ELRC754-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD VIRTUALLY VIA ZOOM

Case No: ELRC754-22/23EC

In the matter between

NAPTOSA obo BOTHA, WENDELL Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 20 March 2023

SUMMARY: Clause 69 ELRC Constitution/s33A(2)(a) of the LRA – Non-payment of salary


ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 69 of the ELRC Constitution and section 33A(2)(a) Labour Relations Act 66, 1995, (the LRA). The Applicant, Wendell Botha, was represented by Adv G. D. Saayman, an official of NAPTOSA and the Respondent, Department of Education: Eastern Cape, was represented by Mr Euan Hector, the Labour Relations Manager.

2. The proceedings were held virtually through Zoom on 28 February 2023 and were recorded electronically.

3. Both parties agreed to submit written closing arguments by no later than 7 March 2023 and indeed both parties complied.

ISSUE TO BE DECIDED

4. I am required to determine whether the Applicant was employed by the Respondent, and if so whether the conduct of the Respondent in not paying the Applicant’s salary is in contravention of section 69 of the ELRC Constitution, read with section 33A(2)(a) of the LRA, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

5. The Applicant allegedly started working for the Respondent during November until December 2022, as an Educator at Joubertina Primary School and during the period he was not paid his salary. The Applicant seeks, as a remedy, payment of his salary for the period he worked for the Respondent.

EVIDENCE AND ARGUMENT
Applicant’s Version

6. The Applicant’s version was led through the evidence of two witnesses, Wendell Botha (the Applicant) and Mr Kobus Jacobs, the summary of which is outlined below: -

7. Mr Wendell Botha (the Applicant) testified that he has 25 years teaching experience and holds a 4-year teaching diploma. He never resigned from work but was dismissed from the Western Cape. He worked for the Respondent as a substitute for a teacher that was temporarily incapacitated due to ill-health. The Principal, Mr Jacobs, asked for his documentation and submitted it to the Department of Education. He was told by the Principal and SGB that he would be paid by the Department. He was also required to pay back what the school paid him in the first month of October 2022 because he was not an SGB employee.

8. If he did not go to the school the learners would have sat without a teacher, after being without one for a month. There was community unrest regarding shortage of teachers at the school which led to closure of the school, and departmental officials attended to the issue at the school, although he was not physically present at the time of this unrest. The school (Principal and SGB) told him he would be paid by the department. He was also required to pay back the money that the school paid to him.

9. He stated that the forms were sent on 13 October 2022, his first day at school. The last communication with the department was in December 2022 and the information was that the documentation was in the Costing department. He worked 3 months in the school and he did not resign from employment. He is a qualified teacher and registered with SACE. He left the department due to dismissal not resignation and is eligible for re-appointment 1 year after dismissal. His dismissal was in 2020.

10. He received a letter from the department stating among other things that when he applies for a post he must inform the employer of his dismissal, if he is successful in applying for employment the employer must ask the Treasury to remove the block on PERSAL. If that does not happen, his appointment may be withdrawn. He indicated to the employer that he was dismissed. He was told by the Principal that the post was stopped and he does not know why. He therefore had a reasonable expectation of payment of salary by the department.

11. Under cross-examination he confirmed that he worked from October to December 2022 and was informed by the Principal to commence work. He was told that the authority for the Sarah Baartman District is Mr Godlo. He confirmed he never received an appointment letter but commenced work without any document from the district office. He confirmed that he was paid money from the school’s coffers. He further stated that the money received from the school was a salary advance.

12. Mr Kobus Jacobs, the Principal of Joubertina Primary School testified that last year the school experienced a shortage of teachers which led to unrest as parents were unhappy. The department granted a post to be filled when the Applicant came into the picture. It was a substitute post for Mr Krige who was incapacitated for a long period. There was a person who was supposed to come to the school but never showed up. He asked the Applicant to come so he can be appointed as he knew his capability as time was against him.

13. He submitted forms to the department on 13 October 2022 and did for the second time on 30 November 2022 in CMC Humansdorp. The documents were signed off. He then phoned to check progress with a certain Ms Tebekana. The Applicant was paid by the SGB as the year was ending without anything from the department and they decided to continue with his employment whilst waiting for the department. He was never an employee of the SGB.

14. No EDO said the Applicant must not work. He sent the forms to the department and at the time of the unrest they got Educators and he informed the parents. He also has difficulty getting people on that side of the region. He followed up with the office in Graaff-Reinet and was told there were problems with PERSAL, but nothing came to say if the Applicant was appointed or not. He then told the Applicant they were still waiting. He had believed that ‘Costing’ is the final stage of the application. They filled 2 posts and in the place of Mr Krige a lady was appointed but never showed up. He had attached all the letters from the Western Cape on the application. As SGB they signed no contract with the Applicant. They were given a go-ahead to appoint in Mr Krige’s post but the lady did not show up and he appointed the Applicant because the post was funded.

