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03 March 2025 -ELRC731-24/25FS

Panellist: Khuduga Tlale
Case Reference No.: ELRC731-24/25FS
Date of award: 19 February 2025

In the matter between:

Moleboheng Queen Mofokeng Applicant

And

Department of Education – Free State Respondent

ARBITRATION AWARD

Details of hearing and representation

  1. The arbitration hearing between Moleboheng Queen Mofokeng (“the Applicant”) and Department of Education – Free State (“the Respondent”) was held on 17 February 2025 at the Respondent’s offices in Phuthaditjhaba. The Applicant appeared in person, and Mr. B Mbhele, SADTU Branch Secretary; represented her. Mr. Thulo Tsunke, Assistant-Director: Dispute Resolution represented the Respondent.
  2. This proceedings were conducted in English, and were manually and digitally recorded.

Issues to be decided

  1. I am first called to determine whether there were any employment relations between the Applicant, and the Respondent for the period 01 August 2024 to 09 September 2024. If I find that employment relations existed, the next issue to be decided is whether there is any amount owing to the Applicant by the Respondent. If I find that there is any amount owed, the Applicant sought for the amount in question to be paid. On the other hand, if no employment relations are found to have existed, the issue of the alleged outstanding payment falls. Background to the dispute
  2. The Applicant was employed by the Respondent as a temporary Educator (PL1) at Bodibeng Primary School at Thabo Mofutsanyana District on a fixed term contract from 01 February 2024 to 31 July 2024. The Applicant assumed duty on 01 August 2024 without the authorization of the Respondent. She continues to work until 09 September 2024 without remuneration. The Applicant did not receive the contract of employment for the said period. The Applicant earned R25 844, 32, per month. The Respondent’s representative alleged that the Applicant was employed on a fixed term contract, therefore, they do not owe her any money.
  3. The Applicant referred an alleged non-payment of salary dispute to the Education Labour Relations Council (“the Council”) on 31 October 2024. This matter remained unresolved at the conciliation on 15 November 2024, and the certificate of non-resolution issued. The Applicant party submitted a bundle of documents that was marked bundle A, pages 1-5.

Survey of Evidence

Applicant

First Witness: Ms. Moleboheng Queen Mofokeng

  1. The witness testified under oath that she was the Applicant in this matter. She testified that she was last paid salary on 31 July 2024. The Respondent did not pay her salary for the period 01 August 2024 to 09 September 2024. She enquired from the school Principal about the non-payment of her salary. On 09 September 2024, the school Principal informed her that the Respondent had no money to renew the contract. She reported for duty, signed the attendance register, and she rendered services for the said period. She stated that she reported for duty voluntarily from 01 August 2024. She used to get the contract of employment while working, and she was expecting the same for the same period.
  2. Under cross-examination, she confirmed that she went to the school Principal about her expiry of the contract. She was aware that her contract expired, and she had no contract with the Respondent. She was seeking assistance to determine exactly who owed her payment for the said period. She was expecting her contract to be renewed.
  3. Under clarity questions, she stated that her contract of employment expired on 31 July 2024. She had no employment contract for the period 01 August 2024 to 09 September 2024. She was the one who decided to continuing working after the 31st of July 2024. The school Principal did not say anything about her contract. Respondent First witness: Mr. Thulo Tsunke
  4. The witness testified under oath that the Applicant was employed on a fixed term contract. The Applicant’s employment contract expired on 31 July 2024, and she was paid her salary. The Respondent did not owe her any money.
  5. Under cross-examination, he stated that there was no evidence presented to prove that the Applicant’s contract expired on 09 September 2024. The Applicant was not forced to continue working after the 31st of July 2024. He confirmed that the Applicant was paid until the 31 of July 2024. Survey of Arguments Applicant
  6. The Applicant’s representative stated that the Respondent exploited the Applicant for not knowing the procedure. The non-payment of salary amounted to unfairness. It was the Respondent that allowed the Applicant to work without the employment contract. There was an agreement between the Applicant, and the school Principal. The Applicant’s representative referred me to Civil Service Union v Minister of Civil Service (1984) 3 A IER 935 (HL), and argued that this case was his authority that the Respondent created a legitimate expectation. There was a verbal contract, and the Applicant sought payment of outstanding salary. Respondent
  7. The Respondent’s representative stated that the Applicant’s contract expired on 31 July 2024. The Respondent did not commit any act of unfairness towards the Applicant. The Applicant was paid her salary in terms of the contract. There was no evidence led that the Respondent created a legitimate expectation.

