Case Number ELRC334-25/26WC

In the matter between:

LAURENCE RIAAN SMITH
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was scheduled for an arbitration on the MS Teams virtual platform on 28 August 2025. The applicant, Mr. Laurence Riaan Smith was represented by Mrs. N. du Preez, an attorney. The respondent was represented by Ms. L. Randall, an assistant director. Both parties submitted bundles of documents into evidence to which there were no objections.

THE ISSUE IN DISPUTE

2. I must decide whether the applicant was dismissed and, if so, whether the dismissal was unfair.

THE BACKGROUND TO THE DISPUTE

3. The applicant worked for the respondent on various fixed term contracts of employment at different schools from 2012 and as an educator at post level 1 with a net monthly income of R30, 659.41.
4. Closing arguments were delivered orally with parties submitting written heads of argument as well.
5. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

6. Each party submitted documentary evidence to which neither recorded any objections.
7. The applicant testified under oath on his own behalf. Lauren Ruth Randall testified under oath for the respondent.
8. It was common cause that the applicant had worked for the respondent on numerous fixed term contracts of employment at various schools since 2013.
9. It is in dispute that the applicant was employed on a fixed term contract of employment from 1 April 2025 to August 2025.
10. It is also in dispute that the respondent had dismissed the applicant.
11. The respondent contends that the applicant’s services had terminated when his last fixed term contract of employment had run to its conclusion date on 31 March 2025.
12. The applicant contends that his last fixed term contract of employment ran from 1 April 2025 to 31 August 2025 but was terminated on 30 April 2025 when he was unfairly dismissed.

The evidence for the applicant

13. After he had applied for a post at the Sir Lowry primary school in Sir Lowry’s Pass, the applicant had been informed by the school’s deputy principal, Mrs. May (May) that he should report for duty as he was already the best candidate.
14. It was a substitute post in respect of an educator having gone on maternity leave.
15. When he reported for duty he filled in forms regarding his personal and bank details. He was then introduced to the staff.
16. For the following few days that week he reported for duty timeously and finished the day at 3 p.m. when the school closed. He assisted after school with the hockey team.
17. A problem then arose when the school was unable to load him onto the system for the payment of his salary.
18. After May informed him of this, he was honest and disclosed to her an email which the respondent had sent him on 27 March 2025 in terms of which it was said he should inform the department in the public sector where he applied for work of there being a block on his Personnel and Salary System (PERSAL) number and the reasons therefore. This, according to the email, he was to do upon applying for the position.
19. After May had read the email she informed him that if she knew he had these allegations of misconduct against him as contained in the email she would never have appointed him.
20. He then asked her to write a letter to the respondent informing it that he had been appointed as one, Mrs. Willemse (Willemse), at the Nederburg Primary School had informed him when he taught there prior to his appointment at Sir Lowry Primary School that he should first come into the system again. May had refused to write the letter.
21. She said she could not write any letter to the respondent and had to discuss it with the circuit manager.
22. Later that day she informed him of the circuit manager’s decision that he should not come to school the next day and that the matter would be discussed with the School Governing Body. (SGB).
23. Two weeks later she called him and informed him that the final decision of the SGB was that he could not be appointed in the contract post.
24. Under cross examination Smith testified that over the period of 12 years that he had worked for the respondent he had merely filled in the forms he had on this occasion and he had never been given a letter of acceptance to sign.
25. He had already been employed at the school when he was told that he could not be put on the system for the purposes of paying his salary, hence he had been employed by the respondent.
26. When May had approached him regarding the appointment at the school he had not informed her of the contents of the email of 27 March 2025 regarding the block on his PERSAL and for the reasons of allegations of misconduct because of Willemse’s having informed him that he must come into the system again and if the principal, May in this case, had no problem then she must write a letter stating that she had no objections to the block on his PERSAL and would still employ him.
27. He was honest with May and informed her of the block when she phoned him about the problem.
28. He believed no principal will appoint him in the light of these allegations and told May after she had appointed him.
29. When May had appointed him without having to do an interview he did not inform her regarding the email as he was following the advice of Willemse who told him to make the disclosure when he had been employed.
30. He did not ignore the letter from the respondent dated 27 March 2025 and which he received subsequent to the advice of Willemse.

