IN THE MATTER BETWEEN

BALOYI & SHIRINDA Inc obo MAAKE G M APPLICANT

AND

DEPARTMENT OF EDUCATION (LP) RESPONDENT

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION:

[1]. The Applicant referred the alleged unfair dismissal dispute to the Council. He alleged that his service was unfairly terminated on the 22nd June 2012. The matter was set down for Arbitration on the 23rd November 2012 and the proceeding was digitally recorded.

[2]. The Applicant, Mr Maake appeared and was represented by Mr Shirinda (Baloyi & Shirinda Inc). The Respondent was represented by Ms Kgoahla (IR specialist for DOE).

ISSUE TO BE DECIDED

[3]. Whether the Applicant was dismissed by the Respondent;

[4]. Should it be proven that the dismissal exist, whether the dismissal was both procedurally and substantively fair or not.

BACKGROUND

[5]. The parties concluded and signed the pre arbitration minutes and narrowed issues as follows:

[5.1]. Common cause

– the Applicant was an educator at Mahlori Secondary School,

– the Applicant was post Level CS1, salary level 06,

– the gross salary was R14583-30 p/m,

– the Applicant rendered service for the Respondent from January 2012 until June 2012, the

29th was the last working day in the June and therefore record will show the last day the

Applicant rendered service to be the 29th June 2012.

– the Applicant was not paid for the service he rendered from January – June 2012.

– the Respondent has agreed to pay the Applicant’s outstanding salary for the period January

until the 29th June 2012.

[5.2]. Issues in dispute

– that the Applicant was ever appointed in a permanent basis,

– that the service of the Applicant was terminated by the Respondent,

– that the Applicant was occupying post 09 upon termination of his service in June 2012,

– that the Applicant was dismissed by the Applicant.

SURVEY OF EVIDENCE

Applicant’s evidence

[6]. Godfrey Matumi Maake: was sworn in by means of administering an oath and testified inter alia as follows:

[6.1]. He applied for the advertised permanent post, on which he was appointed on a twelve month probation period on the 1st February 2008. He was surprised that after the probation period not given a letter of appointment. He took the matter up with the principal to understand but the principal informed him that he will be absorbed into the system, although he did not inform him when he was to be absorbed.

[6.2]. The Applicant testified that he continued to render his services until in January 2012, when verbally informed by the principal that his services has been terminated and the Department instructed him (the principal) to inform him. Further the principal told him that he has received his (the Applicant) termination letter from the head office, however it went missing.

[6.3]. The principal continued to give him contracts and told him that his service will never be terminated. It is his testimony that he has never seen Annexure “A” (termination letter) from the Department and to prove the same, he did not sign for that letter. Annexure “A” as submitted by the Respondent should be the same letter, the principal told him it is lost.

[6.4]. It is his testimony that he continued to work at the same school until in February 2012, when called by the principal informing him that he has been absorbed. Annexure “B”, is the forms given to complete by the principal after he has told him that he has been absorbed. On the 16th April 2012, he was appointed on a permanent post with effect/dating back to the 01st January 2012. He signed the assumption of duty form on the 16th April 2012. The same form (assumption of duty) was signed by the principal and the chairperson of the School Governing body.

[6.5]. He testified that he continued to render his services without payment. At the end of June 2012, he was called into the principal’s office wherein he was summarily dismissed. The Applicant seek reinstatement into his position even if it is at another school. Should reinstatement not be possible, compensation is acceptable.

Respondent’s evidence

[7]. Manyusa Gezani Phillemon (1st witness): was sworn in by means of administering an oath and testified inter alia as follows:

[7.1]. The Applicant started working for the Respondent in 2008. The post in which he was employed was permanent but on twelve month probation. His contract was renewed all the time.

[7.2]. He issued the Applicant with a termination letter on the 31st December 2011. When the schools reopen, the Applicant continued to render his services, merely because the union encouraged them to continue reporting for duty.

