In the ARBITRATION between:

SADTU OBO NTOMBI FINCA APPLICANT

and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

Union/Applicant’s representative: Ms Sthembile Dlamini
SADTU
Pietermaritzburg

Telephone: 071 2786 390

Respondent’s representative: Mr S Daniso
228 Pietermaritzburg Street
Pietermaritzburg
Telephone: 064 501 286

DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 6 September 2024 and was finalized on 11 October 2024. The matter was heard on a virtual platform.

2. The Applicant, Ms Ntombi Finca was present and was represented SADTU offical, Ms Sthembile Dlamini, and the Respondent was represented by Mr Snethemba Daniso, of the Department of Education in Kwa Zulu Natal.

ISSUE TO BE DECIDED
3. The matter was referred as an unfair dismissal and only procedure was challenged.
4. The issues were narrowed down at arbitration and it was agreed that the only dispute was whether the Applicant was entitled to her salary, for the period she rendered her services, being 2 May 2023 to 21 August 2023.

BACKGROUND
5. The Applicant was employed with the Respondent as an Educator, Post level 1, at Kwamlamuli Primary School. Her salary was at Post level 1, applicable to grades 1 to 3. The Applicant earned R 390 303-00 per annum.

6. The Applicant was appointed on 2 May 2023. Her services were terminated on 18 August 2023, as per the withdrawal letter from the Department. The Applicant tendered her services from 2 May 2023 to 20 June 2023. She received the withdrawal of appointment letter on 21 August 2023.

7. The Applicant’s case was that she was employed as an Educator and she tendered her services for a period of seven weeks and was officially terminated on 21 August 2023, for which period she was entitled to the payment of her salary. It was common cause that her termination was not disputed and was based on valid grounds. It was also agreed the substantive elements of her dismissal was not challenged.

8. It was common cause that there was valid reason for termination of the Applicant’s contract. Both parties agreed that the reason for the withdrawal of her appointment and the procedure was not in dispute. Evidence was only led in respect of the Applicant’s salary for the period that she was employed. It was also not disputed that she tendered her services from 2 May 2023 to 20 June 2023. She claimed for payment of her salary from 2 May 2023 to 21 August 2023, being up until the date she received the withdrawal of appointment letter.

SURVEY OF EVIDENCE AND ARGUMENT
9. I do not intend to deal with every aspect of the evidence and or argument of each party but will only record the part of the evidence and argument that I deem necessary for purposes of this determination. There were no facts in dispute and the matter proceeded by way of written arguments.

Respondent’s case led by way of written arguments

10. It was submitted by Mr Daniso that the Applicant was physically at her work station for the period 2 May to 20 June 2023, and tendered her services. She was thus only entitled to remuneration for that period. A meeting was held on 21 June 2023 wherein the Human Resources officials, School Circuit Manager and the School Principal were present. In that meeting the Applicant complied with the resolution not to return to the school.

11. On 21 August 2023, the Applicant was furnished with the withdrawal of appointment letter which was issued to avoid ambiguity or adverse interpretation regarding her employment. It was therefore submitted that the Applicant was only entitled to payment for 2 May 2023 to 20 June 2023.

12. It was submitted that the appointment of the Applicant was irregular and the said appointment was withdrawn after the process of verification.

Applicant’s case led by way of written submissions

13. Ms Dlamini argued that it was common cause that the Applicant received the appointment letter and reported to the school on 2 May 2023. She rendered services from 2 May 2023 to 20 June 2023, when she was verbally informed not to return to work. No formal communication was exchanged until the withdrawal of appointment letter was received on 21 August 2023. The letter dated 21 August 2023, was a formal document that withdrew the appointment, and was the effective date of termination. The Applicant was thus entitled to remuneration from 2 May to 21 August 2023.

ANALYSIS OF EVIDENCE AND ARGUMENTS

14. The matter was referred by the Applicant as an unfair dismissal dispute. At arbitration the facts were common cause and the only issue for determination was whether the Applicant should be remunerated for the period she tendered her services or whether she was entitled to payment until the date she received the termination letter. I must set out that an arbitration is a new (de novo) hearing, which means that the evidence concerning the reason for the employer’s decision (in this instance her salary) is heard afresh. The arbitrator must consider the fairness of the employer’s decision on the evidence admitted and submissions made at the arbitration. As the arbitrator in the matter, I noted that most of the facts were common cause and the only issue before me was to determine whether the Applicant was entitled to the payment of her salary from 2 May 2023 to 21 June 2023, being the period that she tendered her services or 2 May 2023 to 21 August 2023, being up until the date she was formally notified of her termination.

15. There is no dispute that the Applicant received her appointment letter to be appointed as an Educator, Post level 1, at Kwamlamuli Primary School. Her salary was at Post level 1, applicable to grades 1 to 3. She tendered her services for seven weeks (2 May to 20 June 2023). She was officially terminated on 21 August 2023. I accept that there were no services rendered form 20 June 2023 to 21 August 2023, but that was due to the fact that a meeting was held on 21 June 2023, which addressed the irregularity of her appointment. The Applicant further agreed not to return to school.

16. It was further common case that the appointment was erroneously made which led to the withdrawal of same. This was however not due to any fault on the part of the Applicant. She was officially employed from 2 May to 21 August 2023, being the date she received her withdrawal of appointment letter and was thus entitled to payment of her salary for that period.
17. The fact that she only worked till 20 June 2023, was not by choice as there was a meeting held to address the irregularity. She remained at home until she received proper notification of the termination of her appointment. At this point I must note that labour disputes entail social justice. Various indicators and metrics must be considered in measuring social justice in labour law, including wage and salary equality, workplace discrimination, employment rights and protections, collective bargaining, employee satisfaction and well-being, income inequality, access to training and promotion opportunities. Section 1 of the Labour Relations Act 66 of 1995 (‘the LRA’) declares its goal to promote social justice. The stipulated goals of the LRA are indicative of the legislative intention to go further than merely stipulating rights which must be claimed, and enforced.

18. In assessing the matter, I find that the Applicant was entitled to the payment of her salary from 2 May 2023 till 21 August 2023, being the until the date of withdrawal of appointment. The latter being the effective and formal date of termination. She earned R 390 303-00 per annum. Her salary per month amounted to R 32 525-25. The total due to the Applicant was payment for 3 months and three weeks’ salary which amounted to R 32 525-25 x 3 + R 22 519-20 = R 120 094-95 (subject to tax).

AWARD

19. The Respondent is to pay the Applicant the sum of R 120 094 -95 (subject to tax) for the period 2 May to 21 August 2023, being the period that the Applicant was formally appointed.

20. The Respondent is to pay the above amount by no later than 15 November 2024.

ELRC Commissioner: VEESLA SONI Date : 14 OCTOBER 2024