IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM VIDEO CONFERENCING
Case Number ELRC371-21/22WC

In the matter between

FRANLI CHLOE KANNEMEYER
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. This matter was scheduled for an arbitration on 22 October 2021 and 23 November 2021. The applicant was represented firstly by Mr. A. Kok, the legal officer/organisor of SHOWUSA and eventually by Ms E. Botha an official of SADTU. The respondent was represented by Ms. A.Willemse.

2. At the conclusion of this matter the parties undertook to submit closing arguments in writing by no later than 12H00 on 30 November 2021.

3. At the time of writing only the respondent party had submitted written closing arguments.

THE ISSUE IN DISPUTE
4. I must decide whether the applicant was dismissed and, if so, whether such dismissal was unfair.

BACKGROUND
5. At the outset of proceedings when establishing the locus standi of representatives, the right of Mr. Kok to represent was raised by me and he was invited to make submissions as to why he enjoys the locus standi to represent the applicant. The representative of the respondent indicated that the respondent too had intended to raise the question of Mr. Kok’s locus standi.

6. At the introduction of Mr. Kok at these proceedings on 22 October 2021, he submitted a contract of employment between himself and SHOWUSA. On this basis Mr. Kok contends that he is entitled to represent the applicant as an employee of SHOWUSA.

7. He also advised that Ms. Willemse was also to challenge his locus standi in these proceedings. This was subsequently confirmed by Ms. Willemse.

8. Mr. Kok was accordingly invited to make representations as to why it is that he enjoys locus standi in these proceedings.

9. In his representations regarding locus standi Mr. Kok made the following submissions. He is the legal officer at SHOWUSA but performs a dual role in that the union may utilize his services in other respects such as operational requirements. He had been appointed with effect 1 November 2020.

10. He is also associated with a non-profit organization for which he does the same work. Due to the COVID 19 pandemic restraints brought about by the hard lockdown he had done his first arbitration in his appointed position at SHOWUSA in March 2021 at the CCMA. His other duties include training and presenting workshops

11. He had encountered this difficulty of his locus standi on numerous occasions at the CCMA and this had resulted in his contract of employment being amended by SHOWUSA.

12. He is entitled to represent in these arbitration proceedings by virtue of the fact that he is employed by the trade union as reflected in his contract of employment.

Submissions for the respondent:
13. The respondent raises the issue of locus standi as well as suggested by Mr. Kok that it would.

14. Mr. Kok’s contract shows that he had been appointed 1 November 2022 and is signed November 2020.

15. The question for the respondent is in what capacity will Mr. Kok be representing the applicant i.e. whether as a shop steward or trade union representative.

16. Further submissions by Mr. Kok are as follows. He is employed as a trade union representative and not as a shop steward

17. He does not have any proof of remuneration from the trade union employer as there was not much work done recently due to the COVID 19 pandemic. This proof, he understood, was necessary to establish his bona fides in participating in this arbitration and others which he will be participating in in the near future.

18. It was further submitted by Ms. Willemse that this issue of the locus standi of Mr. Kok had according to him been coming up often in recent times and he ought therefore to have been prepared for all eventualities that might arise in order for him to prove his right to represent the applicant in these arbitrations.

19. Mr. Kok added further that as recently as 8 October 2021 before Commissioner du Plessis at the CCMA it became clear that more than just a letter of appointment was required to satisfy the right of locus standi

20. He had also indicated to the secretary of the union that the South African Revenue Services would enquire about his income and that he would have to declare his income. He had asked somebody to attend to it and that bank statements, salary advices were required and an IRP3 was to be forwarded to him which he had mentioned to the secretary of the union.

21. In considering this question of representation and the bona fides thereof Mr. Kok must produce such evidence to establish his remuneration which is the alleged contract of employment and also the taxation documents that support this.

22. The submissions of Mr. Kok suggest an income more than that reflected in the contract of employment. For him to enjoy locus standi in matters before this bargaining council I would have to be placed in a position from which to conclude that the members of SHOWUSA are not being charged a fee for being represented by Mr. Kok directly and SHOWUSA indirectly.

23. This is the requirement arising from Mr. Kok’s submission that he had been advised to obtain an IRP3 tax certificate from the union. This is a document given to persons earning moneys in the form of lumpsum payments.

24. This, and the fact that he has submitted a contract of employment showing a fixed salary as remuneration, suggests that Mr. Kok would be remunerated in the form of a salary, which would require the issue of an IRP5 tax certificate, and a fee, which would require the issue of an IRP3 tax certificate. Persons enjoying income in the form of the payment of a fee must be subject to scrutiny of an oversight body, which Mr. Kok clearly is not.

25. In the aforementioned circumstances it was inappropriate that Mr. Kok be allowed to represent the applicant for lack of locus standi.

26. In a consideration of the submissions before me I find it striking that Mr. Kok had considered it a matter of great importance that he be given proof of his remuneration by SHOWUSA. The concern arises from the fact that it is a matter of concern for Mr. Kok in that without his performing his representing function at arbitration proceedings for the union he would in any event be paid his salary which according to his contract of employment is a fixed amount of R7000.00 per month.

27. For Mr. Kok to be appointed as a legal officer would probably mean that his appointment had been made on the basis of his having the legal qualifications that warranted such appointment. Mr. Kok would therefore ordinarily b entitled to represent the members of SHOWUSA in his capacity as a representative/employee of a trade union for which he would enjoy the remuneration stipulated in his contract of employment. That would satisfy the requirement of his representing as a trade union representative in fulfillment of Clause 23 of the ELRC constitution. In terms of trade union philosophy such representation would not be entitled to charge the member being represented a fee for such services rendered. This philosophy, although not encapsulated expressly in the aforesaid clause of the ELRC constitution finds expression in rule 25 of the CCMA rules.

28. It thus becomes critically important that Mr. Kok demonstrates his remuneration with a particular view of placing the commissioner in a position where he or she can take a proper decision that there has been sufficient bona fides demonstrated by the parties to that contract of employment.

29. In particular Mr. Kok would be required to demonstrate more accurately all of the income he derives from the position and how that income is constructed. This must transpire with reference to his remuneration that requires the production of an IRP 3 certificate. This suggests that he also receives remuneration in the form of lumpsum payments over and above that stated in his contract of employment.

30. However, it is clear from the submissions of Mr. Kok that his tax arrangements with the union had not been done, and this after almost a year of employment with the trade union. Again this throws doubt on the bona fides of this right to representation at this bargaining council.

31. The basis for this is of critical importance as it could be construed as his being paid a fee in respect of arbitrations conducted with success manifested in the form of payment to a union member applicant.

32. In the circumstances Mr. Kok would need to demonstrate sufficient for the conclusion to be arrived at that he ought not to be subject to oversight from an appropriate body and therefore that his performance of a representation function at this bargaining council does not include the payment of a fee or other payment that can be construed as such.

33. In fact the submissions of Mr.Kok relating to his tax regime with the union suggests the prevalence of a struggle between them as to what his tax regime is or ought to be. This would not have been an issue were mr. Kok simply employed and remunerated in accordance with only the contract of employment submitted.

34. In the circumstances there has not been sufficient placed before me from which to be satisfied on the bona fides involved in the representation of the applicant by Mr. Kok for the union.

35. The representations of Mr. Kok therefore lead me to conclude that he has not the required locus standi to represent the applicant in these proceedings.

36. In the main matter referred to the ELRC the applicant, on 23 November 2021, was represented by Ms. E.Botha, an official with SADTU (the South African Democratic Teachers Union) of which the applicant is a member. The applicant alleges that she had been unfairly dismissed.

37. 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
38. Each party handed a bundle of documents into evidence and neither recorded any objections. The applicant testified under oath on her own behalf. Francois Wallace Beukes(Beukes), the principal of Esselen Park Senior Secondary School testified under oath for the respondent.

39. It was common cause that the applicant started to work for the respondent at Esselen Park Senior Secondary School in Worcester on 9 March 2021. She was employed as an educator and earned R28038.00 per month

40. The date of dismissal of 5 May 2021 alleged by the applicant is in dispute. The dismissal of the applicant is in dispute.

41. The applicant contends that the first advertisement of the post creates the expectation that the post would be filled until the end of the year.

42. There were 11 vacant posts advertised in 2020 of which only the applicant’s was readvertised in 2021 at the end of the first term. The other temporary teachers thus remained in their post without having to re-apply while the applicant had to reapply. The applicant demands that if the post is still vacant she be placed in that position. The applicant abandoned her pursuit of the alleged unfair labour practice referred to this council for determination.