[7.3]. He testified that sometime in April 2012, after the termination of the Applicant’s service in December, a meeting was held in which the circuit manager was present. He was instructed during that meeting by the circuit manager to absorb on a permanent basis, the service of the Applicant. He after the meeting contacted the Applicant to notify him of the good news. He invited the Applicant to his office for him to complete the assumption of duty forms.

[7.4]. He confirmed that Annexure “B” is the assumption of duty form which the Applicant signed on the 16th April 2012. Further that himself and the chairperson of the school governing body signed the form. It is his testimony that although the form was only signed on the 16th April 2012, the Applicant’s appointment was effective from the 1st January 2012. He stated that the correct understanding of Annexure “B” was that the Applicant was permanently absorbed in April.

[7.5]. It is his testimony that he terminated the Applicant’s service in June 2012. The reason for termination being that the Applicant was no longer productive. Also that he (Applicant) started to seek clarity on certain issues.

[7.6}. Under cross examination, he confirmed that in June 2012, he called the Applicant to the office and told him not to report for duty anymore. It is his evidence that no procedure was followed upon termination of the Applicant’s service. Further that there is no vacancy available at Mahlori Secondary School. It is also his evidence that the power to appoint and dismiss employees rest with the Head of Department. The assumption of duty form which the Applicant completed was not processed and it was just lying at the Head office. He became aware of the fact that the form was not processed upon making follow up sometime before June 2012 with the office of Mr Munungufhala, hence he decided to terminate the Applicant’s service at the end of June.

[7.7]. He testified that he does not have knowledge as to the reason why the Applicant was not paid. Also that it was his responsibility as a principal to make follow up with the Department as to why the Applicant was not paid, however he did not make such follow up.

[8]. Munungufhala Mashudu: was sworn in by means of administering an oath and testified inter alia as follows:

[8.1]. The department introduced a new process which was to start operating in 2012. As a consequence, a lot of temporary educators were affected and their service terminated in December 2012. The school were the Applicant worked lost almost 9 educators.

[8.2]. He confirmed having knowledge of the assumption of duty form, marked Annexure “B” and stated that it serves a dual purpose. He stated that he received the Applicant’s form in his circuit. Sometime after he received this form, the Applicant, principal and the union official paid a visit to his office and it was indicated that there was no post/vacancy at Mahlori secondary school. It is also his evidence that at that time the Applicant’s service was already terminated in December 2011.

]8.3]. He testified that it is not true that he authorised the principal of Mahlori secondary school to issue assumption of duty forms to the Applicant. The district wrote a letter terminating the Applicant’s service and it was issued to the school principal. Further that it was his duty to ensure that the Applicant received the termination letter. He however dispute the evidence that the Applicant never received the letter because it was common that all temporary educators’ service will be terminated.

[8.4]. It is his evidence that he was aware that the Applicant was temporarily appointed. Also that it is the duty of the principal to issue newly appointed educators with contracts.

[8.5]. Under cross examination, he testified that his duties as a circuit manager includes amongst other things supporting schools, learning and teaching at schools, issuing of text books and the issue of curriculum delivery at schools. Also recommendation of appointment of school educators fall within his responsibilities.

[8.6]. He testified that sometime in April 2012, he convened a meeting at Mahlori secondary school and the school principal was in attendance at his call. The purpose of the meeting was to deal with the introduction of post establishment programme. He did not give the principal a go ahead to appoint or issue assumption of duty forms to the Applicant. He became aware of the assumption of duty form in April. He told the principal that there is no point for him to send the form to the district because there was no post.

ANALYSIS OF EVIDENCE AND ARGUMENTS

[9]. I am required in the present dispute to determine whether the Applicant was dismissed by the Respondent. In the event dismissal is proven, to determine whether the dismissal was both procedurally and substantively unfair.

