NSIBANDE ZP APPLICANT
AND
DEPARTMENT OF EDUCATION – KZN RESPONDENT

ARBITRATION AWARD
CASE NO PSES474-18/19KZN
DATE/S OF HEARING 28 JAN 2019,13 MARCH 2019 & 30 APRIL 2019
DATE AWARD SUBMITTED 12 MAY 2019
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of s191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Dundee on 28 January 2019, at 10h00. Mr MV Madlala an official from SADTU represented the Applicant. Mr S.C Ngcobo an official, represented the Respondent.

ISSUES TO BE DECIDED

2. I am required to determine whether the dismissal of the Applicant by the Respondent was fair. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
3. The Applicant was employed as an educator since 04 March 2014, as post level one educator at Mpikayizekanyi High School by the Respondent. On 31 August 2018, the services of the Applicant were terminated by the Respondent. The Respondent terminated services of the Applicant as she was an unqualified educator. Applicant seeks reinstatement at Mpikayizekanyi High School.

SURVEY OF EVIDENCE AND ARRGUMENT
Respondent’s case
4. The Respondent called one witness Menzi Madondo. His evidence is summarised as follows. He was employed by the Respondent in the HR section for a period of ten years. He testified about the procedure in appointing educators. They use documents from the circuit office, qualifications, signatures; they load all the above on their system and a file is then created for the educator. The appointment letter for the successful candidate is issued before he or she commences the duties. Bundle A pg.1 is the appointment letter of the Applicant. She was appointed as a temporary educator. Bundle A pg.2, is the letter from Higher Education and Training in relation to evaluation of qualifications of Applicant. According to the said letter Applicant was not a qualified educator and as such her salary was reduced and fell under the category of protected educators. Applicant and other unqualified educators were given an opportunity to further their studies in order to qualify as educators. Bundle A pg. 5, is the termination letter of the Applicant. She was given a month notice as per the letter. All unqualified educators services were terminated.
Applicant’s Case
5. The Applicant called no witness in support of her, however she intended to have witness and the matter was adjourned on several occasions to allow her to secure the witnesses. She testified as follows: she was employed by the Respondent as from 04 March 2014.Her services were terminated on 31 August 2018. Her services were terminated as she was not a qualified educator. She received the termination letter however was not satisfied with it. The notice was 30 days instead of 90 days.

ANALYSIS OF EVIDENCE AND ARGUMENT

6. Section 192(1) of the LRA places an onus on the employee to establish the existence of dismissal. In this matter the existence of dismissal is not in dispute. The onus now shifts to the Employer in terms of section 192(2) of the LRA to prove on a balance of probabilities the substantive and procedural fairness of the dismissal.

7. Procedural Fairness: It is common cause in this matter that the Applicant was given 30 days’ notice period. Applicant was served with the termination letter on 31 July 2018 and her last day at the school was 31 August 2018. In terms of section 37(1)(c) of the Basic Conditions of Employment Act 75 of 1997(BCEA)a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than four weeks if the employee has been employed for a year or more. The fact that the Applicant initially thought that the notice period was for 90 days is of no relevance to the issue at hand. Interestingly at the end of the matter the Applicant conceded that “the procedure followed by the Respondent was correct.” Based on what I have highlighted above, the dismissal of the Applicant was procedurally fair.

8. Substantive Fairness: In determining fairness of the dismissal, the LRA requires me to consider the Code of Good Practice: Dismissal, Schedule 8 of the LRA as amended.

9. Respondent in trying to prove its case led the evidence of one witness. His evidence had been summarised above, it will not be repeated. I was impressed with the witness called by the Respondent, His evidence was consistent with the probabilities. It was clear and satisfactory in all material respects. He stated that Applicant was employed as a temporary educator as per Bundle A pg1, such evidence under cross-examination was not disputed. None of his evidence was disputed by Applicant representative. He appeared to be a reliable and credible witnesses. Unfortunately, the same cannot be said about the Applicant’s case.

Applicant testified herself and called no other witness in support of her case. Applicant did not dispute the evidence of Mr Madondo in relation to the substance, that she was an unqualified educator, she was given years to further her studies to obtain a qualification to qualify as an educator, she was not the only one whose services were terminated but all unqualified educators were likewise terminated. No reason had been brought forward by the Applicant to justify why in the –years given to further her studies, she had not obtained the qualification. It is very clear that the Respondent had a valid reason to terminate the services of the Applicant. The reasons for the termination were known to the Applicant. I find the dismissal of the Applicant to be substantively fair.
AWARD
10. The Applicant’s dispute referral is dismissed.
Signature:
Commissioner: Siziwe Gcayi
Sector: Basic Education