Case Number: ELRC96-26/27 NW
Commissioner: Annelie Bevan
Date of Award: 11 August 2026

In the matter between

T MASIBI

(Union/Applicant)

And

NORTH WEST PROVINCE, DEPARTMENT OF EDUCATION

(Respondent)

Details of the hearing and representation

1. The ELRC scheduled the arbitration for the arbitration about the unpaid salary between T Masibi, the Applicant and the Department of Education, North West Province, the Respondent, for 09h00 on 30 July 2026 on the online platform Teams.
2. The Applicant represented himself and Mr T Mashaba represented the Respondent.
3. The arbitration was held under the auspices of the ELRC in terms of section 33A(4) of the Labour Relations Act, No 66 of 1995, as amended (the LRA), read with Clause 7.2 and 69 of the ELRC Constitution, and the award is issued in terms of Section 138(7) of the Labour Relations Act, No 66 of 1995 (LRA, as amended).
4. The arbitration was electronically recorded, and I made typed notes.
5. The arbitration was finalised, and the parties agreed to submit written closing arguments by 6 August 2026.

The issue to be decided

6. I must decide whether the Respondent paid the Applicant’s salary for January to 8 April 2026, and if not, the appropriate relief.
7. The Applicant seeks payment of his salary for the period January to 8 April 2026.

Background to the matter

8. The Applicant referred a dispute about the non-payment of his salary to the Council on 3 May 2026. The matter was unsuccessfully conciliated on 18 May 2026, and a certificate of non-resolution was issued on the same date. The Council scheduled the dispute before me for arbitration on 30 July 2026.
9. On 30 July 2026, the parties agreed that the following are common cause:
   9.1 The Applicant was appointed in a temporary capacity to teach mathematics at Gakhunwana Secondary School as a PL1 teacher for the period September to 31 December 2025.
   9.2 The Applicant was paid a gross monthly salary of R29 331.00, with a 37% service bonus for the above temporary contract.
   9.3 The school principal called the Applicant in January 2026 to fill in the necessary forms to again be appointed for the same post for the first term.
   9.4 The Applicant rendered the required service until 8 April 2026.
   9.5 The Respondent never paid the Applicant a monthly salary until he left on 8 April 2026.
10. On 30 July 2026, the parties agreed that the following issues remain in dispute:
    10.1 Whether the Respondent appointed the Applicant as a temporary teacher in 2026?
    10.2 Whether the Applicant had a legitimate expectation of being paid a salary for rendering services, as he followed the same process as the previous year and was assigned work by the principal?
11. As the Applicant alleged that he was not paid his salary, he bears the onus of proving this allegation.
12. The Applicant submitted bundles A1 to A4, and the Respondent submitted a bundle, marked R.
13. The Applicant testified, and the Respondent called two witnesses, namely

Evidence and submissions of the parties

The Applicant testified under oath:

14. Appointed by Principal Mrs Rabaje in January 2026 to teach Mathematics, he worked under her supervision. He referenced his signed subject allocation and timetable in Bundle A2, listing him as teacher no. 22.
15. He relied on section 16(3) of the South African Schools Act and section 6(3) of the Employment of Educators Act, arguing that the Principal manages the school and acts as the employer’s representative in duties.
16. The Applicant testified he performed all teacher duties, documented in the bundle, and referred to Annexure D as departmental approval. He stated he acted on the Principal’s instructions, taught learners, and the Department benefited from his services.
17. The Applicant stated that the Principal assured him of a vacant substantive post, previously held by another educator, which he occupied from September to December. He also testified that he reported for duty daily and used the school time book in Bundle A1 as evidence of his attendance and service.
18. The Applicant argued it was unfair not to be paid for services from January 2026 to 8 April 2026, requesting the ELRC to recognise his work and pay outstanding salary and benefits. He emphasised that Annexure D approval was an internal process, and he should not suffer due to administrative delays, especially since he had performed the work and the Department benefited.
    Under cross-examination, he testified:
19. The Applicant has extensive education experience, including roles as Head of Department and Deputy Principal, but is not familiar with the Department of Education’s formal appointment procedures.
20. Much of the cross-examination focused on the authority to appoint educators. The Applicant argued principals, acting for the Department, give him instructions, not solely the HOD or District Director. He believed HOD powers at the school level are held by the principal.
21. Regarding his 2025 employment, the Applicant testified he started working at the school in September after being called by the principal. He was paid from September to December but received no termination letter. He assumed his contract ended in December, and only in January 2026, during a visit to the District Office, was he informed that records show an end date of 31 December 2025. He then sought other employment before being called back in January 2026.
22. The Applicant acknowledged he hadn’t received formal appointment letters for 2025 or 2026, but relied on the signed time book, subject allocation, WhatsApp messages, and salary advice as evidence of his appointment and services. He argued that the lack of a letter didn’t mean he wasn’t appointed.
23. The cross-examination focused on Annexure D and the approval process. The Applicant explained that Annexure D shows the school’s posts, including vacancies, and that once a vacancy was approved, the principal could recruit a teacher. He stated that when called to work, he assumed approval was already obtained.
24. The Applicant was shown that Annexure D was unapproved and that no educator should resume duty without written approval, which he accepted as department policy but claimed it was a matter between the principal and the Department. He believed Annexure D was approved because the principal called him to work.
25. The Applicant accepted the appointment process involved the principal, Circuit Manager, and District structures, requiring approval before appointing an educator. However, he couldn’t produce specific approval from the Department or District Manager. He argued that documents from the school were Departmental and that he couldn’t distinguish between the school and the Department, given his work instructions.
26. The Applicant confirmed in the incident book that he resigned due to non-payment. He explained that after three months without pay, he visited the District Office, was referred to the Labour/HR office, where the Acting HR Manager acknowledged his problem, said the District allocated a pool post to the school, and assured him he would be paid. He returned to work after a call from the principal and an assurance of payment.
27. The Applicant testified that the Circuit Manager told him his forms were returned from the Department and she was handling it with senior District officials. He believed this was about payment, not his appointment’s validity. He stated he was already appointed because he had started teaching as instructed by the principal.
28. The Applicant disagreed that the lack of Annexure D approval prevented lawful recruitment or appointment, arguing that responsibility for approval fell on the principal and Department, not him. He claimed he had no role in monitoring internal processes and reasonably relied on the principal’s instruction to report for duty.
29. In conclusion, the Applicant claimed he provided services under the principal’s instructions, and that the principal, Circuit Manager, and Acting HR Manager created a reasonable expectation of payment. He argued that the Department should not avoid paying by citing its internal appointment failures. If the principal acted incorrectly, the Department could take action against her, but the Applicant should not bear the consequences of the Department’s administrative failure.
    The Respondent’s first witness, Mrs Mokakale testified under oath:
30. She is the Acting Circuit Manager for the Makhuana Circuit since 7 April 2025, supporting schools and overseeing curriculum delivery.
31. She identified the report in Bundle R1, page 1, which she submitted after visiting the school. She explained that on 21 May 2026, she met with the School Management Team (SMT) to assess the school’s function and the Applicant’s placement.
32. Regarding the Applicant’s 2026 employment, the witness testified that he went to school on 12 January 2026 after being called by the principal to complete appointment forms. He stayed until 4 March 2026, when she instructed the principal to release him because the required Annexure D approval and pool post application had not been obtained.
33. The witness explained that Annexure D requests approval to fill a vacant post temporarily. In this case, the request was made but not approved, and she stated that without approval, the educator may not resume duty. She referred to departmental instructions, which specify that an educator should not resume until written approval is granted.
34. She explained her role in the Annexure D process, which includes an application form with school educator info. The principal identifies the educator, and the Circuit Manager verifies the information. She stated she cannot appoint educators; that authority belongs to the District Director or HOD.
35. The witness stated that in 2026, the Applicant was not employed by the Department of Education or the SGB. She said the principal called the Applicant to complete forms, and the Applicant understood the process was pending. Despite this, the Applicant agreed to teach while awaiting approval.
36. Mokakale testified she knew the Applicant from his teaching at the school between September and December 2025 and had no direct engagement with him until he inquired at the District Office about his appointment progress, which was still pending approval. The District considered using a pool post, but it was not approved. She explained that pool posts are typically used for maternity, long-term sick leave, or staff shortages.
37. The witness said that when she told the Applicant about senior management considering pool posts, he was heading to a workshop. She promised to give feedback post-meeting. She confirmed he provided teaching services but said this didn’t create an employment relationship since he had no contract with the Department or SGB. Therefore, she testified the Respondent owed him no payment.
38. Mokakale confirmed that educators often volunteer at schools, especially where vacancies are known. She explained that volunteering involves providing services without expecting payment or a guaranteed post.
    Under cross-examination, she testified:
39. She insisted she was truthful and denied lying about the Applicant’s school status. She said she first learned during her engagement with the SMT that the Applicant was viewed as volunteering at the school. She explained that the Applicant had filled out the relevant forms but the appointment still needed approval.
40. The witness discussed the Math and Science teacher shortage, confirming she suggested hiring a qualified educator. She denied telling the principal to call the Applicant, noting he might have been chosen due to past service.
41. Mokakale said the school needed a pool post since the Annexure D post wasn’t approved, and they still needed a qualified Math and Science teacher. She confirmed Annexure D is used to request posts from the Department and couldn’t remember the exact number of vacant posts in the PPM when it was filled out.
42. The witness explained that the principal fills out Annexure D and submits it for approval. After approval, the principal informs the educator to assume duty. The application and qualifications are attached, but the educator does not complete Annexure D. Usually, an educator is called to duty after Annexure D is approved.
43. When told that the Applicant had worked during the approval process, she acknowledged this but insisted it didn’t mean he was appointed. She said he was called to complete forms, then released pending approval, and later understood he continued teaching while waiting.
44. The witness was challenged on whether it was credible that an experienced Mathematics and Science teacher, such as the Applicant, would volunteer. She maintained that the Applicant volunteered, though she could not speak for him. She said the principal and two HODs told her he agreed to continue working while awaiting Annexure D approval. When told that waiting for approval isn’t volunteering, she explained that, knowing no payment would be made until approval, she considered it volunteering.
45. The Applicant challenged the witness about events on 8 April 2026 and her alleged talks with the Acting HR Manager regarding his payment. Mokakale said she could not recall that date and did not know the Acting HR Manager called Cynthia. She stated that by 4 March 2026, it was clear the Annexure D application was not approved and the pool-post plan had not materialized. She then instructed or arranged for the Applicant to stop working.
46. The witness was questioned about the Applicant’s visit on 17 February 2026 to inquire about payment. She said she told him payment could only follow approval of Annexure D. The Applicant disputed this, claiming she showed him his forms and said she was waiting on discussions with senior officials about the pool-post arrangement. Mokakale acknowledged the forms were returned and that she said she would communicate with senior management. She stated the forms were returned because they were not approved, as the school already had more educators than allowed.
47. The witness, a former principal for about 31 years, was questioned about her experience. She noted she recruited many teachers but distinguished recruitment from formal appointment. HR issues appointment letters, which principals hand to educators. In practice, educators may start work before receiving the letter, which can follow after they assume duty.
    The Respondent’s second witness, Mrs Rabaji testified under oath:
48. Mrs Rabaji, Principal for about five years, manages the school, leads the SMT, oversees teaching and timetabling, and participates in recruitment and other committees.
49. On 12 January 2026, she called the Applicant to complete Annexure D and the application forms. The Applicant wanted to teach learners while awaiting approval, and Rabaji agreed, as the learners needed instruction and the Applicant had taught the subject previously.
50. Rabaji saw the Applicant’s ongoing teaching pending approval as volunteering. She testified there was no agreement with the Department, school, or SGB, and no written contract. The arrangement was verbally based, with the Applicant continuing to teach so learners wouldn’t fall behind.
51. Rabaji acknowledged the Applicant provided teaching services but said it wasn’t authorised by the Department. She submitted Annexure D for approval, which was never granted. She also stated the Applicant didn’t request payment from the school or SGB, as he was waiting for approval.
52. She testified she was not an appointing officer, only involved in recruitment via Annexure D. If not approved, the educator had to stop working. The Applicant was informed on 4 March 2026 that the post was not approved. Initially leaving, he later approached Mr Modirwa, who told him to return. After consulting with the Circuit Manager, the Applicant returned and continued working.
53. Rabaji confirmed she and the Circuit Manager prepared the report in Bundle R1 on the Applicant’s services and discussed payment with the SGB, but it was not pursued after the Applicant referred the matter to the ELRC.
54. The witness confirmed the Applicant was a teacher representative on the SGB and that he was informed that payment would be discussed, though he was not involved in the discussions.
    Under cross-examination, she testified:
55. She corrected her statement that the Applicant attended school on 13 January 2026, clarifying he started teaching on 14 January 2026. She denied he told her on 13 January he planned to volunteer, insisting he said he wanted to teach while waiting for Annexure D approval.
56. The Applicant compared his 2026 circumstances with his September 2025 appointment. Rabaji confirmed that, in 2025, she called him to complete Annexure D, it was approved in about three days, after which he was informed of his appointment and paid from September. She maintained that his initial three days in 2025 were spent awaiting appointment, though she acknowledged he was paid for those days. She could not explain why HR paid him from the start.
57. Rabaji confirmed she manages the school but doesn’t control HR or salaries. She had no power to approve Annexure D, as approval depended on the HOD or District Manager.
58. The applicant loaned Rabaji R8,000 on 26 March 2026, to help with petrol money. She clarified it was a private loan, not department-instructed. She had hoped Annexure D would be approved, but saw this as a personal wish.
59. The witness explained the Applicant was initially called because the 2025 PPM reflected a post, but the 2026 PPM changed after learner enrollment declined. This affected her position, and she maintained that the Applicant couldn’t be declared an educator “in addition” because he had not been appointed or included in the applicable PPM. She also confirmed that the Annexure D application was never approved in 2026.
60. The Applicant questioned Rabaji if she told him he was volunteering or instructed him to teach. She said he didn’t use the word “volunteer”, but said he’d teach while waiting for Annexure D approval. She called this volunteering since he wasn’t appointed. She denied instructing him, saying he started teaching to prevent learners from falling behind.
61. The Applicant challenged the witness on her allowing him to work without informing him of nonpayment. She said he knew he was not appointed as he had no salary. She admitted lending him money, explaining it was because he asked for help and after discussions about a pool post.
62. Rabaji confirmed Mr Modirwa told her to return the Applicant to school after Annexure D was not approved. She couldn’t refuse a senior official’s instruction and believed a pool post had been promised to the Applicant, so she let him return to work.
    Under re-examination, she testified:
63. During re-examination, Rabaji stated that instructing the Applicant to go to class was not an appointment. She confirmed the Applicant was temporarily appointed in 2025, with Annexure D approved then, but not in 2026. She said she lacked authority to approve it, and the Applicant wasn’t employed by the Department or SGB in 2026.
64. I thank the parties for the closing arguments submitted and considered.