15. Under cross-examination he stated that the school’s Accounting Officer is the Principal and the District Director is Mr Godlo and that the Applicant was paid a salary from the school’s account and had to pay back. He confirmed that the practice is not allowed and is a transgression. He confirmed that he applied to the department for a substitute post but there was no approval for Mr Botha but he allowed him to work without approval. He further confirmed that the act may be illegal. He stated that he did not follow regulations but acted in the best interests of the child, without authority and confirmed committing a similar act in 2020/21 in the case of Christian Wilson. He confirmed in re-examination that the department approved appointment in Mr Krige’s place and the appointed person did not arrive and had to act in the best interests of the child and that the SGB was never the Applicant’s employer.

16. The argument on behalf of the Applicant was based on the following:

a. That the Applicant is a qualified Educator, and had complied with all requirements for appointment and disclosed the relevant information and had a reasonable expectation that he was employed by Joubertina Primary School.
b. That the PAM document sets the requirements for re-appointment after a break in service as well as justifiable reasons for appointment of temporary educators.
c. The real employer to be determined in terms of the reasoning in Stellenbosch Farmers Winery Group Ltd v Martell & Cie 9 [2003] (1) SA 11 (SCA) at 141 par 5 in relation to credibility of a witness.
d. It is common cause that the Applicant did not enter into a contract of employment with the SGB and had a reasonable expectation of appointment (Malandoh v SABC [1997] 18 ILJ 544 (LC) as well as receiving a salary

Respondent’s Version

17. The Respondent decided not to lead evidence but to argue on the matter, below is the summary of the arguments on behalf of the Respondent:
a. That the appointment of Educators is regulated in section 6 of the Employment of Educators Act 76 of 1998 (the EEA) read with procedure in Chapter B of PAM of 2016.
b. The authority to appoint substitute Educators rests with the District Director of the Sarah Baartman Education District. The Applicant never received a letter oF appointment from the delegated authority since October 2022, a fact confirmed by the Applicant under cross-examination as well as the Principal. The Applicant was therefore not appointed as a substitute Educator for the period October - December 2022.
c. It could be argued that the Applicant was employed by the SGB of the Joubertina Primary School based on the allowance they paid to the Applicant and that the Principal instructed the Applicant to commence work without any letter of appointment by the delegated authority of the district.
d. In Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC) it was held that where an employee assumed duties without written permission from the Department, such assumption of duties would not establish an employment relationship.

ANALYSIS OF SUBMISSIONS

18. Section 69(2) of the ELRC Constitution states that for the purposes of this section 69, a Collective Agreement of the Council is deemed to include:

a. Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and

b. Subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council, where such employee’s employer is a party to the Council.

19. In this matter the dispute centres around appointment of the Applicant as a substitute Educator as well as the salary allegedly due to the Applicant as a consequence of such alleged appointment.

20. It is common cause that the Applicant commenced work at Joubertina Primary School as a substitute for a certain Mr Krige who was incapacitated for a prolonged period. There is no dispute that the Respondent approved appointment for such purposes. It is also not placed in dispute that an appointment of a substitute Educator was made and the appointed Educator did not pitch to commence duties. The Principal then engaged the services of the Applicant, whilst he had sent documents to the District office, applying for the Applicant’s appointment. It is further common cause that the school paid the Applicant an amount in October, which allegedly was an advance to be repaid once the Applicant was paid by the department. It is further common cause that the appointment of the Applicant was not approved by the department due to a block in PERSAL and such was communicated.

21. The Applicant did not receive a letter of appointment from the department through its normal procedures. He further signed no contract of employment with the Respondent and as such there is no employment relationship between the parties.

22. Section 69(2) of the ELRC Constitution provides that a Collective Agreement of the Council includes:

a. Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA.

23. Section 1 of the BCEA states that employee means any person, excluding independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer.
24. There are further requirements for appointment of Educators outlined in the EEA as well as process related requirements in Chapter B of PAM/2016. There was no approval of the Applicant’s appointment by the Respondent. It is the school, through the Principal that allowed the Applicant to work whilst the Respondent had not confirmed appointment. It is further the school that paid an ‘advance’ to the Applicant, not on the instructions of the Respondent but of their own accord.

25. Coming to the argument relating to reasonable expectation it is not clear whether the expectation was that of employment, there was no contract that founded the employment relationship at whatever form. If then the issue is about non-appointment, the Applicant is free to lodge a dispute in relation thereto.

26. The present enquiry relates to the Applicant’s non-payment of salary and in the premises I find that the basic requirement for earning a salary is employment, which the evidence of the Applicant fails to prove that it existed. There is therefore no contract of employment that outlines the basic conditions that the Applicant alleges were breached. In the absence of an employment relationship between the parties, I therefore have no powers to even consider whether a salary was due.

27. I must therefore find that the Applicant has failed to discharge the onus as required in showing that the Respondent employed him and in the circumstances, I make the following ruling:

AWARD

28. There was no employment relationship between the Applicant, Wendell Botha and the Respondent, Department of Education: Eastern Cape.

29. The Applicant, Wendell Botha, is therefore not entitled to a salary as claimed from the Respondent, Department of Education: Eastern Cape.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL