Case Number: ELRC1001-24/25 KZN
Commissioner: T P Cele
Date of Award: 6 April 2025

In the ARBITRATION between

NUPSAW obo Ndawande, Dorcas Sithembile

(Union / Applicant)

And

Department of Education KwaZulu Natal

(Respondent)

Details of hearing and representation

1. The matter was set down for a virtual arbitration hearing on 20 March 2025. The Applicant appeared in person and was represented by Nkosiphi Nyandu, an official from NUPSAW.
2. Samkelo Ngcobo from the Department of Education KwaZulu Natal appeared on behalf of the Respondent. The proceedings were conducted in English and digitally recorded.
3. Most of the issues were relatively common cause and in their opening statements the parties agreed to file Heads of Arguments on or before 27 March 2025 for the arbitration award to be issued on the papers.

Issue(s) to be decided

4. I must decide whether or not the termination of the Applicant’s employment by the Respondent on 31 December 2024 constituted a dismissal in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995 (The Act), as amended.

Background to the dispute

5. The facts set out below were either agreed or not disputed:

a. That the Applicant was employed by the Respondent in May 2003 as a temporary educator at Mertoun Primary School in Umzinyathi District, to substitute for an educator who was ill;

b. That when the said educator resumed duties in May 2004 after the illness, the Applicant was offered a six-month contract because there was another funded vacant post at the school;

c. That her six-month contract was renewed each time it reached the expiry date until 2009 whereupon she was appointed as a permanent educator, post level 1, on 1 January 2010 because there was a shortage of educators.

d. That her appointment was in terms of the Employment of Educators Act 76 of 1998, as amended, subject to certain conditions, inter alia, that she is professionally qualified as an educator;

e. That on 31 December 2024 her services were terminated because she still did not possess and/or submit her professional teaching qualification including her SACE registration following a reminder on 31 October 2024 to submit same; and

f. That other temporary educators were terminated in December 2017 after they were given a period of 4 years to complete their professional teaching qualifications in terms of HRM circular no. 33 of 2016.

g. That at the time there was a shortage of educators, although according to the Union the main reason was that educators who were declared excess to requirement refused to be transferred to go and teach in the rural schools.