43. The respondent contends that the post became vacant at the end of January 2021 and that other teachers at the school were appointed to act in that position as Head of Department(HOD) and the applicant was appointed as a substitute teacher to act in the positions of those teachers while they filled the HOD position on a rotation basis. The applicant was therefore not appointed in a substantive vacant post.

44. The respondent therefore contends that there was no dismissal of the applicant as there was no break in her service with the respondent.

The evidence for the applicant:
45. When the applicant had applied for the advertised post she had the expectation that she would be appointed to work at the high school.
46. On 8 March 2021 the deputy chairperson of the SGB called her and informed her that she would start on 9 March 2021. At a staff meeting that day the principal informed the staff, without having spoken to the applicant, that she would be working till the end of the first term.

47. On the last day of that term the principal did not inform the applicant as to whether or not she would be working the next term.

48. The applicant returned to the school on 3 May 2021 at the start of the second term assuming that she would continue as no one told her anything. She started of her own accord.

49. The applicant never had any conversation with the principal regarding the post she is currently occupying.

50. She was informed in an email on 17 May 2021 from Ms. Schroeder, the secretary of the SGB that she had been reinstated in the post from 3 May 2021 to 9 July 2021 and that the post would be advertised again in June 2021.

51. On 15 June 2021 she again applied for the post when it was advertised for terms 3 and 4. Under cross examination she confirmed that she had been appointed into Mrs. Hugo’s natural sciences and life sciences post. She had been at the school for 9 months since March 2021 and received her remuneration monthly since March.

52. The applicant does not think that she was at the school continuously since March 2021 because her term had ended and she again applied for the post in that break together with other applicants.

53. Since she had been reinstated through the email of 17 May 2021 until 9 July 2021 there was uncertainty whether she would still be in the post in terms 3 and 4.

54. She was the successful candidate for terms 3 and 4. She was physically at the school from March 2021 onwards but her appointment was not continuous.

55. The evidence for the respondent:
56. Beukes testified that the post the applicant currently occupies became vacant at the end of January 2021 when Mrs. Hugo resigned. It was the natural sciences and life sciences post.

57. It had been advertised as a post level 1 post as it was already into the term and too late to place it in the bulletin on the vacancy list.

58. The vacant HOD post had been advertised internally. The post was filled on 9 March 2021 when the applicant started to work for the respondent.

59. As the advertisement was for the post until 23 April 2021 with the possibility of appointment until the end of year the applicant was appointed to the end of the first term.

60. When the applicant returned for the second term the post had not been advertised, but the acting chairperson of the SGB, Mr. Ayford(Ayford), had telephoned the applicant that she was appointed in the post.

61. Beukes had recommended to the new SGB that the applicant be appointed in the post for the second term as to do interviews with other candidates would mean the children would be without a teacher for 3 or 4 weeks and that the post would be advertised again for terms 3 and 4. His recommendations were accepted.

62. The applicant had therefore been appointed for two terms including term 2.

63. The post was then advertised in term 2 for terms 3 and 4
64. The applicant therefore had no need to apply for term 2 but for terms 3 and 4 as advertised.

65. Beukes confirmed that there was no break in the applicant’s service at the school until now. When the applicant started at the school there were 11 contract posts of which 7 were contract posts including that of the applicant while the other 4 were ad hoc posts.

66. In 2020 no posts were advertised at the school while 2 were advertised in 2021, viz. that of the applicant and the needlework and clothing post. Both were advertised in the Worcester Standard.

67. When the applicant started there was just a welcome and no discussion regarding the start and end of her contract. There were discussions between Ayford and the applicant.

68. When Beukes saw the applicant on the school premises on 3 May 2021 he assumed she had been appointed after discussions between the applicant and Ayford.

69. Beukes had recommended to the SGB at a meeting on 5 May 2021 that the applicant be appointed as that was when the meeting was held.
70. It was also decided at this meeting to advertise the post for terms 3 and 4. This was to ensure fairness and to afford others an opportunity to apply. The applicant had not been prejudiced in this process.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
71. It is clear from the evidence presented at this arbitration that the applicant alleges an unfair dismissal on account of her having had a legitimate expectation of employment in the advertised post until 31 December 2021. The applicant alleges that such expectation arises from the advertisement itself.