[10]. Both parties’ evidence is set out in detail supra, I therefore intend not to repeat the evidence but to remark as follows:

[11]. It is common cause that the Applicant was employed by the Respondent as an educator in February 2008. Although the terms of that employment is in dispute, the evidence of the Respondent is that the Applicant was employed on a fixed term contract. The Applicant on the other hand testified that he was employed on twelve month probation in a permanent post. Further that he was not aware that he was on a fixed term contract. In proving that the Applicant was employed on a fixed term contract in 2008, the Respondent submitted copies of the Applicant’s contracts over a period of time until the termination of his contract.

[12]. Having testified that the Applicant was employed on a fixed term contract in 2008, the Respondent stated that his service was terminated on the 31st December 2011. Further that the Respondent through the principal issued this termination letter to the Applicant.

[13]. Despite the Respondent’s evidence that the Applicant’s fixed contract was terminated in December 2011, the Applicant testified that he continued to render his services at Mahlori Secondary School until June 2012, when the principal terminated his service. The Applicant submitted as evidence Annexure “B” which is the assumption of duty form signed by both the Applicant and the Respondent ( the chairperson of the governing body and the principal of the school).

[14]. At this point and on the basis of the evidence highlighted in paragraph 13 supra, I conclude that it will be a pointless exercise for me to deal with the question whether or not the Applicant was employed on a fixed term contract. The reason being that the Respondent adduced proof in a form of termination letter, which explains that the Applicant’s service at Mahlori Secondary school will no longer be required at the end of December 2011. The Applicant on the other hand dispute ever receiving the termination letter. However, I see no point in the Applicant arguing or proving that he did not receive the letter of termination. The mere fact that the Applicant signed the assumption of duty form (i e Annexure “B”) on the 16th April 2012, according to which he was employed on a permanent basis effective from 01st January 2012, renders the fixed term contract signed in 2008 a non – issue.

[15]. The crux of this case is the issue(s) in dispute, the question whether the Applicant was permanently employed by the Respondent, also whether his service was terminated by the Respondent. In addressing this questions regard must be had to the parties’ pre arbitration minutes. However, it is deem fitting that I draw the parties’ attention to the effect of certain aspects of the pre arbitration. Rule 20 ( pre arbitration rule) provides for 18 matters to be dealt with at the pre arbitration meeting. The focus in this case is with facts that are agreed between the parties (ie common cause) and facts that are in dispute.

[16]. Firstly, the effect of facts that are agreed between the parties:

The effect of a fact which is admitted is that it is eliminated from the issues to be arbitrated and the parties are relieved of the duty to produce evidence to establish it. The parties are also estopped, for the purpose of that dispute, from contending to the contrary.

[17]. Lastly, the effect of facts that are in dispute:

Facts that cannot be agreed to, i e that are not common cause and are not agreed to be true, become facts that are in dispute. It may be recorded in the minute that a party reserves the right to argue at arbitration that a fact in dispute is not relevant to the dispute being arbitrated.

[18]. It is also important to note that whilst it is common cause that the Applicant rendered services for the Respondent from January 2012 – June 2012, it is in dispute that the Applicant was ever appointed on a permanent basis by the Respondent. Also that the Applicant’s service was terminated by the Respondent. However that being the case, the Respondent does not dispute that the Applicant was an employee for the Respondent. Even more better, the Respondent has placed on record at the beginning of the proceedings that it will pay the Applicant the salary for the period he worked ( i e January 2012 – June 2012).

[19]. It is my duty to ascertain on the evidence presented that the Applicant was appointed on a permanent basis in April 2012 effective from January 2012. Also whether the Applicant was dismissed by the Respondent at the end of June 2012.

[20]. It is the evidence of the Applicant that he completed an application form for the permanent post and signed the assumption of duty on the 16th April 2012. He testified that this occurred after the school principal informed him that he (school principal) had a meeting with the circuit manager, who authorised him to appoint the Applicant on a permanent position and his appointment to be effective from the 01st January 2012.

