ARBITRATION
AWARD
Arbitrator: Firgil Philips
Case Number ELRC 83-24/25 FS
Date of award: 16 October 2024
In the dispute between:
In the matter between:
SADTU obo Gaalebalwe Mokgwamme Applicant
And
Department of Education Free State 1st Respondent
SGB Ventersburg Combined 2nd Respondent
Details of Hearing and Representation
1. This matter was scheduled for arbitration initially held on 07 June 2024, 16 July 2024 as well as 13 and 30 September 2024 respectively. It came before me by way of an alleged non-payment of salary. During the arbitration hearing was the Applicant represented by Mr Mbuyisile Frans from the trade union SADTU.
2. After having considered a material interest to this dispute I made a ruling to join the Second Respondent, The School Governing Body of Ventersburg Combined School which was represented by one Mr Kunene. The First Respondent was represented by Mr Solomon Moloi.
Issue to be Determined
3. The issue to be decided is whether the Applicant is due to be paid statutory monies in terms of hours worked as well as to determine who the actual employer was.
Background to the Issue in Dispute
4. The Applicant in this matter worked at Ventersburg Combined School. The trade union argued that the Applicant was employed by the Department of Education Free State and that they should pay her the outstanding monies due.
5. The Respondent agreed that the matter related to non-payment of salary. It held that the School Governing Body (SGB) was responsible for the payment but that they used their own formula. It was therefore requested by both First and Second Respondent that the Applicant be paid the money calculated by the SGB and on their own rate.
6. It was agreed that the Applicant commenced employment on 24 August 2023. The Applicant worked until 21 November 2023 at Post Level 1 salary scale earning R26554, 00 per month. She earned this amount for the months of August and November 2023 respectively. However, October’s payment was still due and in dispute as to what the amount was supposed to be.
7. What follows is a brief exposition of the facts which were tendered at arbitration. This matter was characterized by at least two postponements and held over several days. What is recorded here is not an exhaustive account of what was testified during the proceedings. I have considered all the evidence and argument relevant to the dispute and in totality delivered a finding as can be gleaned from my analysis below. I have therefore summarized that which I regard necessary to identify the issues for determination.
Survey of Evidence and Arguments
Applicant’s case
8. The Applicant Gaalebalwe Mokgwamme testified under oath: She stated that she worked at Ventersburg Combined School for a period of three months as a substitute teacher. On 09 October 2023 at approximately 13h00 the Principal Mr Mokhemisa sent her a WhatsApp message stating that she had to report for duty which she then did on 10 October 2023. She then sent him a whatsapp on 10 October 2024 asking if she must send her details. He stated that she should not as the district had her file. She also informed him that her contract had ended on 29 September 2023. The principal never told her that she would be employed by the GSB. On 20 October 2024 she then enquired about her salary and she was told by Mr Mokhemisa that it was with payroll and that she needed to exercise patience.
9. She asked the Principal to check the appointment letter and he asked her again to be patient. Mr Mokhemisa is the Principal and is therefore a representative of the Department. She has never met Mr Kunene from the SGB and has never had any dealings with him. There was also no written contract issued to her. When she received her salary on 23 November 2023 she enquired again about outstanding monies for the month of October 2023 and was told that the documents had been received and that she needed to wait and that her contract ended on 24 October 2023. She then informed them that she would take the matter to the Circuit Manager. No one from the SGB called her back about the outstanding monies. She was expecting the SGB to correct the department as the district officials advised her to go to the SGB for payment.
10. Under cross-examination the Applicant testified that she expected to find her two months’ salary for the time she worked. The SGB did not try and contact her as they did not even respond to her messages. The Principal told her that he submitted the records on time. She refused the payment from the Principal prior to the arbitration as she did not work for the SGB. Nobody contacted her until the matter was referred as a dispute. Under re-examination she stated that after a month towards the end of October 2023 she took the matter to the district. She did not sign an additional contract. She only signed one from August until September 2023. She did not receive any salary advice and she was told that her contract would run from 24 October until 20 November when it ended on 22 November 2023.
