Arbitrator: Macjon Maarman
Case number: ELRC314-24/ 25 FS
Date of Award: 14 September 2024
Jaco Engelbrecht Applicant
and
Department of Education, Free State Respondent
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration under ELRC314-24/ 25 FS took place virtually on 06 September 2024. The applicant, Mr. Jaco Engelbrecht, was present and represented by Ms. Elsie Louw, an attorney from Lovius Block Incorporated (attorneys).
2. The respondent, Department of Education Free State, was present and represented by Mr. Solomon Moloi, it’s labour relations officer.
3. The proceedings were manually and digitally recorded. Parties submitted bundles of documents which was accepted for what it purported to be. Parties submitted closing arguments on the agreed date.
ISSUE TO BE DECIDED
4. I am required to determine whether the contract of the applicant was terminated with or without notice and whether the non-renewal of the contracts amounted to a dismissal as defined in section 186(1) (b) of the LRA and if so, whether the applicant’s dismissal was procedurally fair. The applicant seeks compensation.
SURVEY OF EVIDENCE AND ARGUMENT
5. This award does not contain everything that was said in the arbitration or in the arguments of the parties. It only records the evidence and arguments material to the subject matter and the finalization of the dispute. This is in line with section 18.6.1 of the ELRC constitution as well as section 138 (7) of the LRA.
The respondent’s case
6. Mr. Percy Hendricks (herein after “Mr. Hendricks”) testified for the respondent. He said that he is the Assistant Director: Recruitment and Selection for the Xhariep District. He said that the applicant has been given continuous 6 months contracts and that the applicant earned a monthly salary of R29 988, 75.
7. Mr. Hendricks continued to testify and said that the respondent was made aware that some educators (6) did not have SACE (South African Council of Educators) certificates. The applicant was one of those educators and his contract was extended for six months from December 2023 to give him a chance to get his SACE certificate. That contract was to run from 01 January 2024 until 31 June 2024. The fixed term contracts of educators who were on fixed term contracts, like the applicant, would ordinarily not be renewed after December 2023.
8. Mr. Hendricks further said that the educators were informed of this requirement through the circuit managers and the principals and that only a permanent SACE certificate is accepted by the respondent.
9. Under cross – examination Mr. Hendricks said that he had a meeting “sometime” with the applicant before his termination to tell the applicant about the need to submit his SACE certificate. That was sometime in June/ July 2024 and he does not know if indeed the principal told the applicant about the need for him to submit the SACE certificate.
10. Mr. Hendricks further said that the applicable circular is “Human Resource Administrative Circular 8 of 2023” which was signed by the Head of Department on 6 November 2023.
11. Mr. Hendricks said that he does not consider the applicant to be dismissed nor terminated but that his contract ended. Mr. Hendricks lastly said that if he could receive the applicant’s SACE certificate today then he would offer the applicant a position at the school.
12. The respondent in their closing arguments said that the Department [of Education] only terminated the applicant’s employment contract on 20 June 2024 but in that instance there was a communication breakdown of some kind with the line functions of the Department which led to the applicant not receiving the notice thereof.
The applicant’s case
13. Mr. Jaco Engelbrecht (herein after “the applicant”) testified in aid of his own case. He said that he started working for the respondent in May 2015 on a 6 months’ contract basis and has not been receiving fixed term contracts since the last stint .
14. The applicant continued to testify and said that he thought that he would be working permanently since he did not receive the fixed – term contracts. He was seen by the principal of the school to be an “extra” to the establishment and the circuit manager told him that he is “underqualified”, since he does not have a diploma but only a Bachelor of Science Degree.
15. The applicant further said that on 16 May 2024 Mr. Sussman told him that everyone who does not have a SACE certificate will be cancelled and at the end of June 2024 he went to the South African Police Services for a police clearance. He furthermore contacted a College who accepted him to complete a diploma but on 09 July 2024 Mr. Hendricks told him that his contract will be stopped. The applicant conceded that at the time of his “termination” he did not have a valid SACE certificate.
16. Under cross- examination the applicant said that he has never seen his termination of service document by the respondent [only saw it in this arbitration]. He further said that he knows about the SACE registration requirements since he began teaching but that the respondent could have contacted the educators/ him directly to query the SACE registration.
17. The applicant lastly said that he has never received the Circular which the respondent relies upon but on 16 May 2024 he was told that they [non-SACE certificate holders] would be “deleted”.
18. The applicant in his closing arguments said that the last time that he received a contract was for the period between July to December 2022 and that on 16 May 2024 he was informed that he must apply for his SACE certificate where after he went to apply for it but was dismissed on 09 July 2024. The applicant lastly said that the applicant was never given notice by the respondent.
ANALYIS OF ARGUMENT:
Section 188 (1) of the Act sets out that: “A dismissal … is unfair if the employer fails to prove-
(a) that the reason for dismissal is a fair reason-
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.”
19. In this particular case the termination of the applicant was not in dispute. The applicant was terminated/ dismissed on 09 July 2024.
20. Section 185(a) of the LRA states that every employee has a right not to be unfairly dismissed. It is trite law that the dismissal of an employee must be effected following a fair process (procedurally fair) and for a valid reason (substantively fair). The onus to prove the fairness of dismissal rests with the employer. Only procedural fairness was in dispute in this matter.
21. Section 37 of the BCEA holds that “…a contract of employment is terminable at the instance of the party to the contract…(c) four weeks if the employee has been employed for one year or more”.
22. In this case the applicant was employed for longer than 12 months. One months’ notice is required prior to the termination of a fixed term contract or the employment relationship. The respondent did not supply this arbitration with the employment contract of the applicant for the “last 6 months’ stint” that entails an automatic ending clause.
23. The respondent furthermore did not lead any oral evidence to the effect that someone told the applicant on or before 09 June 2024 (one month before 09 July 2024) that his employment will end as a result of him not having the SACE certificate.
24. The applicant was indeed dismissed and the contract terminated without notice and I find that the termination/ dismissal of the applicant was procedurally unfair.
25. In this case I have found the dismissal/ termination of the applicant to be procedurally unfair. The applicant sought compensation. There was a gross deviation from the basic requirements of the BCEA and I am of the opinion that one months’ compensation is suitable compensation in this case, that amount being R29 988, 75. The aforementioned amount is not to punish the respondent, nor to reward the applicant but to remedy the procedural defect in the termination of the applicant.
AWARD
26. The termination/ dismissal of the applicant, Mr. Jaco Engelbrecht, by the respondent, Department of Education, Free State, was procedurally unfair.
27. The respondent, Department of Education, Free State, must pay the applicant, Mr. Jaco Engelbrecht, R29 988, 75 (Twenty nine thousand rands nine hundred and eighty eight rand and seventy five cents) by 15 October 2024.
Panelist: Macjon Maarman
ELRC314-24/25 FS