[21]. The Applicant submitted as evidence Annexure “B” which is the assumption of duty form and signed by the Applicant, the school principal and the school governing body. This evidence was corroborated by the school principal. He testified that indeed he had a meeting with the circuit manager (Munungufhala Mashudu). The meeting was held at the school sometime in April and the result of that meeting was that he should appoint the Applicant on a permanent basis. He stated that he immediately out of excitement contacted the Applicant to report to his office to complete and sign the assumption of duty form (i e Annexure “B”).

[22]. It is his testimony that he issued the Applicant with the assumption of duty form, which was duly signed by the Applicant, himself and the school governing body on the 16th April 2012. Further that the Applicant’s appointment was effective from January 2012. The principal’s evidence was disputed by the circuit manager as not true.

[23]. The circuit manager confirmed that indeed he had a meeting with the school principal sometime in April 2012. The purpose of the meeting was to address a new process which the department was introducing and to start operating in 2012. He testified that he has knowledge of the assumption of duty form which is of dual purpose. He confirmed that the Applicant’s assumption of duty form was received by his office ( circuit). However sometime after his office received the Applicant’s assumption of duty form, the school principal, the union official and the Applicant visited his office and it was indicated there is no post at Mahlori secondary school. Further that in any event the Applicant was already terminated in December 2011.

[24]. Of importance with the circuit manager’s evidence is that despite him denying giving the school principal the authority to appoint the Applicant, he confirmed receipt of the assumption of duty form. This evidence that the circuit received the Applicant’s form is corroborated by the principal’s evidence that he did sent the form as required to the circuit office but it was just lying there without being attended. The question that begs an answer is whose duty was it to ensure that the Applicant’s form was processed. Also if the appointment as recommended by the principal and the school governing body was not approved by the circuit manager, why was the Applicant allowed to render his service until in June 2012.

[25]. Regard must be had to the fact that it is common cause that the Applicant rendered service to the Respondent from January 2012 – June 2012. This means that the fact admitted is eliminated from issues to be arbitrated and the Applicant is relieved of the duty to present evidence to prove it. This means that the circuit manager’s evidence that the Applicant’s service was terminated in December 2011 holds no water.

[26]. The question is whether an employment relationship existed between the Applicant and the Respondent. A contract of employment is an agreement between two legal personae (parties) in terms of which one of the parties (employee) undertakes to place his or her personal services at the disposal of the other party (the employer) for an indefinite or determined period in return for a fixed or ascertainable remuneration, and which entitles the employer to define the employee’s duties and to control the manner in which the employee discharges them.

[27]. In this case, the Applicant accepted a contract of educator’s post and signed the assumption of duty. The same forms were signed by the school principal and the school governing body. The assumption of duty form stipulates that “the assumption of duty form can only be completed if the educator has accepted the contract”.

[28]. The primary duty of employees is to place their personal services at the disposal of the employer, while that of the employer is to remunerate the employee. Once there is agreement on these two issues, the contract is complete and legally operative.

[29]. The fact that the Applicant rendered his service to Mahlori secondary school from January until June and the Respondent agreeing to pay the salary for the period he worked, means that there was a valid contract of employment entered into between the parties. The above piece of evidence proofs that an employment contract existed between the parties. I therefore conclude that the Applicant was appointed as a permanent educator on the 16th April 2012 but effective from the 01st January 2012.

[30]. Regard must be had to the fact that two witnesses for the Respondent (school principal and circuit manager) are senior personnel vested with the authority to recommend/ appoint educators. As much as it is not my duty in this proceedings to insinuate that witnesses be charged, I have a duty to give reasons for my decision. The contradiction in evidence between the two personnel amount to negligence in performance of their duties, which might cause serious miscarriage of justice, hence I believe is a matter that requires to be dealt with internally.

[31]. Having established that the Applicant was appointed on a permanent post, the issue remaining is whether he was dismissed by the Respondent or not. The precise evidence of the school principal in this regard is that he terminated the Applicant’s services in June because the Applicant was no longer productive. Also that the Applicant started seeking clarity in a lot of issues.

[32]. He further testified that he is aware of the procedures to follow prior to dismissing any employee and he did not follow those procedures in this case.