72. A reading of the advertisement shows that the post was for duration to 23 April 2021 with possibilities of appointment until 31 December 2021.

73. The initial contract of employment shows further that the applicant had been appointed until 23 April 2021 and that it does not contain any indication of a promise of further employment thereafter.

74. It appears that the contention of the applicant therefore is that when Beukes at the School Governing Body(SGB) meeting on 5 May 2021 recommended that she be appointed to the end of the second term after which the post would be up for competition with other candidates, this meant the termination of the position into which she had an expectation to be appointed until the end of the year and therefore that she had been dismissed from that position.

75. Regarding the appointment of the applicant for the second term which started on 3 May 2021 the evidence shows that this had been done without the post having been advertised.

76. The only evidence shedding light on the appointment of the applicant for the second term is that of Beukes when he had recommended to the SGB at its meeting on 5 May 2021 that the applicant be appointed for the second term and that this had then been ratified by the SGB.

77. In respect of this recommendation for appointment of the applicant for the second term, by Beukes at the meeting of the SGB on 5 May 2021, I am satisfied with the explanation of Beukes in his testimony that he, when noticing the applicant at the school at the beginning of that term, was of the belief that she had interacted with Ayford regarding her employment at the school for that term.

78. Further in this regard, the email of 17 May 2021 is adequate to serve as the confirmation of her appointment for the second term and with a reminder that the post will be advertised again for terms 3 and 4.

79. Within the context of the initial appointment in terms of the advertisement this cannot be said to constitute a dismissal on 5 May 2021 as there was nothing contained in the first contract that could be construed as creating a legitimate expectation as claimed by the applicant or in a plain reading of the advertisement itself.

80. Even the contract appointing the applicant for the second term until 9 July 2021 cannot be said to have given rise to a legitimate or any expectation that she would be appointed in the post until the end of the year.

81. It must be noted further that the applicant had not been appointed into a substantive vacant post but rather as a substitute teacher in the post of teachers who acted in the HOD post of Mrs. Hugo on a quarterly basis.

82. In this regard I am satisfied that Beukes was aware of this state of affairs when addressing the SGB meeting on 5 May 2021 and that his recommendation was legitimate and acceptable.

83. In fact Beukes was at that point able to validly inform the applicant that she no longer was in the respondent’s employ at the school if he had chosen to do so, but rather recommended her appointment for the second term in the interests of the children who would likely have had to be without a teacher for 3 to 4 weeks were the post still to be advertised and interviews conducted with new candidates. This was also done by Beukes in circumstances where he honestly believed that Ayford had come to an arrangement with the applicant for her continued employment at the school.

84. Furthermore, and towards the end of the second term the post was again rightly advertised so as to afford a fair opportunity to others wishing to apply therefore and without prejudice to the applicant.

85. Furthermore, the fact that the applicant was again appointed into the post for the third and fourth terms dispels the allegation of the applicant that only her post had been advertised on account of discriminatory attitudes by the SGB. There was in fact no evidence adduced of any discriminatory attitudes of members of the SGB for personal reasons.

86. In fact, the testimony of Beukes was that in 2021 and in the second term the post of needlework and clothing had also been advertised because of the resignation of the teacher who occupied that post.

87. This dispels to the notion of the applicant that only her post out of approximately 11 other temporary posts had been advertised. The applicant had also not adduced any evidence showing that not to advertise those other posts was unlawful.

88. Finally, I am able to conclude that in the circumstances, the fact that the applicant had been at the school continuously since her appointment in March 2021 and receiving her remuneration every month renders her claim of dismissal unfounded.

89. Section 186(1)(b) (i) of the LRA also clearly excludes as a valid claim for dismissal one where the employee had been placed or re-instated in a similar position. So even if the appointments were into different posts in different school terms they would clearly be similar and without a change in remuneration of the applicant. The evidence was in fact that the applicant is still in the post that she occupied from the outset.

90. In the circumstances and having considered all the evidence presented at this arbitration I find that the applicant had not been dismissed as provided for in S186(1)(b)(i) or at all and therefore that no unfair dismissal had taken place.

AWARD
91. This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.

10 December 2021