1ST Respondent’s Case
11. Mr AB Mokhemisa testified under oath: He stated that the Applicant was employed from August 2023 and interviewed by the SGB. The post became vacant in August 2023 after the submission of documents for grade 2. The SGB decided to advertise the post and selection. The post was advertised in August 2023 and all candidates who applied were interviewed. In that meeting they decided to recommend the Applicant. The first phase was from August until 29 September 2023. It was advertised only for one month. The submission and payment were done accordingly. His permanent teacher informed him that due to a health condition that she could not continue. He then asked her to submit the relevant documentation so that the new teacher (Applicant) could start. He was busy communicating with the Applicant telephonically and on WhatsApp. Due to the sick teacher, he then asked her to come back on 10 October 2023 to which she did.
12. They had to have a contingency plan in place and the Applicant provided that option since his permanent teacher was incapacitated. When he realised that she was not going to get her salary from the Department he took it upon himself to convene a meeting with the SGB. The SGB is entitled to employ an educator from any funded posts. The Applicant reported on 10 October until 24 November 2023 and they wanted to close the gap between the 10th and 31 October 2023. It was an urgent matter and it was in the interest of the learners that the Applicant be appointed. By implication Mogwamme was employed by the SGB. That is why he took the decision to appoint the Applicant as he did not want the leaners to be alone. The SGB used their own formula to determine salaries hence the difference in what they were supposed to offer.
13. Under cross-examination he stated that he was representing the SGB. The SGB is her employer and not the Department. If the SGB were to employ her he would not have taken the file to the department. Instead of R26000 they were willing to pay her R6500.00. It has never been brought to his attention by other teachers. When put to him that the district failed the Applicant, he stated that those were the words of Mr Frans. His role as principal is to look after the interest of staff.
2nd Respondent’s Case
14. Mr Kunene testified under oath: He stated that the Applicant was supposed to be at an interview for a post as a replacement teacher. The one teacher did not return after recess and the Principal asked the Applicant to continue in her place despite the contract having ended In September 2023. He also informed the SGB and they agreed to his plan to temporarily appoint the teacher. He also explained that the documents that was supposed to go to the district were received late. They then agreed to pay the salary between 10 and 20 October 2023 calculated at special tariffs. There are monies due which they were willing to pay but the Applicant was not happy with the amount that they proposed. They then decided not to pay pending the dispute. She is however entitled to get the money for between 10 and 20 October 2023. The Principal concerned is Mr Mokhemisa.
15. Under cross-examination Kunene stated that when the papers were sent late to the district the. The SGB then wanted to assist with the problem that existed at the time. The department employed her and was going to pay the Applicant. They were not the initial employers of the Applicant. Under re-examination he stated that the SGB was willing to pay the Applicant to resolve the impasse. The principal did come to the SGB and explained the situation. He was not sure how long the first contract was offered for. They were willing to pay the Applicant R6400, 00 and approached her to offer her the amount.
Closing arguments
16. In arriving at this decision I have extensively considered the closing arguments. All three parties are commended for having submitted them well within the times frames. For the sake of brevity and unnecessary repetition of evidence I am not going to record them here. They are however available on file for scrutiny for any subsequent proceedings, if any.
Analysis of Evidence and Argument
17. It is trite law that an employee who alleges that the employer’s failure to pay outstanding salaries bears the onus of proving the claim on the balance of probabilities. It is well established principle that employees do have a right to be paid their monies due especially in light of the fact that it was for services rendered. Clause 69.5 of the Education Labour Relations Council Constitution (ELRC) states that: Despite Clause 69.5 and 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, Personnel Administration Measures or any regulations or subordintate legislation promulgated by the Minister of Basic Education or MEC for the Province where an educator is employed as it relates to the condition of service , a collective agreement and a contract of employment.
18. Section 32 of the Basic Conditions of Employment Act 95 of 1997 states that: Payment of remuneration.—(1) An employer must pay to an employee any remuneration that is paid in
money— (a) in South African currency; (b) daily, weekly, fortnightly or monthly; and (c) in cash, by cheque or by direct deposit into an account designated by the employee. (2) Any remuneration paid in cash or by cheque must be given to each employee— (a) at the workplace or at a place agreed to by the employee; (b) during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours; and (c) in a sealed envelope which becomes the property of the employee.
