Panelist: Jonathan Gruss
Case No.: ELRC42-21/22GP
Date of Award: 8 June 2021

In the ARBITRATION between:

Simphiwe Masuku
( Applicant)

and

Department of Education: Gauteng

(Respondent)

Applicant’s representative: In person
Telephone: 0685313424
Email simza.bolt@gmail.com

Respondent’s representative: Mrs Mnisi
Telephone: 0118315480
Email: Nomvula.Mnisi-Dhlamini@gauteng.gov.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 4 June 2021 and the proceedings were electronically recorded. The applicant, Simphiwe Masuku referred an enforcement dispute to the ELRC. The applicant conducted his own case. The respondent, Department of Education: Gauteng was represented by Mrs Mnisi, Deputy Chief Educational Specialist: Dispute Management.

ISSUE TO BE DECIDED
2. This dispute concerns the alleged non-payment of the applicant’s salary for the period December 2019 to date of arbitration. I am required to determine whether the respondent is indebted to the applicant for the payment of outstanding remuneration.

BACKGROUND TO THE ISSUES

3. The applicant claims that the respondent during December 2020 suspended payment of his salary and has continued to do so to date. He earned R23 586.50 pm and seeks an order directing the respondent to reinstate his salary and pay him for the period he was not paid.

4. The respondent claims that the applicant’s salary was stopped on 3 December 2020 and on 25 January 2021, the applicant was informed via an official correspondence that the provision of Section 14(1)(a) had been implemented in that the applicant had absconded for a period longer than 14 consecutive work days and as a consequence thereof, he was deemed to be dismissed due to operation of law for misconduct. The applicant thereafter on 27 January 2021 made representation explaining his absence and sought to be reinstated. The applicant submitted a medical report from his doctor indicating that he was sick due to mental illness for the period 9 July 2019 to 16 October 2019. The respondent did not accept the applicant’s representation and therefore he was not reinstated. The respondent further argued that the reason why the applicant’s salary was stopped was due to him absconding and not tendering his services. He was further not paid in that he due to operation of the law was deemed to be dismissed. 

SURVEY OF EVIDENCE

5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

6. The applicant gave evidence under oath to the following effect. At the start of 2019, he started receiving emotional abuse from his Deputy Principal, who called him a basted and a monkey. He approached the respondent with a doctor’s letter and requested a transfer away from the school where he was working. He was told that he must look for a school himself. During September 2019, he found a school near to where he was residing, Phefeni High School situated in Orlando West, Soweto. He worked at that school from September 2019 to January 2020. Towards the end of January 2020 he was called to the District Office by Mr Jaftha and was instructed to report to the District Office. This he did during the period January to March 2020. During that period he was also charged with having allegedly tampered with the marks at the school he worked at during 2018. When the lock down started in March 2020, he stayed at home until the country moved to stage 3 during May 2020. He then returned to the District Office in order to tender his services. He was told that he was not allowed to enter the offices without an appointment. He was then prevented from tendering his services.

ANALYSIS OF EVIDENCE AND ARGUMENT
7. Clause 7.2. of Annexure “C” (Dispute Resolution Procedures ) of ELRC Resolution 6 of 2016 provides that subject to clause 7.2.2, any party to a dispute may elect to refer such dispute for a compliance order in terms of clause 69 regarding:
7.1 any dispute concerning a contract of employment, irrespective whether a basic condition of employment set in the BCEA constitutes a term of that contract; or
7.2 any dispute regarding the alleged non-compliance with a provision of the BCEA, subject to clause 7.5.

8. Clause 69(2) also provides that a Collective Agreement of the Council is deemed to include:

8.1 Any basic condition of employment which constitutes a term of a contract of employment of any employee covered by the Collective Agreement in terms of section 49(1) of the BCEA; and;
8.2 subject to clause 7.5, any other basic condition in the BCEA applicable to an employee falling within the scope of the Council where such employee’s employer is a party to the Council;

9. Clause 69.5 provides that the General Secretary may refer any unresolved dispute concerning compliance with any provision of a Collective Agreement to arbitration by a panellist appointed by the Council or the CCMA, as the case may be. Sub-clause 6 provides that a panellist, conducting an arbitration in terms of this clause 69 and section 33 of the Act, has the powers of a Commissioner in terms of section 142 of the Act, read with the changes required by the context.

10. Section 32(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA) states that an employer must pay to an employee any remuneration that is paid in money – in South African currency; daily, weekly, fortnightly or monthly; and in cash, by cheque or by direct deposit into an account designated by the employee. Subsection (3) states that an employer must pay remuneration not later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment. The payment of any employee’s wages forms part of his conditions of service.
11. The applicant conceded that the reason rightfully or wrongfully why his salary was stopped and why subsequent to the stopping of his salary he was not remunerated was because he was deemed to be dismissed due to operation of the law.

12. In the matter of Nama Khoi Local Municipality v SA Local Government Bargaining Council & others (2019) 40 ILJ 2092 (LC), the employee had been employed by the municipality on two successive three-month fixed -term contracts. When the second contract terminated on 31 March 2017, the employee was notified that his employment had come to an end. A few days earlier the employee’s union, IMATU, had referred a dispute to the bargaining council, SALGBC, in terms of s 198D of the LRA 1995 seeking an order that the employee’s contract be deemed to be of indefinite duration in terms of s 198B (5). In arbitration proceedings the arbitrator found that the employee was indefinitely employed and, because his employment had already been terminated, directed the municipality to reinstate him. The employer approached the Labour Court to review the award, contending that the employee had not been dismissed, that there was no unfair dismissal dispute before the arbitrator, and that he had therefore not been competent to order reinstatement. The court found that in this matter IMATU did not refer an unfair dismissal dispute to the SALGBC, it referred a dispute relating to the application of s 198B , which referral was made in terms of the provisions of s 198D. It never sought to make out a case that a dismissal existed. As such, it could only obtain declaratory relief under s 198D to the effect that s 198B (5) applied and that the employee was not employed on a fixed -term contract of employment, but was an indefinitely employed employee. However, this relief was only competent if the employment relationship still existed, as it could hardly be said that someone who had already been dismissed was indefinitely employed. The LC held that the declaratory relief would be of no practical effect and would be moot. Furthermore, reinstatement could not be awarded where no dismissal had in fact been proven.

13. Having regard to the lessons learnt from the Nama Kho judgement, a Section 33A contractual claim for wages not paid cannot be used as a vehicle to address or remedy a dismissal, whether it is in terms of Section 186 or in terms of Section 14(1)(a) of the EEA. What is clear, the stopping of the applicant’s salary was as a consequence to either an alleged unfair dismissal or as a consequence to a deemed dismissal due to operations of the law. Accordingly, to remedy the stoppage of salary/ remuneration as alleged, the applicant will have to first challenge either his alleged unfair dismissal or the deemed dismissal due to operation of law as contemplated in term of Section 14(1)(a) at the appropriate forum.

14. I therefore make the following award.
AWARD

15. The applicant, Simphiwe Masuku has failed to prove that he was entitled to be remunerated by the respondent, Department of Education: Gauteng for the period December 2020 to date.

16. The referral is therefore dismissed.

Name: Jonathan Gruss
(ELRC) Arbitrator