IN THE ELRC ARBITRATION
BETWEEN:

Ms. EM MOAGI “the Applicant”

and

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”

ARBITRATION AWARD

Case Number: PSES109 – 15/16GP

Last date of arbitration: 7 April 2016

Closing arguments received: 20 April 2016

Date of award: 18 May 2016 (extension granted)

COEN HAVENGA
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1 DETAILS OF HEARING AND REPRESENTATION

The last day of the hearing of the arbitration took place on 7 April 2016 at the offices of the Gauteng Department of Education in Wonderboom. The last of the written closing arguments were received on 20 April 2016, and will form part of the record. The Applicant is Ms. EM Moagi, represented by Mr. M Aphane, an advocate. The Respondent is the Gauteng Department of Education, represented by Mr. P Matli.

2 TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration takes place in terms of the referral of the alleged unfair dismissal dispute by the Applicant.

The Respondent disputes that the Applicant was dismissed. It is the Respondent’s case that the Applicant was employed on a temporary contract. The issue in dispute is thus whether the termination of the Applicant’s employment falls within the definition of dismissal as defined in section 186 of the Labour Relations Act, no. 66 of 1995.

The parties also agreed on the following:
a) To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
b) Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
c) To empower the arbitrator to award an appropriate remedy.

The parties tabled documents contained in bundle A, B and C.

3 PRELIMINARY ISSUES

During his opening statement the Applicant’s representative stated that the dispute only concerns the alleged temporary appointment of the Applicant as reflected in pages 2, 3 and 3.1 of Bundle A. A2 is placed in dispute by the Applicant, and her case is that her signature on that temporary appointment for the period 9 February 2015 to 28 February 2015 was forged and fraudulently entered on the document by somebody employed by the Respondent.

As this was the primary issue in dispute, the Respondent’s representative requested opportunity to submit the disputed signature to analysis by a hand writing expert. However, his seniors refused his request, where after the Applicant’s representative requested opportunity to submit it to their own hand writing expert for analysis. After another postponement for this purpose, the Applicant indicated that she was no longer going to submit the signature for expert analysis due to the costs of such analysis. The Applicant however still disputed that it was her signature appearing on the notice of temporary appointed as reflected in A2.

The Applicant was employed at Abel Motshoane Secondary School (hereinafter referred to as “the school”) as a post level 1 educator on 9 February 2015, at a salary of R125 706 per annum. The Applicant submits that the appointment was for a period of 12 months, while the Respondent submits it was for a period of one month, i.e. until 28 February 2015. The Applicant alleges that she had been unfairly dismissed on 27 February 2015, while the Respondent submits that her temporary contract came to a natural end in terms of the provisions thereof, and that she had not been dismissed. The Applicant seeks retrospective reinstatement and compensation as remedy for her alleged unfair dismissal.

4 SUMMARY OF EVIDENCE

The proceedings have been recorded digitally, and a summary of the Applicant’s and Respondent’s witnesses’ evidence follows below.

