ELRC687-20/21NW

Panellist: Themba Manganyi
Case No.: ELRC687-20/21NW
Date of Hearing: 05 June 2023
Date of Arguments: 12 June 2023
Date of Award: 25 June 2023

In the Arbitration Hearing between

DINEO VIVIAN MOABI Applicant

and

DEPARTMENT OF EDUCATION – NORTH WEST Respondent

Applicant’s representative: Mr Ofentse Kgabo from Kgabo Attorneys

Respondents’ representative: Mr Martin Keetile

Details of hearing and representation

1. This is an arbitration award issued in term of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended. The arbitration proceedings were conducted on 05 June 2023 at Mahikeng, Department of Education – North West under the auspices of the Education Labour Relations Council (“the Council”).

2. Mr Ofentse Kgabo (“Kgabo”), from Kgabo Attorneys, represented the Applicant, Ms Dineo Vivian Moabi (“Moabi”) and Mr Martin Keetile (“Keetile”), the Labour Relations Officer, represented the Respondent, Department of Education – North West. Mr Herbert Matsenene, an Interpreter from the Council, assisted with interpretation services.

3. Parties submitted bundles of documents into the record and only the Applicant and her witness testified in these proceedings and they were subjected to cross-examination. The Applicant’s bundle was marked as Bundle A and the Respondent’s bundle was marked as Bundle R. At the end of the proceedings, parties elected to submit their heads of arguments in writing on or before 12 June 2023 and they duly complied. I took handwritten notes and recorded the proceedings digitally. The records thereof were retained by the Council.

Issue/s to be decided

4. I am enjoined in these proceedings to determine whether the Applicant was dismissed.

5. In the event that I find that the Applicant succeeded to establish the existence of a dismissal, I would be required to determine whether the dismissal was procedurally and / or substantively fair.

6. If I find that the dismissal was unfair, I would be required to determine the appropriate relief.
Background

7. Moabi was employed on a twelve (12) months’ fixed term contract (the FTC”) as a Grade R educator on 12 January 2011 at Thebeyame Primary School. In terms of her FTC, it was required that Annexure D form be completed on an annual basis for her contract to be renewed. Her FTC was renewed on subsequent years in January. However, in January 2016 Annexure D form was not completed. Instead, she received a letter from Dr Ruth Segomotsi Mompati District Office converting her FTC to a permanent contract of employment with effect from 01 July 2016.

8. When the schools reopened in January 2020, the Principal informed Moabi that her FTC has been terminated. Moabi received a letter dated 23 March 2020 informing her that temporary services have been terminated on 31 December 2019. At the time of her termination, she earned R15 581, 25 per month. The Respondent contended that there was no dismissal, but that her FTC came to an end. The Respondent further contended that Moabi was well aware that she was not academically qualified to teach, as the credits of her qualifications were lower than required credits. Moabi sought re-employment from the date of her termination and twelve (12) months’ salary in backpay.

Survey of evidence and arguments

9. Section 192(1) of the LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Section 192(2) of the LRA provides if the existence of the dismissal is established, the employer must prove that the dismissal is fair. Since the existence of a dismissal is in dispute, it follows that the Applicant is burdened with the onus to establish the existence of the dismissal. Thus, a duty to begin.

The Applicant’s evidence and arguments

10. Moabi testified under oath and in brief she stated that she was employed on a temporary basis at Thebeyame Primary School on 13 January 2011 as a Grade R educator and that her contract was for twelve (12) months. She testified that she received a letter confirming that she was converted to a permanent employment capacity with effect from 01 July 2016. She stated that from the year 2016, she did not receive Annexure D form that was completed for educators who are employed on temporary basis. She submitted that the Principal, Ms Sekitlane Matloa (“Matloa”), informed her on 13 January 2020 that her services were terminated because she did not have the required qualifications. She stated that she received her termination letter on 15 May 2020 from Adv. Tshetlho, who was representing the Respondent. She testified that there was no process that was followed before she could be terminated.

11. Under cross-examination, she confirmed that an educator must be qualified in order to be employed on a permanent basis. She confirmed that an educator must be registered with the South African Council of Educators (“SACE”) and that she had a provisional SACE registration. She further confirmed that an unqualified educator cannot be converted to a permanent position. She conceded that her REVQ was 12 as stated on page 5 of Bundle R. She understood that she could not be converted Collective Agreement 4 of 2018 clause 4.2.1.2.

12. Matloa testified under oath that she was the Principal at Thebeyame Primary School since 2016 and that she knew Moabi since 2011. She stated that Moabi was employed on a temporary contract since 2011 and that she was converted to permanent employment on 01 July 2016. She averred that she last completed Annexure D form for Moabi in January 2016. She did not know the procedure that was followed to convert an educator. She was never informed at any stage after the conversion that Moabi was again a temporary employee.

13. Under cross-examination, she confirmed that Moabi was not qualified to be converted. She conceded that she engaged Moabi regarding her qualifications sometime around 2014. She knew of people who were employed and required to do PGCE in order to be educators and that if they did not complete PGCE within the stipulated timeframe would be removed from the system. She acceded that it was not incorrect for the Respondent to terminate Moabi because she was unqualified.

Analysis of arguments

14. It is not my intention to restate all the parties’ submissions in this award. I will only concentrate on the points that I consider relevant in order for me to determine what was required of me.

15. In terms of section 186(1) of the LRA dismissal means that:

(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer:-
(i). to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii). to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee;
(c) ….

