ARBITRATION AWARD

Date of Award: 12 JULY 2024

In the ARBITRATION between:

Pusetso Sekotlo
(Union / Applicant)
and

Education Department of Free State
(Respondent)

Union/Applicant’s representative: In Person.
Union/Applicant’s address:
Telephone:
Mobile:
Telefax:

Respondent’s representative: Mr. Thulo Tsunke
Respondent’s address: .

Telephone:
Facsimile:
Email:

DETAILS OF HEARING AND REPRESENTATION:

1. The arbitration of the alleged unfair dismissal dispute between Pusetso Sekotlo (Applicant) and the Education Department of Free State (Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), at Education Department District Office in Bethlehem on 27 and 28 June 2024.

2. The applicant was self-represented while the respondent was represented by Mr. Thulo Tsunke, an employee of the respondent.

3. The proceedings were conducted in English and were manually and digitally recorded.

PRELIMINARY ISSUES
4. The respondent representative raised a point in limine stating that the applicant was not employed by the department and therefore there was no employer employee relationship and the council lacked jurisdiction.

5. The applicant cited promises from the departmental management that he was appointed by the department. He cited a number of people including officials of the department who would testify that he was appointed in a departmental post and therefore by the department.

6. After listening to both parties I decided to proceed and hear evidence. I also informed the parties that my ruling shall be part of the award after hearing the evidence, as I hereby do at the end of this award.

ISSUES TO BE DECIDED
7. I am required to determine whether the respondent committed unfair dismissal as alleged by the applicant. If so to determine the appropriate remedy.

8. Relief sought was compensation.

BACKGROUND TO THE DISPUTE
9. The applicant stated that he started working for the respondent from 01 September 2022.

10. He held the position of teacher Post level 1 at a salary notch of R292 000.00 p.a.

11. The applicant was dismissed on 10 October 2022.

SURVEY OF EVIDENCE AND SUBMISSIONS:
Applicant party submissions:
The applicant, Pusetso Anthony Sekotlo testified under oath and stated the following:
12. The principal of Frede Public Primary School invited the witness to interviews for a post for Mathematics teacher. She told him that it was a departmental post.

13. On 19 August 2022, the principal called the applicant and told him that he was successful. He was also asked to start working as of 01 September 2022. He asked for one month to serve notice and he was told that learners had no mathematics teacher. A Mr Zimu from department district office told the applicant that he would get letter of appointment after 01 September 2022.

14. On 01 September 2022 he started working at the school. He kept requesting for an appointment letter and he was told that the Director’s approval was awaited. On 30 September 2022 he asked the principal for the letter of appointment and she promised to get it from Mr Zimu.

15. On 09 October, the principal sent him a document from the District office which stated that they cannot hire a new teacher. She told him that she was going to enquire because they needed him. She further told him not to come to school.

16. He worked from 1st to the 30th September 2022. In October/November the SGB decided to thank him with R2 500.00 .The principal said to him that the amount was what the SGB paid teachers employed by them.

17. Under cross examination he stated that he was now working at Mautse Primary School. Mr Zimu got him appointed there. He also confirmed that he got a contract of employment.

18. He confirmed that he did not have a contract while at Vrede Public Primary School. He further stated that while at Vrede Public Primary School, he was told that his contract was awaiting the Director’s signature. He never received a contract at Vrede Public Primary School.

19. When asked how could he claim to have been employed by the department while he did not have a contract of employment with the department and he replied that he was told to resign and come to work at Vrede Public Primary School.

20. Again, he was asked why was the letter of appointment so important that he kept asking for it and he answered that he had been promised a number of jobs in the past which were miraculously dismissed.

21. The witness denied being informed that he was employed in an SGB post until the District approved his appointment.

22. When told that he was paid a stipend by the SGB for the period he worked he answered that he only knew of it when he was told that they are thanking him.

The second witness, Tota Elizabeth Moloi testified under oath and stated the following:
23. She knew the applicant from the interviews as she was one of the panellists. She occupied the post of HOD at Vrede Public Primary School.

24. The interviews were held in August 2022 and the incumbent was to start working from 01 September 2022. The post was for replacing a teacher who was dismissed and the principal said that she had a mandate to advertise it.

25. The employment was ordered by the department and the principal was working with Ms Zim at District office.

26. The post was permanent and it was a replacement of a teacher who had been dismissed.

27. Under cross examination she agreed that department do not hold interviews for Post Level 1 appointments. When asked why in this case she replied that she did not know.

28. On a version that the post belonged to the SGB, she denied and stated that it was a replacement of a teacher who was permanent, a certain Mr Mokgaudi.

29. When asked who was there between the applicant and Mr Mokgaudi, she replied that there was a white teacher employed by the SGB.
Respondents party submissions:
The first witness, Dinono Martha Saohatse testified under oath and stated the following:

30. She stated that she was the Principal of Vrede Public Primary School. The post in question was a Post Level I for mathematics teacher. It was an SGB post previously held by Mr Wessels who did not have mathematics and a teacher was needed who had mathematics.

31. She obtained three names of mathematics teachers from the database at District Office and only two attended the interviews of whom one of them was the applicant.

32. When asked whether she did pay the applicant she replied that she paid him R2500.00 in accordance with the school policy.

33. Reference was made to assumption of duty form in the bundle of documents, and she stated that such form was used only when the appointment was by the Department.