Analysis

65. I intend to offer brief reasons in my analysis as per Section 138 (7) of the LRA as amended, which states, “Within 14 days of the conclusion of the arbitration proceedings – the commissioner must issue an arbitration award with brief reasons”.
66. Under Part C, Part 3, Clause 9.1.4 of the ELRD Dispute Resolution Process, a dispute about monies owing must be referred to the Council within 90 days. On 8 April 2026, the Applicant realised that the Respondent would not pay his salary, and he referred a dispute to the Council on 3 May 2026, which constitutes a timeous referral.
67. The onus to establish the conduct complained rest on the Applicant, based on the principle that he who avers must prove. The Applicant must lay the evidentiary foundation on a balance of probabilities for his claim to succeed.
68. Clause 69.6 of the ELRC Constitution provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act; the Employment of Educators Act; the Personnel Administration Measures (PAM), or any regulation or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in respective of any province where an educator is employed as it relates to conditions of service, a collective agreement and the contract of employment.
69. Clause 69.6 permits an educator to refer a dispute to the ELRC concerning the failure to pay an amount owing to the educator, provided that the amount is due and payable in terms of one of the instruments or sources of entitlement identified in the clause.
70. Accordingly, the basis for a claim of non-payment must be an identifiable entitlement arising from one of these instruments or from the contract of employment, and the dispute must concern the employer’s failure to pay an amount that is owing in terms thereof.
71. The clause states that “an educator may refer a dispute to the ELRC regarding unpaid amounts”. An educator’s status signifies an employment relationship between the Applicant and the Respondent. The Applicant bears the responsibility to prove that such a relationship exists and that he is entitled to payment. If I determine no employment relationship was established, I would lack jurisdiction, as the ELRC can only arbitrate disputes between an employer and an employee at the time the cause of action arose.
72. A statutory claim originates from legislation that grants the right to payment. The key point is that the claimant must initially be within the statutory relationship governed by the legislation, usually, employee or an employer. Was the individual an employee, and did the amount become payable to that employee under one of the provisions specified in clause 69.6?
73. What I had before me isn’t necessarily that. The Applicant brought a claim for payment for services rendered, which is conceptually different. If A asks B to perform a service and B does, without an employment contract, B might still claim payment. The claim might be brought in a different forum, relating to an independent contractor, a contract for work/services, an oral or implied agreement, or a quantum meruit/unjust-enrichment claim.
74. The evidence presented in arbitration before me from the Applicant is that he had a tacit employment contract, as the school principal allocated work to him, whilst they were awaiting the approval of the Annexure D form. He rendered services and is therefore entitled to payment.
75. The Respondent’s version is that the Applicant was not appointed by the Respondent and no valid employment contract came into existence between the Applicant and the Respondent. The Applicant volunteered his services, expecting the Respondent would approve Annexure D, which did not happen.
76. It is clear from the evidence presented that everyone expected Annexure D to be approved. The school principal even lent money to the Applicant, expecting that either Annexure D would be approved or a pool post would be approved, but disappointingly neither of these two options materialised.
77. The Applicant did not supply a valid employment contract for the relevant period nor rely on any other entitlement laws outlined in Clause 69 of the ELRC Constitution. Since he was not an employee at that time, the ELRC has no jurisdiction to resolve the dispute. I believe he was acting voluntarily, hoping the Respondent would eventually provide a new contract, but this did not happen. He might have a claim for payment of money for services rendered by him, but it will not be in this forum under Clause 69 of the ELRC Constitution.
78. The Applicant had therefore failed to discharge the onus to prove that he is entitled to payment of any statutory monies as set out in Clause 69.6 of the ELRC Constitution, as he was not an employee of the Respondent at the time.

Award

79. I find that the ELRC does not have jurisdiction to determine this dispute as the Applicant was unable to prove that an employment relationship came into existence between the parties for the period January to April 2026.
80. The ELRC is advised to close the file.

Signature:

Panelist: ANNELIE BEVAN