Applicant’s case

Eunice Moagi, the Applicant, testified under oath that she was employed as an educator at the school on 9 February 2015, to teach Tourism and Geography. A1 is the post establishment for the school. She was required to complete a form, given to her by the principal, Mr. Montsho (“Montsho”). She does not know A2. The principal only gave her a banking form, not the form reflected in A2. She saw A2 when she visited Mr. Matli (“Matli”). She then testified that she in fact did complete the personal information section of A2, and that she therefore does have knowledge of A2. The principal asked her to complete the personal information section. None of the other sections were completed. She did not complete the qualifications section. She did not write that she had a B Ed degree and standard 10. She did not sign A2. Montsho was present when she filled in her personal information. She was supposed to be employed for 12 months, from 9 February 2015. Montsho told her that it would be for 12 months starting on 9 February 2015. On A2 the period of appointment reflects “12/31” on top of the block, and then “2015/02/28” is written beneath it. There period section was not completed when she completed the personal information section. Montsho took the form from her after she completed the personal information section, and the rest was blank. The “current incumbent” section in A2 is blank. She started teaching the learners in February 2015, and before that nobody taught them. Montsho told her that the educator resigned and there was nobody to teach them. The “reason for vacancy” is also not completed on A2. A20 is MT Moshira’a form, they were employed on the same day. On top of A20 the words “one month” appears, while it does not appear on A2. On A20 the current incumbent section is also completed, as well as the reason for the vacancy. The Applicant was one of the 11 new teachers that was welcomed by the ISDO. Two days later Montsho came to her class and told her that the district had informed him that her contract is being terminated. He did not give her any letter to that effect. She went to the district and found out about another position at another school where she then was employed at Refalutse School for March 2015. When she went to the district to check for her persal number, and they told her she was still working at the school (Motshoane) according to the system. She spoke to a lady by the name of Sally who is head of HR, who told her she was not supposed to get that information. The Applicant went to see Matli in the Labour Relations department. Matli phoned Montsho to ask for her appointment letter, but he did not have it. When it came later it was dated 3 April, as reflected in A3. She wrote “received 07/05/2015” at the bottom. The date on A3 is “4/3/2015”. She was at the district offices with Matli on 2 April. From the way the effective date is written, i.e. “2/9/2015 to 2/28/2015” she accepts that the date at the bottom must be read to mean 3 April 2015. On A3 the persal block is empty, but it is filled in on A3.1. A3 and A3.1 contain a clause that states that the appointment may be extended. Montsho did not provide her with a reason for the termination. She found out that a new educator had been employed. The Applicant was available to continue with her duties. The appointment letter also stated that one month’s notice must be given. She was informed of the termination on 27 February 2015, and did not receive a month’s notice. She was still paid under the school’s name while she worked at the new position. She received R6888 for February 2015, R10 475-50 for March 2015, and R10 475-50 plus R1467-70 bonus for April 2015. The Applicant wants to be reinstated and be compensated for the year. A33 was received by post, stating that she had been overpaid to the amount of R19 195-22. It also states that she resigned, which she did not do. Montsho told her that her contract would be for 12 months where after she would have been appointed permanently. During cross – examination she testified that Montsho called her in. He did not know her from before. At Refalutse School she also completed a form, which she signed. She denies that she signed A2. He forged the signature because the district wanted the form and he did not have it. She did complete the personal information section. She did not have a persal number when she started at the school as it was a new appointment. The date of 4/3/2015 is 3 April 2015 according to her, and not 4 March 2015. She was not overpaid as she worked at Refalutse School during March and April 2015. She had not yet completed her studies at the time, as she had two modules left.

Mildred Moshira (“Moshira”) testified under oath that she met the Applicant at the school after the principal called her. The principal told them the government posts run for 3 months, where after it is advertised again. He said renewal is possible if they performed well. A20 is her form. The principal completed the form except for the personal information section. The form was blank when she completed that section. She was supposed to work for 3 months, and he said after that it would be renewed for 3 months. She worked until 27 February 2015. The principal told her the termination was a result of educators being transferred to the school. The words “one month” written on top of A20 was not there when she completed it. She did not receive an appointment letter. During cross-examination she testified that she signed her form. The principal told them that the DOE works with 3 month contracts that can be renewed. She received a salary for two months after she left the school. The principal called her to go and sign a letter to stop the salary. She did not receive an overpayment letter. HR said they were paid because they were supposed to have worked for three months. She was supposed to have worked for three months. The Applicant was present when the principal told them they would be employed for three months. He did not say they would be employed for 12 months. She completed the qualifications section as well, because the principal told her to do so. She signed the form because the principal told her to sign.