[33]. Section 188(1)(a)(i)(ii) and (b) of the LRA 66 of 1995 as amended provides that:

(1). A dismissal that is not automatically unfair, is unfair if the employer fails to prove-

(a). that the reason for dismissal is a fair reason-

(i). related to the employee’s conduct or capacity; or

(ii). Based on the employer’s operational requirements; and

(b). that a dismissal was effected in accordance with a fair procedure.

[34]. In this case, the school principal testified that he terminated the Applicant’s service without following the necessary procedure. Further the reasons for termination of the Applicant’s service as advanced by the school principal do not relate to the Applicant’s conduct or based on the employer’s operational requirements.

[35]. In light of the above and taking all the factors into consideration, I am satisfied the Applicant has proven on a balance of probabilities that he was appointed by the Respondent on a permanent post and that he was dismissed by the Respondent at the end of June 2012. Further that his dismissal was both procedurally and substantively unfair.

[36]. Section 193(1)(a) of the LRA provides that:

(1). If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may-

(a). order the employer to reinstate the employee from any date not earlier than the date of dismissal;

[37]. The Applicant’s representative submitted in closing argument that due to the school principal and circuit manager’s evidence that there is no vacancy at Mahlori secondary school, reinstatement seem not possible and compensation will be the appropriate relief.

[38]. Section 193(2)(a) & (c) in this regard provides that:

(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the

employee unless –

(a). the employee does not wish to be reinstated or re-employed;

(c). it is not reasonably practicable for the employer to reinstate or re-employ the employee;

[39]. Apart from reinstatement or re- employment, the only competent relief that may be granted unfairly dismissed employees is compensation. The amended section 194(1) reads:

“ the compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal”.

In Alpha Plant and Services (Pty) Ltd v Simmonds & others (2001) 3 BLLR 261 (LAC) the Labour Appeal Court held that, in exercising the discretion to award compensation, regard should be had to factors such as the degree of the employer’s departure from the requirements of fair procedure, the employee’s conduct and the employee’s length of service.

[40]. Although the Applicant was employed on a permanent post only for six months(i.e from January 2012 until June 2012), I find the manner in which the Respondent dealt with this case not only unfair but shocking, taking into consideration the fact that the Respondent is an institution equipped with employees who are highly skilled in labour (i e labour relations specialist and human resource department). The Respondent could have sought advice in terms of proper procedures to be followed prior to taking a decision to dismiss the Applicant.

Apart from the fact that the Respondent failed to prove that the reason for dismissal was fair, the procedural unfairness of the Applicant’s dismissal is not a question of a slight departure by the Respondent of the principle of a fair hearing. The Respondent has shown total disregard of the requirements for a fair pre- dismissal procedure as set out in item 4(1); Schedule 8: Code of Good Practice: Dismissal.

[41]. It must be borne in mind that in terms of section 193(1)(a) if it was reasonably practicable, the appropriate relief for the Applicant on the strength of the evidence presented could be retrospective reinstatement, this means that as a Commissioner I would have a discretion to reinstate the Applicant from any date between the day the award is issued and the date of dismissal. In this case, it is not reasonably practicable for the Applicant to be reinstated as indicated in paragraph (37) supra. In light of the above, I regard a just and equitable compensation in this case and considering all the circumstances mentioned supra to be eight (8) month compensation.

AWARD

I therefore make the following order:

– The Applicant was dismissed by the Respondent on the 29th June 2012.

– I find the dismissal to be both substantively and procedurally unfair;

– The Respondent must compensate the Applicant eight (8) month salary, calculated at a salary

scale of R14583-30p/m, which is equivalent to R116666.00(one hundred and sixteen thousand,

six hundred and sixty six rand only), less applicable statutory deductions;

– The amount which is just and equitable in the circumstance;

– The said amount to be paid not later than the 15th February 2013;

– No order as to costs.

THUS DONE AND SIGNED ON THIS 15TH DAY OF JANUARY 2013.

ADV LISA MOSALA MATLATLE

ELRC PANELIST