify her to teach in foundation phase.
23. Ms Futshane testified that the person’s primary (3 year) qualification, must be in foundation phase, whilst the Applicants primary qualification is that of a secondary teacher’s diploma, qualifying her for teaching in a high school. Ms Futshane conceded that the qualification issue was a secondary issue picked up and that the primary issue was the HOD had not approved the appointment. It is clear that the Applicant had been teaching foundation phase on and on and off basis over a number of years. There was some debate as to whether or not the Applicant’s secondary qualification was in foundation phase or not. The question to be answered is, however, how was it possible for the Applicant to be repeatedly appointed to relieve in foundation phase and for her to make it through the appointment process for the position, if she lacked the requisite qualifications? Surly something as glaringly obvious as a qualification that did not comply with requirements would and should have been picked up over the number of years she taught in foundation phase. I believe the concession by Ms Futshane, that this was a secondary issue, and the fact that it is raised as an extra issue in the withdrawal letter indicate that it seems to be a bit of an afterthought. In light of the above, and on a balance of probabilities, I believe that the Respondent was satisfied all along that the Applicant was qualified to teach in foundation phase, or at the very least, that she could do so despite her qualifications. It is important to note that I was not referred to any other documentation or legislation setting out any further requirements, other than REQV 13 as set out in paragraph 22 above. Even if I am wrong in this finding, appointment without proper qualifications would amount to an irregular appointment. Same can only be set aside by a court.

Is the HOD approval required and was it obtained?

24. Circular 26 of 2018, as contained in R1, confirms that when appointing previously resigned educators, the approval of the HOD is required. On the testimony of Ms Futshane, I accept that no such approval of the HOD was obtained. The circular, however, states “Under no circumstances must educators who are returning after a break in service be allowed to assume duty without the necessary prior approval from the Head of Department.” This, to my mind, confirms that the power to appoint such person still lies with the initial party (in this case the District Director), but that they should obtain approval from the HOD before the person assumes duty. If the power to appoint had shifted back to the HOD, there would be no need to obtain the HOD approval prior to assumption of duty as the HOD would be responsible for the appointment itself, which obviously comes before the assumption of duty. I tend to agree that this “warning” to not allow persons to assume duty without such approval is indicative of an understanding that once duty has been assumed, even without the approval, consequences will follow. Remember that in this case the Applicant had in fact assumed duty and had been working in the post for approximately 3 months and was paid for same. The Applicant in all probability adjusted her life on the basis of this appointment. As such parties had acted on the irregular decision.

25. I am further guided on this issue by the Public Service Commission’s (PSC) “Guide to correct irregular appointments”, dated June 2018. It gives a non-exhaustive list of actions and/or omissions that will render an appointment irregular. The last point listed reads as follows; “Actions/decisions that are not in accordance with the delegation of authority.” The irregular appointment and action of the Respondent can only be set aside by a court.

26. Despite the above, I am not empowered to deal with the lawfulness of a dismissal, but rather only the fairness thereof. In this regard I am guided by the LRA as well as various education related legislation and agreements. As stated previously, it was common cause that a dismissal had taken place. The question then remaining is whether such dismissal was fair. The LRA recognizes the following grounds for a dismissal to fair:

26.1 Misconduct of the employee;
26.2 Incapacity (ether ill-health or poor performance) of the employee;
26.3 Operational requirements of the employer.

27. It is to my mind clear that none of the scenarios covered by the LRA, as set out above, find application to this matter. The Applicant was not dismissed for misconduct, incapacity or due to operational requirements. Despite the above, Chapter 4 of the Employment of Educator’s Act, also deals with termination of services. It sets out various situations where the termination of the educator’s services will be justified. The current situation, is to my mind, is also not covered therein. As stated, the Respondent’s representative agreed that the termination of the Applicant’s services amounted to a dismissal. He, however, argued that such dismissal was fair in the circumstances. From the evidence, the dismissal was based on the fact that the appointment was irregular.