Respondent’s case

John Montsho (“Montsho”) testified under oath that he is the principal at Abel Motshoane Secondary School. He knows the Applicant from the time she worked at the school in 2015. He has no personal grudges against her. He did not know her before she was employed at the school. A2 is example of a GDE form that has to be completed by prospective educators, like an application form. A2 was completed by the Applicant with his assistance. Two teachers were transferred from North West to the school in a process which started in November 2014. Two teachers left, and he enquired from head office when the transfer would be finalized. He was informed that it was in the process, and could take about three months. He was then authorized to employ two teachers for a minimum of one month, pending the finalization of the transfer of the two teachers from North West. He received the names of the Applicant and Moshira from the district office. He contacted them and told them over the phone it would be for a period of one month pending the transfer. They then came in to the school. Towards the end of February 2015 he told them he would enquire from the district office how far the transfer process was, to decide whether their contracts would terminate, or whether it would be extended for another month. The following day HR instructed him to terminate the contracts as per agreement to make way for the transferred teachers. He informed the Applicant and Moshira accordingly. The personal information section of A2 was completed by the Applicant, as well as the qualifications section. The Applicant signed it and he personally observed her signing it in his office, with Moshira. In March 2015 the transferred teachers then reported for duty. He later realized he forgot to have them complete the termination form, but could not get them to come and do it. He then completed it on their behalf in order to stop the payment of salaries. Two teacher that taught Geography resigned at the end of January 2015. A3 is the appointment letter issued by the district office. He would fill in a request form, stating the need and reasons for teachers, and submit it to the district. He attached the termination letters of the two teachers who resigned in January 2015. They then authorized the employment. The Applicant and Moshira filled in the forms, signed it and it was sent to the district to be authorized. The district office then issues appointment letters. It is a slow process and might take months to be issued. The date on A3 id 4 March 2015. On the date of termination, he reminded the Applicant about the transfer that was pending, which he informed her of the day before, over the phone initially as well as when she filled in A2. On 27 February 2015 he told her the transfer had been finalized and that those teachers would start on the Monday. He never forged her signature and would have no reason to do so. The minimum requirement for permanent employment is REQV13, i.e. matric plus three years. The Applicant wrote that she had B Ed degree. During cross-examination he testified that 5 teachers resigned in January 2015, and 2 In December 2014. Mahlangu taught Geography. The proof of the transfer is available. He cannot remember whether they were together when they signed the forms, but they came in together. He asked them to complete the personal information section and then assisted with the rest. He cannot say why the reason for the vacancy was not competed. It was as a result of resignation. There was an incumbent. He has no knowledge of the change of the dates on A2. He wrote 2015/02/28. He did not tell the Applicant that she would be employed for 12 months, as there were transferred teachers on their way. They were just waiting for the process to be completed. He does not have the authority to employ for more than 3 months. The transfer process started in November 2014 and they hoped it would have been completed by January 2015. He initialed the alteration of the date on A20. The appointment letters came long after the appointments. If He did not tell the Applicant that she was employed for 12 months, to be extended. He told her it was for one month, and explained the issue of the transfer. If the transfer had not been effected by the end of February 2015, she would have filled in another form like A2. The agreement was for one month.

5 SUMMARY OF ARGUMENT

Both parties submitted extensive written closing arguments which form part of the record and will not be repeated here. I have studied and considered all the arguments as well as the legal principles referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing.
6 ANALYSIS OF EVIDENCE AND ARGUMENT

The Applicant has alleged that she had been unfairly dismissed. Section 192 of the Labour Relations Act, no. 66 of 1995 (the Act) deals with the onus in dismissal disputes and places the onus on the employee to prove the existence of the dismissal. Once the existence of the dismissal is established, the onus shifts it to the employer to show the dismissal was fair, both substantively and procedurally. The Respondent claims that the Applicant was employed on a temporary contract basis, that her contract expired and that there was no dismissal. The existence of a dismissal is therefore placed in dispute by the Respondent.

Section 186 of the Act defines “dismissal” in the following manner:
“Dismissal” means that –
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she –
(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to reemploy another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”.

I have to decide on a balance of probabilities whether the termination of the Applicant’s employment relationship falls within the ambit of the definition above, and whether she was dismissed by the Respondent.