16. Section 188(1) of the LRA stipulates that a dismissal that is not automatically unfair, is unfair if the employer fails to prove that the reason for dismissal is a fair reason related to the employee's conduct or capacity; or based on the employer's operational requirements; and that the dismissal was effected in accordance with a fair procedure (my underlining).

17. Schedule 8 of the Code of Good Practice: Dismissal (“the Code”) sets out the guidelines to assess the fairness of a dismissal. Various items in the Code succinctly sets out the guidelines that are to be followed by the employer before an employee could be dismissed for reasons as stated in section 188(1) of the LRA. The Respondent argued that Moabi was not dismissed, but that her temporary contract of employment came to an end. Therefore, no disciplinary hearing was required at the end of the FTC. In my view, this argument is not supported by facts and thus, it stands to be disregarded.

18. It is common cause that Moabi was employed as an educator since January 2011 on a FTC. It is further common cause that her contract was renewed every year since 2011. Matloa led undisputed evidence that she was appointed as the Principal in 2015 after the demise of Mr Medupi (the former and late Principal) and that since she became the Principal, she completed (Annexure D form) for the renewal of Moabi’s FTC only in 2016. It is also common cause that Moabi received a conversion letter dated 05 October 2016, but stamped 04 November 2016 (see page 1 of Bundle A) signed by the Head of Department. Crisply, the contents of the letter were that Moabi was converted from her temporary appointment to a permanent appointment in accordance with the Employment of Educators Act (“the Act”) and the Collective Agreement 1 of 2010. The commencement date of the conversion was with effect from 01 July 2016. The authenticity of this letter was not disputed. Save to say that it was issued in error as Moabi did not have the requisite REQV to be converted. I therefore conclude that Moabi was accordingly converted to a permanent appointment in July 2016.

19. Keetile conceded that Moabi was terminated in December 2019. However, his argument was that her FTC came to an end. This cannot be correct. At the time when Moabi was terminated, she was a permanent employee since 01 July 2016 as stated herein above. There was no other communication regarding Moabi’s employment contract since the conversion letter until when Matloa informed her verbally on 13 January 2020 that her contract has been terminated. This termination, in my mind, falls squarely under the provisions of section 186(1) of the LRA.

20. In terms of section 186(1)(b) of the LRA, dismissal means an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it. Kgabo in his heads of arguments cited the case of King Sabata Dalindyebo Municipality v CCMA & Others . In this judgment, the Court agreed with the commissioner that the employer’s conduct of rolling renewal of the employees’ fixed term contracts every year and the fact that work and money to renew the employees’ contracts was available, has created a reasonable expectation to the employees of renewal of their contracts. Moabi’s FTC contract was renewed since 2011 to 2016 on the same or similar terms and conditions. It would not be farfetched that had it not been for the conversion to permanent position in 2016, Moabi’s contract would have been renewed as her services were still required and there was money to fund the position. Consequently, I find that Moabi succeeded in establishing the existence of a dismissal.

21. The next question that begs for an answer is: Was the dismissal for a fair reason and effected in accordance with a fair procedure? I will for once agree with Keetile that her dismissal could not have been preceded with a disciplinary hearing. However, my agreeing with him is only insofar as that there was no misconduct that she committed that warranted a disciplinary hearing. There was no evidence that was presented before me that Moabi was incapacitated to function in her role either due to ill-health or poor work performance. On the contrary, Moabi was an exemplary educator who received awards of excellence for three (3) years. After Moabi was terminated, there was undisputed evidence that another educator was appointed in her position. Therefore, the question of operational requirements would not arise. Having said that, clearly her termination did not accord with the provisions of section 188 of the LRA. As a result, I find that her dismissal was both procedurally and substantively unfair.

22. I will now turn to consider the appropriate relief. Moabi sought re-employment and twelve (12) months’ compensation as a relief in the event that I find in her favour. Section 193(1) of the LRA provides reinstatement as a primary relief. However, there are exclusions that would render a move away from the primary relief. These exclusions are in terms of section 193(2) of the LRA and they are:
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.

23. It is trite that the employment of educators is regulated by the Act and PAM . In terms of PAM clause B.2.1.1.1, a person must be in possession of REVQ 13 to be appointed as an educator. Parties were in agreement that Moabi did not have REVQ 13. Collective Agreement 4 of 2018 clause 4.2.1.3 requires a temporary educator to be registered with SACE to be eligible for conversion into a permanent position. It is common cause that Moabi has a provisional registration with SACE. It therefore follows that her conversion was in error as it did not meet the requirements for conversion. There was no evidence that was led that the position is still available and funded. I therefore cannot order re-employment under the circumstances.

24. Section 194 of the LRA provides that compensation for an unfair dismissal must be just and equitable. I found Moabi’s dismissal both procedurally and substantively unfair. As stated herein above, it is practically impossible to order re-instatement or re-employment under the circumstances. I am inclined to order compensation equivalent to twelve (12) months’ of her remuneration at the time of her dismissal.

Award

25. I find that the Applicant, Ms Dineo Vivian Moabi, succeeded in establishing the existence of a dismissal.

26. I find the dismissal procedurally and substantively unfair.

27. I order the Respondent, the Department of Education – North West, to compensate the Applicant, Ms Dineo Vivian Moabi, an amount of R15 581, 25 x 12 months = R186 975, 00 (one hundred and eighty six thousand none hundred and seventy five rands only), less any statutory deductions on or before 14 July 2023.

Arbitrator: Themba Manganyi