Commissioner: VEESLA SONI
Case No.: ELRC 803-23/24 Date of Award: 25 FEBRUARY 2025

In the ARBITRATION between:

LUYANDA SITHEBE AND OTHERS APPLICANTS
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (1) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”).
2. The Applicants, Luyanda Sithebe and others were represented by a union official, Rev Mathabela. The Respondent was represented by Mr Muzuthini Sibanyoni.
3. The matter proceeded to arbitration on 18 November 2024. There was no appearance by the Respondent and it resulted in a default award. The Respondent applied for rescission on the basis that they did not receive notification. The said default award was rescinded on 17 January 2025.
4. The matter was rescheduled for hearing for 25 February 2025, and the notice of set down was communicated to all parties, on 14 January 2025.
5. On even date the Applicant, Sithebe and others, and their representative, Mr Mathebela were present. As a commissioner, I contacted the Respondent, Mr Muzuthini Sibonyoni, and advised him that we were on M S Teams. He advised that he was struggling to connect. I afforded him till 9.30 and advised that of he had difficulty, he must communicate with me. There was no communication with myself or the council. I waited till 10 am, and there was no attendance. Mr Mathebela contacted the office of the Respondent and was advised that he was in a meeting. I am satisfied that there was proper notification of the hearing as well as communication on the day. The matter proceeded as a default.

ISSUE TO BE DECIDED

6. The issue in dispute was whether the Applicants were dismissed and if so, whether the dismissal was substantively and procedurally fair.

BACKGROUND AND SURVEY OF EVIDENCE

7. The Applicants commenced employment 1 June 2023 and the contract was for a fixed period due to terminate on 31 December 2023. The main Applicant, Sithebe was employed as an educator, PL1 with a salary of R 31 864-80 per month. The Applicant was employed Hlanguza Primary School.
8. The remaining Applicants were employed at different schools and were at different salaries, as set out in annexure A attached to this award.
9. The Applicants’ case was that there was a fixed term contract due to terminate in December 2023. Their temporary employment contracts were converted to full time permanent employment and they were to resume duty in January 2024. They all worked only till the end of January 2024 when they were advised that they were not converted to full time employees and were terminated.
10. The onus rested on the Applicants to establish that there was a dismissal and the Respondent was required to demonstrate that it was fair.

APPLICANT SITHEBE’S EVIDENCE

11. The main Applicant, Sithebe, testified on behalf of herself and the same evidence was confirmed for the remaining Applicants. Rev Mathabela represented all the Applicants and did not lead the evidence of each one, except to place on record that the evidence remained the same for all. He was duly instructed to represent all the Applicants and they relied on the evidence of just one witness, being Sithebe. I now turn to the evidence of Sithebe. She was clear and precise and stated that she was converted from a temporary educator to a permanent one. She referred to HRM 46 of 2023 wherein all temporary educators were converted to permanent educators and they were to assume duty on 15 January 2024. The Applicants reported for duty on 15 January 2024 and worked till 31 January 2024, wherein they were advised that there were not converted to full time permanent employees. The Applicants were asked to leave. The Applicants claimed that the conduct of the Respondent amounted to a dismissal and asked for reinstatement with back pay.
12. The list of the Applicants is attached hereto, marked annexure A.

ANALYSIS OF EVIDENCE

13. The matter was referred as an unfair dismissal dispute. During the first sitting of the matter the Respondent disputed that the Applicant was dismissed hence the onus shifted to the Applicants to establish that they were indeed dismissed. The matter proceeded on 25 September 2024, with a joinder ruling. The matter was adjourned for even date, and there was no appearance by the Respondent. I was satisfied that all parties were properly notified and I proceeded with the arbitration.
14. Applicant Sithebe testified on her behalf and the remaining Applicants relied on her testimony. I have no evidence from the Respondent as they were in default of appearance, for the second time. I am tasked to weight the evidence of the Applicant party and make a determination as to whether there was a dismissal and if so, whether same was fair.
15. Based on the evidence before me I am satisfied that the Applicants were converted from fixed term educators to full time educators. I am further satisfied that their contracts were terminated on 31 January 2024. The termination of their contracts were unfair as I accept that they were employed on a permanent basis, as all fixed term employees were converted to full time educators. The conduct of the Respondent amounted to a dismissal.
16. In the circumstances, and in the absence of any evidence of the Respondent I find that reinstatement, of the Applicants, to a permanent position, would be fair and equitable. The matter was initially scheduled for 26 April 2024 and it was adjourned at the request of the Applicant’s representative, as he was on study leave. The same applied for the next sitting on 31 May and 21 June 2024. On 23 July 2024 there was an application for disclosure and a ruling was issued. On 25 September 2024 there was an application for joinder and a ruling was also issued. I have considered that the Applicants have not rendered any service for 2024 and the delay in finalising the matter was due to no fault of the Respondent. In addition, there was a default award on 18 November 2024 and a rescission ruling was granted. In these circumstances to award reinstatement with back pay would financially prejudice the Respondent.
17. It is my finding that the Applicants be reinstated from 1 April 2025, with no back pay, to into the same position which he occupied prior to their dismissal, at the same salary scale and subject to the same conditions. Award
    I make the following award:
18. The Applicants are reinstated in the same position which they occupied prior to their dismissal, at the same salary scale and subject to the same conditions in at their respective schools and are to report for duty on 1 April 2025.
19. The Applicants are reinstated from 1 April 2025.
20. There is no order for back pay.
21. The Applicants are to report for duty at their respective schools, on 1 April 2025, as per annexure A.

ELRC Commissioner : VEESLA SONI
Date : 25 February 2025

Annexure A