RAMOGALE, L Applicant
and
DEPARTMENT OF EDUCATION – LIMPOPO Respondent

ARBITRATION AWARD

Case Number: PSES482-18/19

Last date of arbitration: 8 NOVEMBER 2018
Receipt of closing arguments: N/A
Date of award: 10 November 2018

MATHEWS RAMOTSHELA
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held on 8 November 2018 at the offices of the Department of Education, Polokwane, Limpopo. The employee was present. He was represented by M Makgaa, a union official of SADTU. N E Nyathela, the employer’s human resources official, presented its case. The proceedings were digitally recorded.

ISSUE TO BE DECIDED

[2] I must determine whether the employee’s dismissal was both procedurally and substantively unfair. Procedural fairness is not in dispute. Should I make any finding that the dismissal was unfair, I am expected to determine the appropriate remedy.

[3] The employee’s Bundle of documents is marked as “Bundle A” while the employer was marked as Bundle B.

BACKGROUND TO THE ISSUE AND REASON FOR DISMISSAL

Background

[4] The following issues have been agreed upon as common cause:

(a) The pertinent facts are contained in two documents as per Bundle A, being the employee’s letter of appointment (fixed term contract of employment) as per page 18 and the letter of termination as per page 19.
(b) The fixed term is from 5 June 2018 to 31 December 2018;
(c) The employee’s position: teacher at Mothiba Primary School;
(d) No disciplinary hearing was held;
(e) Rate of remuneration: R 30 014.30 per month;
(f) Other than what is stated in the letter as per page 19 of Bundle A, the employer had no reason to terminate the employment relationship.

[5] The employee prays for compensation.

SURVEY OF EVIDENCE AND ARGUMENT

[6] None of the parties presented evidence. Both parties agreed that there was no need to do so as there exists no disputes of fact at all. As already stated above, the employer’s case is confined to the letter of termination as per page 19 of Bundle A. Effectively, the employer admits that it has no valid reason to terminate the employment relationship as envisaged by the provisions of section 188 of the Labour Relations Act 66 of 1995 (as amended), hereinafter referred to as “the Act”).

EMPLOYER’S ARGUMENT

[7] The employer did not dismiss the employee but merely amended his original contract to the effect that the termination date was no longer 31 December 2018, but instead 31 August 2018. Accordingly, the employer did not unfairly dismiss the employee.

EMPLOYEE’S ARGUMENT

[8] The employer unfairly dismissed the employee as there exists no valid reason to do so. The letter on page 19 of Bundle A constitutes a dismissal.

ANALYSIS OF EVIDENCE AND ARGUMENT

[9] In terms of section 192(1) of the Act, the onus rests upon the employee to establish the existence of a dismissal. For the employee to succeed in his/her claim, he/she must establish that he/she was indeed dismissed.

[10] As stated above, the employer admits that it addressed a letter to the employee as per page 19 of Bundle A. The letter categorically states that “the new service termination is the 31st August 2018”. It must be noted that the employee’s contract stipulates that the termination date is 31 December 2018. In the absence of any agreement between the parties to mutually accelerate the termination date to this earlier date (31/8/2018), the employer’s unilateral conduct would constitute termination.

[11] Despite the employer’s submission that this document does not constitute termination, I find no difficulty in arriving at the ineluctable finding that indeed the employer has terminated the employment relationship. The contents of the letter are not ambiguous at all and the very wording thereof clearly shows that the employee was told in no uncertain terms that he was dismissed.

[12] I thus find that the existence of dismissal has thus been established.

[13] If the existence of the dismissal has been established, the onus is now upon the employer to prove that the dismissal was fair (see section 192(2) of the LRA). The employer must establish that the dismissal was preceded by a fair procedure and that there was in existence a valid reason to justify such dismissal. The standard of proof is on a balance of probabilities.

[14] The employer has failed and/or neglected to present any valid ground for the dismissal as envisaged by the provisions of section 188 of the Act. The employee’s termination is not based on any conduct, capacity or operational requirements. Furthermore, the employer admits that no pre-dismissal hearing or inquiry was held prior to the termination. It must be noted that the very nature of the employer’s defence is such that there can be no valid reason as it contends that it did not dismiss the employee.

[15] In conclusion, I find that the employer had no fair reason to summarily terminate the employment relationship. The dismissal was thus both procedurally and substantively unfair.

[16] The employee has prayed for compensation. In arriving at the amount of compensation, I took into account the reality that the employee’s fixed term contract was left with approximately four months to expire, the fact that the dismissal was both procedurally and substantively unfair, and the financial hardship that the employee has to endure as a result of the premature termination of his contract. Payment of an amount equivalent to the employee’s four months’ remuneration would thus constitute a fair and equitable compensation.

AWARD

[17] The dismissal of the employee was both procedurally and substantively unfair.

[18] The employer is hereby ordered to pay the employee an amount of R 120 057.30, being the equivalent of his remuneration for a period of four months, such payment to be made by not later than 15 December 2018.

Signed

Council Panelist: Mathews Ramotshela