28. There is no evidence before me that prior to the decision being made to terminate, any attempt was made to obtain the authorization of the HOD and that having considered same, it was declined. The Applicant was appointed into a position and in fact worked in the said position for approximately 3 months prior to her termination. The Respondent has conceded that any error that may have taken place during the appointment was not the fault of the Applicant. In fact they have placed this blame with the school and their own HR department. Ms Futshane further testified that errors are sometimes only picked up once the employee is loaded on the system, which may take up to a month. In this case, the employee was already employed and working in the position for approximately 3 months.

29. In short there is nothing in front of me to indicate that the termination of the Applicant’s services was based on any of the grounds recognized as valid (substantively fair) in either the LRA or the Employment of Educator’s Act. I am accordingly unable to find that the termination of her services/dismissal was substantively fair. As stated, any issue that may relate to the lawfulness of the termination, is not within my jurisdiction and falls within the jurisdiction of our courts. The Applicant’s representative cited various case law in this regard, which I do not intent repeating. In a nutshell, irregular appointments (which I agree would include erroneous appointments) can only be set aside by a court, unless they are based on misrepresentation or fraudulent conduct by the employee. There is no evidence before me that the Applicant misrepresented anything or committed fraudulent actions of any sort. In fact, as stated previously, the Respondent blamed the situation on the school and its own HR department. The Respondent was therefore, in my view, duty bound to approach a court to set aside its administrative act of appointing the Applicant, if it was of the view that same was erroneously/irregularly done. Her dismissal, in my view, was accordingly substantively unfair.


Procedural fairness.

30. Having determined that the dismissal of the Applicant was not for misconduct, incapacity or operational requirements, their procedural requirements would not find direct application. In my view, the essence of fair procedure before any dismissal is in summary as follows:

30.1 An employee who faces the possibility of having his/her services terminated, for whatever reason, should be informed of the intention to possibly dismiss him/her and be given the reason therefore.

30.2 The employee should be afforded an opportunity to give a response (his/her side).

30.3 The employer should consider any such response before making a decision.

30.4 The employee should be informed of the outcome/decision.

31. In the current matter, the Applicant was informed of the intention and the reason therefore, even if only at the meeting itself. The Applicant was also given an opportunity to respond. Neither she nor the union raised any issues or opted to give a response. She gave no input and as such there would have been nothing from her side for the Respondent to consider. She was informed of the outcome.

32. In light of this, I believe that in the current situation, the Applicant’s dismissal, was procedurally fair.

Calculation of back pay.

33. In calculating back pay I have considered that the Applicant referred her dispute substantially late and was only granted condonation on 13 December 2021. I do not believe the Respondent should be held responsible for delay in the proceedings being finalised as a result of the Applicant’s delay in instituting same.

34. As such I have calculated the back pay, based on the Applicant’s monthly salary and for the period of 13 December 2021 (day condonation was granted) up to and including 5 April 2022 (day before she again started working on a temporary basis at the same salary).

35. The calculation accordingly was done as follows:

Monthly salary (R23 336.50 x 3 months (13 December 2021 to 12 March 2022) = R70 009.50 + Monthly salary (R23 3336.50) / 4.33 (weeks) / 7 (days per week) x 24 (days from 14 March 2022 until 5 April 2022) = R18478.26.

36. Total amount is therefore R70 009.50 + R18478.26 = R88 487.76.


AWARD

37. The dismissal of the Applicant, Ms Nomphelo Majongile was procedurally fair, but substantively unfair.

38. The Respondent, Department of Education – Eastern Cape, is ordered to reinstate the Applicant, Ms Nomphelo Majongile on the same terms and conditions that governed the employment relationship prior to her dismissal, retrospectively with effect from 1 July 2021.

39. As a result of the retrospective reinstatement of the Applicant, the Respondent must pay the Applicant R88 487.76, less normal deductions, in back pay.

40. The Respondent must pay the Applicant the amount set out in paragraph 39 above, less normal deductions, by no later than 31 October 2022.

41. The Respondent must continue to report at her current post, in the interim, until the Respondent informs her where she is required to report as a result of this award. The Respondent must inform her where she is to report by no later than 30 September 2022


Clint Enslin
ELRC Arbitrator