The evidence for the respondent

31. Randall confirmed the contents of the letters addressed to du Preez.
    ANALYSIS OF THE EVIDENCE AND ARGUMENT
32. It is clear from the evidence presented at this arbitration that the applicant had actually physically worked for the respondent from 1 April 2025 for about 4 days. This work had been done in a substitute post in the place of an educator at the school being on maternity leave.
33. This is the basis for the applicant’s claim that he had been an employee and that the termination of his employment constitutes an unfair dismissal perpetrated by the respondent.
34. Prior to this the applicant had been employed on the latest of numerous fixed term contracts that ended on 31 March 2025. This much is common cause.
35. The evidence shows further that the applicant had been given a letter by May around 30 April 2025 in terms of which he had been informed that he was no longer appointed in the position. Hence the applicant’s contention that the dispute arose on 30 April 2025.
36. The question that then arises is what effect knowledge of the block that had been placed against the applicant’s name on the PERSAL system has on his relationship with the respondent in particular at the time he applied for a new position.
37. In this regard the evidence shows that the applicant had gained knowledge of the allegations of misconduct at least during February 2025 when he had been informed thereof by one, Ms. Willemse, at the Nederburg Primary School where he was employed at the time.
38. After May had informed him of the block against his name on the PERSAL system he had contacted Willemse who informed him that all May had to do was to write a letter to the respondent that he had been employed and that the block would then be lifted.
39. It is to be noted that the applicant’s version is that Willemse had informed him that he had to come back into the system and then for the block to be lifted from the PERSAL system.
40. There is however the subsequent letter from the respondent which is clearly one which instructs the applicant as to what is required of him should he in the future apply for employment with any government department including the respondent itself.
41. It must be noted that the respondent as an employer is a geographically widespread workplace and therefor that this condition on an application for employment with it would justify its informing a prospective employee currently in its employ of conditions of employment that would prevail in further future applications for employment with it.
42. The question thus arises as to what then occurs in the absence of such condition being complied with by the applicant.
43. In casu the condition had come into effect when Smith applied at the Sir Lowry Primary School. He was enjoined then to disclose to the principal the information contained in the email of 27 March 2025 at the time he applied for the position.
44. Notwithstanding that the email from the respondent comes after his interaction with Willemse and is the email that sets the aforesaid condition his interaction with Willemse is to the same effect. That interaction makes it clear that he will have left the system and must take steps to return into it.
45. The only way the applicant could do this was to disclose at the time of the application for a further position with the respondent, after his employment contract had ended, the allegations regarding conduct by him at the Ebenezer Primary School when applying for the position at Sir Lowry Primary School.
46. The email is in fact the only indication of what the condition was to Smith’s future employment with it as Willemse herself had not been called to testify in respect of what it was that she had conveyed to Smith. In this regard her communication to Smith constitutes hearsay evidence of the respondent’s condition and cannot be preferred to that contained in the email of 27 March 2025 and to which no objection to the contents thereof had been recorded.
47. I am satisfied that Smith ought to have declared to May the contents of the email already when applying for the position As the letter of the respondent of 27 March 2025 requires of him that disclosure be made at the time of application for the position.
48. Although there is no evidence before me as to when exactly the applicant had applied for the position at Sir Lowry Primary School I am satisfied that this at least places an obligation on the applicant to disclose so that any prospective school principal can decide on whether to employ him prior to making the appointment and in circumstances where the principal is privy to the allegations of misconduct.
49. I am satisfied that the applicant is aware of this, hence his decision not to disclose and for the reasons below.
50. Smith would have known that there would be an issue with the payment of his salary on account of the block on his PERSAL. A vital part of concluding the contract of employment would be for the employee to know and accept that the respondent/employer must be able to pay his salary. The evidence shows that Smith on balance knew there would be problems with the payment of his salary in these circumstances. In fact he would have known with the block against his name on the persal system he would not be paid a salary unless the block were lifted.
51. He would have known that the parties in the circumstances were unable to validly conclude an employment contract.
52. For Smith to report for duty in these circumstances is disingenuous and it would be unfair on the respondent to have him benefit from such conduct.
53. The evidence shows further that after the initial 4 days of rendering his services at the school May had informed the applicant on the instructions of the circuit manger not to attend at the school as the matter would be discussed by the SGB.
54. The question then arises as to whether Smith, on being informed on 30 April 2025 of his not being appointed in the position, was an employee of the respondent or not.
55. In this regard the argument for Smith ticks all the boxes for one being presumed an employee of the respondent as required in section 200A of the Labour Relations Act 66 of 1995 as amended (the LRA). This however is as opposed to one who had actually physically worked for the respondent as had Smith but who had not qualified in so far as the presumption in the said section 200A of the LRA is concerned.
56. In casu however, Smith had come to be an employee by questionable means which thus raises the question of whether the employment contract, the agreement between the parties, is valid.