The Respondent relies on temporary appointment form reflected in page 2 of Bundle A, signed by the Applicant, as proof of the Applicant’s appointment for that period alone, i.e. 9 to 28 February 2015. The Respondent disputes that she signed that document, and alleges that her signature was forged and fraudulently entered on the document by somebody employed by the Respondent. The validity of that temporary appointment form, including the signature purporting to be that of the Applicant, and whether the temporary employment agreement was for a period of one month only, are therefore the primary issues in dispute. It is notable that despite the importance of aspect of the signature, and despite been given the opportunity, neither party subjected the signature to expert handwriting analysis. I therefore do not have the benefit of an expert’s analysis, and consequently I have to decide the issue on the available evidence on a balance of probabilities. It is important in this regard to remember that the Applicant carries the onus of proving the existence of a dismissal, and in this matter it would specifically include proving on a balance of probabilities that the signature appearing on the temporary appointment form is a forgery, and proving that the Respondent employed her for 12 months and not only for one month.

It is not in dispute that the Applicant was employed on a temporary basis. There are two conflicting versions before me in respect of what was agreed between the Applicant and Montsho, the principal, in respect of the period of the temporary employment, and whether any promises of extending the 12-month period to permanent employment had been made by Montsho. Where there are two conflicting versions of the facts the arbitrator should weigh up each version taking into account all relevant factors. I have to consider the evidence of the witnesses to determine which version is more probable in the circumstances, and should be accepted as a true reflection of the events that preceded the termination of the employment relationship between the Respondent and the Applicant.

It must be said that the administration of the Respondent in respect of completion of forms and issuing of appointment letters leaves much to be desired. However, the crux of this matter is not affected by the late issuing of appointment letters, as the initial agreement between the Applicant and the principal, Montsho, is the determining factor in deciding whether the Applicant had been employed for the period of 9 to 28 February 2015, or for a 12-month period as argued by the Applicant. I find that the probabilities favour the version of the Respondent. The initial period entered on A2 is 9 February to 28 February 2015. It was scratched out and 31/12 was written above it. That period was again changed to 28 February 2015. I find it improbable that the initial period would have been until 28 February 2015 if Montsho promised a 12-month period. In such case one would have expected the original period to have been entered to end 31/12. However, the periods entered and amended on A2 could not have created any sort of expectation with the Applicant, as according to her it was not filled in when she competed the personal information section. There are several material contradictions in the evidence of the Applicant and her witness Moshira as well. The Applicant initially denied knowledge of A2, but later changed her evidence to state that she indeed completed part of A2. Moshira testified that Montsho told them they would be employed for 3 months, which contradicts the Applicant’s evidence that he told her it would be for 12 months. This in itself is a crucial and material discrepancy in that it relates specifically to the period that was mentioned or not. In the light of the contradiction I find the version of Montsho, that he told them it was to be for one month initially, more probable. This probability is also supported by the fact that he waited for a transfer of two teachers, the process of which was expected to be finalized within three months of the start of that process in November 2014. I find it improbable that he would offer 12 months’ employment in those circumstances. Montsho’s evidence that he is only authorized to employ to a maximum of three months, was not specifically disputed by the Applicant, which makes it also improbable that he would have offered 12 month’s employment. The Applicant also testified that the 12 months would have run until 9 February 2016, which is improbable, considering the terms of the education department. The Applicant testified that she did sign a similar form at Refalutse School, which raises the question why she would then not have signed A2. Although no expert evidence was presented, I find in the light of the probabilities that the Applicant probably did sign A2, as testified by Montsho. I find no substance in the reason she provided why Montsho would have anything to gain by forging her signature. I can find no probable motive for Montsho to fabricate evidence and lie at the arbitration hearing. The Applicant did not provide any probable evidence that would support such notion.

I find on a balance of probabilities that the Applicant was employed on a temporary basis for the period 9 to 28 February 2015 only, which employment relationship came to a natural end in terms of the provisions of that agreement. There is no evidence upon which I can find on a balance of probabilities that the Respondent created a reasonable expectation with the Applicant that she would be permanently employed as well.

The onus of proving the existence of a dismissal lies with the Applicant, and she did not discharge that onus. I find that the Applicant did not prove on a balance of probabilities that she was dismissed as defined in section 186(1)(a) of the Act. She is not entitled to relief.
7 AWARD
1. The application is dismissed.
2. No order is made as to costs.

C0EN HAVENGA