(3) An employer must pay remuneration not later than seven days after— (a) the completion of the period for which the remuneration is payable; or (b) the termination of the contract of employment.
19. It is therefore glaringly obvious that the payment had to have been made as per the above provisions. It is common cause that the SGB was willing to pay the outstanding monies in the amount of R6500, 00 but it was rejected by the Applicant on two grounds. Firstly, that the SGB was not her employer and secondly that the quantum calculated was incorrect. Both these two submissions in my view holds considerable force. Here is why. The 1st Respondent assisted the 2nd Respondent in its case in the sense that they both agreed that the SGB should shoulder the responsibility. The SGB would have powers to appoint as was testified when a funded post would become available. This was not the case. Furthermore, the principal as accounting officer for the school automatically acts in the interest of the Department of Basic Education save for alternative arrangements made in conjunction with the SGB or expressly agreed otherwise. This was certainly not the case as it was not reduced to writing when the Applicant returned on 10 October 2023.
20. It was testified by the Principal Mr Mokhemisa that the SGB would pay the Applicant. Mokhemisa testified that when he learnt that the Department would not “foot the bill” he immediately made arrangements with the SGB. This suggests that there was never any intention for the SGB to act as employer or pay the Applicant. On his own version the paperwork was submitted to district office which was done late. Furthermore, Kunene on his own version testified that the Department for all intents and purposes was the employer. A view I fully align myself with. I understand that Mokhemisa was under pressure to appoint due to his permanent teacher having been medically incapacitated. On both his and the Applicant’s version it was requested whether she should supply documentation. His response was that the regional office was already in possession of it. There would be no other reason for her not to provide same if Mokhemisa was of the view that the Applicant would be appointed by the SGB.
21. Besides Mohkemisa called her and requested her to commence on 10 October 2023 after her contract had expired on 29 September 2023. One must have empathy with the First Respondent since learners’ routine could not be disrupted. A modest gesture in fulfilling his (Mokhemisa) mandate which came at a cost. A cost that was due to the Applicant. There is no evidence placed before me to suggest that the Department is not the employer, and that unquestionable evidence exists which could gainsay this position. I believe that First Respondent would act ultra vires on its own policies should this be the case. I merely looked at it from the vantage point that no contract of employment was issued (10 October – 20 November 2023 ) to the Applicant to confirm the identity of the employer. Now turning to remuneration.
22. Again, is it common cause that a payment for both September and November 2023 was received. The Applicant in this instance came back from recess after her contract expired on 29 September 2023. She immediately commenced on 10 October 203. This further suggests that when she left on 29 September 2023 that her contract of employment had in fact expired and when she was called back it could not automatically be revived unless the provisions of S198(B) of the Labour Relations Act 66 of 1995 as Amended were met. I therefore considered that the new contract of employment commenced on 10 October 2023 as opposed to the argument advanced by Frans that it was continual. I cannot create an employment relationship that did not exist between 29 September and 10 October 2023. Therefore, I agree with both the First and Second Respondent about the period in question.
23. There was however no evidence placed before me to compute how the Second Respondent arrived at R6500,00 based on their calculations. This after I sought this information on the record. It would therefore be impermissible in law to venture into conjecture about what the formula was. Both the First and Second Respondent failed in convincing me why I should award R6500,00. By the very same token I could not agree with the Applicant trade union for the reasons above why I should award the entire period. She was paid full in both September and November 2023. In the premise the following order is made. The First Respondent for the purpose of being the true employer is liable to pay the Applicant an amount equal to 10 days outstanding calculated at the rate she was paid for September and November 2023. R26500/4.33X10 days.
Award
24. The Applicant Gaalebalwe Mokgwamme was short paid for the period 10 – 20 October 2023.
25. The First Respondent Department of Education, Free State is hereby ordered to pay the Applicant an amount of R12 240, 10. (Twelve Thousand Two Hundred and Forty Rand and Ten cents).
26. The amount specified in paragraph 23 will become due on 31 October 2024.
27. Failure to comply with the order as set out above may attract interest at the Magistrate’s Scale.
Firgil Philips
ELRC Panellist