57. By his non-disclosure, which furthermore was probably deliberate, as can be concluded from his testimony that he believes that no principal would employ him given the allegations of misconduct against him and especially given the nature thereof (the allegations of misconduct against Smith involve accusations of sexual assault of learners), Smith had through his failure to disclose, clearly misrepresented the situation when applying for the position at Sir Lowry Primary School.
58. The question then is whether Smith is entitled to rely on such misrepresentation. Once again given the fact of the misrepresentation and the serious nature of the allegations Smith should be estopped from reliance thereon.
59. In this regard it is significant that on his own testimony May had indicated upon her learning of the allegations of misconduct that she would not have employed him given the nature of the misconduct allegations.
60. She had clearly acted to the detriment of the respondent as a consequence of Smith’s misrepresentation arising from his failure to disclose the allegations and the reasons for the respondent’s not having initiated disciplinary steps against him and the fact that a block had been placed against his name on the PERSAL system.
61. The fact of the matter however is that Smith had been employed in that he had worked for the 4 days in April 2025 and had then been informed of his non appointment at the end of April 2025, at least a month after he had started to work at Sir Lowry Primary School.
62. The question therefore is as to whether in a matter of this nature it should be considered from the perspective of an unfair dismissal or whether the principles of estoppel should apply.
63. Should Smith be estopped from relying on his failure to disclose when applying for the position at Sir Lowry Primary School the effect thereof would be that his appointment would be null and void ab initio.
64. In the case of G4S Secure Solutions (SA) (Pty) Ltd v Thandabantu Ntloko and others (Case Number 2/2015) an employee had misrepresented at his interview and had validly been dismissed for dishonesty 14 years later. Acting judge Savage stated “I am satisfied that the sanction of dismissal imposed by the appellant on the third respondent was fair. The false misrepresentation made by the third respondent was blatantly dishonest in circumstances in which the appellant is entitled as an operational imperative to rely on honesty and full disclosure by its potential employees.”
65. He had worked and with a clean disciplinary record for that period of time. He had not been required to pay back the monies obtained as quid pro quo for work done.
66. In casu, as stated above, the nature of the allegations in this kind of workplace viz. where children are involved go to rights protected in Section 28(2) of South Africa’s Constitution which dictates that that a child’s best interest is of paramount importance in every matter concerning a child.
67. Importantly too in the matter before me the respondent had not had an opportunity to implement disciplinary action against the applicant as this was, in particular, to take the form of an enquiry before an arbitrator given the nature of the allegations and as provided for in the Collective Agreement 3 of 2018 of the ELRC.
68. Smith may well have been dismissed had he been subjected to the enquiry before an arbitrator. It would however be unfair to deprive the respondent of an opportunity to discipline Smith because of its inability to have the matter scheduled for discipline prior to the termination of the employment relationship.
69. In these circumstances it would be remiss of me to make an award excusing the kind of conduct of Smith in these circumstances i.e. his failure to disclose the allegations which he was aware of at the time of his applying for the position.
70. Had Smith disclosed as he was required to do and to his detriment, he would have been able to challenge the conduct of the respondent, for example in the form of an alleged failure to renew a fixed term contract or re-employ him. His rights to challenge consequences that flowed from disciplinary action against him would have remained intact.
71. The respondent’s contention that it was unable to finalise the disciplinary process due to the imminent conclusion of the applicant’s contract of employment on 31 March 2025 is not challenged and accordingly accepted.
72. A dispute of this nature would have had to have been referred to the bargaining council through the process of the enquiry by arbitrator as provided for in section 188A of the LRA and Collective Agreement 3 of 2018 and not the usual internal disciplinary processes for other kinds of alleged misconduct. The former is a far more lengthy process in terms of which the bargaining council has 60 days to schedule the matter.
73. In this regard there is also no evidence to suggest that the respondent had acted capriciously or with mal-intent or negligently or invidiously.
74. The evidence suggests further at that point that the respondent had no knowledge of the applicant’s being imminently employed by the respondent through an appointment at the Sir Lowry Primary School. This further employment had required the respondent to intervene in the lifting of the block on the applicant’s PERSAL as stated in the letter of 27 March 2025.
75. In conclusion therefore I am of the view and find that the applicant should be estopped from relying on his misrepresentation through non-disclosure of the allegations of sexual assault involving learners at the Ebenezer Primary School, which non-disclosure led May to appoint him to the detriment of the respondent in circumstances where it would not have appointed him were May aware of the allegations.
76. In these circumstances it would be unfair on the respondent were Smith allowed to benefit financially from the time that he had rendered services at Sir Lowry Primary School.
77. It is therefore appropriate that the applicant be estopped from relying on his misrepresentation when applying for the position at Sir Lowry Primary School.
78. The consequence of this is that the appointment of Smith into the position is void ab initio.
79. A further consequence of this is that Smith may again apply for a position within the respondent and must disclose the existence of the block against his name on the PERSAL system when making such application and before his appointment.
80. In conclusion and having considered all the evidence presented at this arbitration I find that there was no contract of employment between the parties and accordingly that there had not been any dismissal of the applicant that had occurred.
81. In these circumstances the ELRC lacks the jurisdiction to arbitrate this matter.

AWARD

82. This application for relief in terms of the provisions of the LRA is dismissed.

8 SEPTEMBER 2025