34. She confirmed that the post was an SGB post which was previously held by Mr Wessels and who was also paid by the SGB.

35. Under cross examination she explained the post as a post level 1 teacher for mathematics, the one funded by the SGB and previously held by Mr Wessels.

36. She confirmed that she asked the applicant to start immediately as the learners were without a mathematics teacher. The witness further confirmed that the applicant did ask for appointment letter on two occasions and he was told that it was not issued immediately.

37. The witness denied informing the applicant that his documents were with Ms Mokoena. She acknowledged saying that the post may in future become permanent.

38. Again the witness confirmed that the post ended when the school received a letter of school provisioning of which she sent a copy to the applicant. She did this because she initially alluded to the possibility of the post becoming permanent in the future.

39. The termination was due to the school having excess staff and the applicant was paid in accordance with the school policy for the month he worked.
The second witness, Zweli Banzi Zimu testified under oath and stated the following:

40. He occupied the position of HR Officer in provisioning side. He did not know the applicant in person but acknowledged that he did communicate with him a number of times.

41. In 2022 he was asked for a list of mathematics teachers and he gave the contact numbers to Vrede Public Primary School, and told the three teachers that the school was going to contact them.

42. He understood the post to be a temporary post to replace the white teacher who had left the school. It was going to be funded by the SGB.

43. The second time he spoke to the applicant was when he informed him that the post was no longer available at the school.

44. He confirmed that he occupied a post at salary level 5 and did not have authority to appoint. According to him only the Director had authority to appoint.

45. The witness received many WhatsApp messages from the applicant some of which he replied and others not.

46. Under cross examination he confirmed having called the applicant regarding the interviews. He also confirmed receiving messages regarding appointment letter.

47. The witness denied receiving any document regarding salary of the applicant. He further denied promising to investigate anything for the applicant. He again denied stating that the applicant’s file was with Ms Mokoena.

48. The witness denied assuring the applicant that the post was a departmental post. He again denied stating that the applicant was waiting for the Director to sign. He said he never had a file relating to the applicant.

49. Under re-examination he denied seeing any documents from the school relating to the appointment of the applicant.

50. He called the applicant to say the school had no post because the principal thought that it was still available.

ANALYSIS OF EVIDENCE AND ARGUMENTS:
51. The dispute was referred as unfair dismissal in terms of section 191(1) [191(5) (a) (iii) of the Labour Relations Act 66 of 1995 as amended. According to the LRA the dispute referred need to be arbitrated and the matter was therefore set down for arbitration.

52. I am required to determine whether there was a dismissal and whether the dismissal was substantively fair. Procedure was not in dispute. This is in line with Schedule 8 Items 4 and 7 of the Code of Good Practice: Dismissals.

53. Section 188(2) of the LRA states that any person considering whether or not the reason for dismissal is a fair reason or whether or not a dismissal was effected in accordance with a fair procedure, must take into account any relevant code of good practice issued in terms of the LRA.

54. Again section 192 (1) of LRA provides that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Subsection (2) of the same section provides that if the existence of dismissal is established, the employer must prove that the dismissal is fair.

55. In the current case, there was a dispute about the existence of dismissal. The onus was therefore on the applicant to prove that he was indeed dismissed by the respondent before the respondent can be called upon to prove on a balance of probabilities that the dismissal was for a fair reason.

56. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.

57. The applicant presented his version assisted by one witness. His version was that he was appointed for a departmental post based at the school and he was informed as such. He worked for a month and he was stopped. According to him, he was not paid and it was only when he complained that the school thanked him with R2500.00. According to the applicant, he was dismissed and that was unfair. The witness, Tota Elizabeth Moloi also stated that the post was a departmental post ordered by the department. The applicant needed compensation for the alleged dismissal.

58. The respondent also had two witnesses to present their case. According to their version was that the applicant was indeed appointed in a post level 1 post at the school. The post was a replacement of a Mr Wessels who did not have mathematics and had left. They denied any promises to the applicant that the post was a departmental post. They did however agree that the intention was that in future the applicant be employed permanently. When it became clear that the school had excess staff they stopped the applicant from teaching. He occupied an SGB post and he was remunerated with R2500.00 in line with the school policy. Both the school principal and a Mr Zimu who were alleged to have made promises to the applicant denied ever promising him permanent appointment.

59. In public schools, there are two categories of educators, those employed in departmental positions and those employed in SGB positions. Educators employed in departmental positions are appointed by the provincial Head of Department. In the case at hand, the applicant did not produce anything that links him with the department. All he provided were promises which were denied by those alleged to have made the promises. While it remains undisputed that the applicant was persuaded to assume duty immediately in the interest of the learners who had no mathematics teacher, starting work without any appointment letter was a serious omission and risky on the part of the applicant.

60. The applicant confirmed that he was currently employed by the respondent in a permanent post. In other words, he is not unemployed and he earns a living within the department.

61. Given the above, I am not persuaded to believe that there was any employment relationship between the respondent and the applicant during the period under consideration. The fact that the applicant was remunerated by the SGB and he accepted the remuneration strengthen the view that he was indeed employed by the SGB. Apparently there were intentions to have the applicant employed permanently at the school.
62. Based on the above facts and all other evidence considered, I conclude with the following award:
Award:
63. The applicant failed to prove the existence of a dismissal.
64. The case is dismissed as the council has no jurisdiction to deal with the employment by the SGB’s.

Ntate Mabilo
ELRC Dispute Resolution Panellist