Analysis of evidence and arguments

  1. It is common cause that the Applicant was appointed by the Respondent on a fixed term contract that expired on 31 July 2024. Section 32(3)(a) of the Basic Conditions of Employment Act, as amended (“the BCEA”) states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable. Before the issue of the non-payment of salary can be entertained, the issue of employer and employee relationship has to be dealt with first.
  2. The Applicant alleged that the Respondent failed to pay her salary for the period 01 August 2024 to 09 September 2024. She further stated that the Respondent created the expectation for her contract of employment to be renewed on 01 August 2024, but they failed to do so. The Respondent alleged that the Applicant was employed on a fixed term contract until 31 July 2024, and her contract was not renewed. It is the Applicant’s evidence that she continued working from 01 August 2024 to 09 September 2024 without the contract of employment. It is for this reason that it is necessary for me to first deal with the issue of an employer-employee relationship prior to dealing with the allegation of non-payment of salary. In discharging the onus, the Applicant testified.
  3. The primary dispute before me was non-payment of salary, not that 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 in terms of section 186(1)(b)(i) of the Labour Relations Act, as amended (“the Act”). The Applicant’s representative referred me to an outdated case law, and it was not relevant to the issue in dispute. Whether there was an employment relationship?
  4. Section 3(1)(b) of the Employment of Educators Act, (“the EEA”) states that the Head of Department shall be the employer of educators in the service of the provincial Department of Basic Education in the posts on the educator establishment of that department for all purpose of employment. Chapter 1 of the of the EEA defines an educator as any person who teaches educates or trains other person or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act.

17 Section 6(1)(b) of the EEA states that the appointment of any person in the service of a provincial Department of Basic Education shall be made by the Head of Department. Section 6(3)(a) of the EEA states that any appointment to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school. It is clear that the person who has the authority to appoint an educator at the public school is the Head of Department, not the school Principal or the School Governing Body. It is clear that the Principal of Bodibeng Primary School, or the School Governing Body have no authority to appoint an Educator at the school.

  1. It is common cause that the Applicant continuing rendering service from 01 August 2024 without contract of employment. No evidence was led during the proceedings, whether or not the School Governing Body made a recommendation to the Respondent for the Applicant’s contract to be renewed after the 31st of July 2024. It is common cause that the Applicant was not remunerated for the services rendered for the period in dispute.
  2. It is clear that the Applicant’s dispute was based on the Respondent past practices when she was appointed. The school practices cannot supersede the EEA. In Phera v Education Labour Relations Council and others (2012) 33 ILJ 2839 (LAC), it was held that where an employee resumes for duty without written permission from the Department, such assumption of duties would not establish an employment relationship per se.
  3. The Applicant signed a fixed term contract of employment with the Respondent for the period 01 April 2024 to 31 July 2024 as per “A5”. It is the Respondent’s undisputed evidence that the Applicant’s contract of employment for the period in dispute was not renewed. The Applicant failed to prove that there was an employment relationship between her, and the Respondent for the period in dispute. The Applicant knew about her employment status even before September 2024. The only evidence at my disposal is that the Applicant’s contract was not extended for the period in dispute.
  4. Based on the evidence presented, it is clear that there was no employment relationship between the Applicant and the Respondent for the period in dispute. In the absence of the employment relationship between the parties, there cannot be any money owed to the Applicant.

Award

  1. The Applicant, Ms. Moleboheng Queen Mofokeng, failed to prove the existence of the employment relationship with the Respondent.
Signature: 
Commissioner: Khuduga Tlale
Sector: Education