Survey of the parties’ submissions and arguments
Applicant’s submissions

6. Nkosiphi submitted that the Applicant’s six-month temporary contract was renewed more than eleven times until December 2009 in a period of five and a half years which triggered section 198B of the LRA, which is the reason why she should be compensated on top of reinstatement.
7. In December 2024, fourteen years later, the Respondent terminated her permanent contract unlawfully after she was appointed as a permanent educator on 1 January 2010, which constituted a dismissal in terms of section 186(1)(a) of the LRA.
8. The purpose of the letter of appointment which was given to the Applicant is nothing else except to change her status of employment from a temporary to a permanent contract. The purpose of clause 4 which states that should it be found that her appointment was based on incorrect information her permanent appointment will be revoked, is merely to protect the Respondent against misleading information like the submission of fake ID’s, qualifications and even ghost educators.
9. The Applicant submitted her qualifications other than a professional teaching qualification and the Respondent appointed her based on her qualification and there is no contention by The Respondent that she provided incorrect information.
10. The Respondent interpreted and relied on a wrong clause to terminate the Applicant which was substantively unfair. He cited a court judgement in PSA obo Meintjies & 58 others v NPA, as a guide to interpretation.
11. The applicant is not disputing that she does not possess a professional teaching qualification and that as a result she is not registered with SACE. However this does not mean that the Respondent must breach the law by not following a fair procedure, which in the case of the Applicant, renders the dismissal to be both substantively and procedurally unfair.
12. The Applicant committed no misconduct and in order to terminate her services to undo the illegality the Respondent must approach the Court to review its own decision. He cited a court judgement in MEC for Education KwaZulu Natal v Lawrence Khumalo in which the MEC approached the court to set aside the promotion of Khumalo and the protected promotion of Krish Richie.
13. He referred to the same case and submitted that the Respondent’s approach is undermining the hard won protections afforded to Public Sector employees. He submitted that the appointment letter is not a collective agreement, a policy, or a legislation, unlike a contract of employment which is legal and binding.
14. He further cited a Court judgement in De Lange v Smuts N.O and submitted that the Applicant is a human being who enjoys the protection of the law but she was terminated without being given the right to be heard. The contention by the Respondent that the clauses in the letter of appointment empower the Respondent to terminate the Applicant is a joke.
15. The Applicant was not appointed based on misinformation. She did not breach any provision(s) under the Employment of Educators Act or the LRA. She did not commit any misconduct. She was appointed without a teaching qualification but with another tertiary qualification because the Respondent was in a desperate need of educators back then since there was a shortage.
16. He submitted that in the termination letter the Respondent stated that in December 2017, temporary educators who had not completed a professional qualification were terminated. He submitted that the Applicant is not a temporary educator because she was converted to permanency in January 2010.
17. Not only were these temporary educators not given a period of 4 years to complete a professional teaching qualification because according to the Respondent the circular was issued in 2016 but they were terminated in December 2017, within twelve months, but also that the Applicant is not aware of that circular since it was not brought to her attention.
18. He submitted that the power to appoint, promote, transfer and to dismiss rests with the Head of Department, the executive authority. He referred to the termination letter signed by the District Director and Submitted that the District Director has no authority and power to terminate or dismiss an educator. He disputed that the district director has delegated power(s).
19. He submitted that the Applicant was earning a basic salary of R26,593.80 per month and argued that she is entitled to be reinstated with back pay and to be paid compensation equivalent to twelve months’ remuneration.

Respondent’s submissions

20. Samkelo submitted that the Applicant was employed by the Respondent as a temporary educator in 2003. On 17 March 2010 she was appointed as a permanent educator, post level one subject to the following conditions.

a. That she is a South African Citizen or a permanent resident;

b. That she is professionally qualified as an educator;

c. That she has not previously been in the employ of the state and exited the system through voluntary severance package (VSP); and

d. That she services 12 calendar month probationary period of employment from the date of her translation.

21. On 18 October 2024 the Respondent sent a letter to the Applicant advising her that she did not qualify to be a permanent educator because she did not meet both the professional qualification and the SACE requirements.
22. She was further advised that in December 2017 all educators who did not have professional qualifications were terminated after they were given 4 years to complete and to submit their qualifications. She was also advised to submit her professional qualification by no later than 31 October 2024, failing which her services were going to be terminated by 31 December 2024.
23. The Applicant failed to submit her professional qualification and consequently her services were terminated and her last day in the service of the Respondent was 31 December 2024. The District Director who signed the termination letter has delegated power(s).
24. He argued that the Applicant knew all the time before December 2024 that she did not meet the requirements of being a permanent educator. She was also aware that educators in the same status were terminated in 2017 after they were given 4 years to submit their professional qualifications.
25. He further argued that the Applicant was given enough time from 2010 to complete her qualifications but she failed to do so. She was asked again in October 2024 to submit her qualifications and also advised that other educators in the same status were terminated in 2017. He argued that the Applicant was lucky to be in the service of the Respondent until 31 December 2024 and asked for the matter to be dismissed.
26. He also argued that the Applicant knew that she was not permanent because she did not meet the requirements set out in her letter of appointment. She was serving on contract basis pending her submission of the professional qualifications which she failed to do.

Analysis of the parties’ submissions and arguments

27. In terms of section 186(1)(a) of the Labour Relations Act dismissal means that an employer has terminated employment with or without notice. The employee bears the initial onus of establishing the existence of a dismissal while the employer bears the onus of providing that the dismissal was fair.
28. It is common cause that the services of the Applicant were terminated by the Respondent on 31 December 2024.
29. It is also common cause that the Applicant does not possess a professional teaching qualification and further that she is not registered with the South African Council for Educators (SACE).
30. It is further common cause that on 1 January 2010 she was appointed from a temporary educator to a permanent educator subject to certain conditions, and that at the time of her termination she was occupying a substantive post of educator post level 1.
31. The conditions subject to which the appointment was made were set out in her letter of appointment which signaled the beginning of her employment relationship with the Respondent as a permanent educator in terms of the Employment of Educators Act 76 of 1998, as amended.
32. The first question is whether she was appointed in error as a result of an oversight by the Respondent for failing to notice that she did not have a professional qualification or the Respondent was aware but it proceeded to appoint her for certain reasons based on the circumstance which prevailed at the time.
33. It is apparent to me from the submissions made by both parties that the Applicant was not appointed by mistake or as a result of an oversight by the Respondent. In their submissions both parties conceded that there was a shortage of educators albeit for different reasons.
34. The fact that contract educators were issued with a circular in 2016 giving them a time frame within which to complete their professional teaching qualification is consistent with the circumstances of the Applicant when she was appointed, hence there was a criteria in her letter of appointment to be fulfilled.
35. In essence there was a rationale for her appointment which was objective and the rationale was that the Respondent was facing a crisis of a shortage of educators, and most importantly, the appointment was subject to conditions which had to be fulfilled.
36. The second question is whether as a result of her failure to obtain a professional qualification her status ceased to be that of a permanent educator or she had been a contract educator at all material times pending her obtaining the qualification.
37. From the submissions her appointment as a permanent educator was made on 1 January 2010. She occupied a substantive post of educator post level 1. At the time of her termination she was remunerated at the basic salary of R26,593.80 per month. There was no submission that she was on successive fixed-term contracts pending her obtaining a qualification.
38. Therefore at the time of her termination she was for all intents and purposes a permanent educator and not a contract educator contrary to the Respondent’s contention that she was not permanent because she did not meet the requirements.
39. The third question is whether her termination was fair and whether she is entitled to the relief that she is seeking. It is beyond dispute that she is still not in possession of a professional teaching qualification and also that she is not registered with SACE.
40. A professional qualification and SACE registration are statutory and inherent requirements for an educator to be formally recognized and certified as an educator. It is also apparent from the submissions that the Applicant has always been aware of these requirements and that she failed to fulfill them.
41. The last question is whether as a result of her failure to obtain a professional qualification, her contract of employment may be terminated by operation of law. In this regard it is my view that the Applicant was an unqualified permanent educator.
42. There was no submission from the Respondent that since her appointment in January 2010 the Applicant was not receiving a remuneration of a permanent post level 1 educator and that as a result she did not receive the benefits of a permanent educator.
43. It therefore follows that her failure to obtain a professional qualification does not automatically diminish her status as a permanent educator including her contract of employment without following due process.
44. The “audi alteram partem rule” is paramount in our law. The Respondent ought to have terminated the services of the Applicant after following due process. The Applicant should have been afforded the opportunity to make representations to show cause why her service should not be terminated.
45. In these circumstances it is my finding on a balance of probabilities that the dismissal of the Applicant was substantively fair but procedurally unfair. The Applicant is awarded compensation for the procedural unfairness, equivalent to three months’ remuneration calculated at the rate of the remuneration she was receiving at the time of her dismissal.
46. The compensation awarded to the Applicant is calculated as follows: R26,593.80 x 3 = R79,781.40.
47. I accordingly make the following award:

Award

48. The dismissal of the Applicant, Dorcas Sithembile Ndawande, is found to be substantively fair but procedurally unfair.
49. The Applicant is awarded the sum of R79,781.40 as compensation for the procedural unfairness.
50. The Respondent, Department of Education KwaZulu Natal, is ordered to pay the Applicant, Dorcas Sithembile Ndawande, the amount set out in paragraph 49 above, into a bank account on or before 30 May 2025.
51. I make no order as to costs.

P Cele: CCMA Commissioner