19 August 2021 – ELRC879-19/20EC

In the matter between

SAOU obo Ammi Postma Applicant

and

Eastern Cape Department of Education Respondent

Appearances: For the applicant: Ms Venita van Wyk (SAOU);
For the respondent: Mr Asaduma Buyana

Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 14 June 2021; 15 July 2021; 28 July 2021
Delivered: 16 August 2021
Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A; Basic
Conditions of Employment Act 75 of 1997, as amended, section 32;
ELRC Rules, clauses 7.2.2 and 69. BCEA enforcement claim for owed salary

DETAILS OF HEARING AND REPRESENTATION
1. . This matter was scheduled in terms of sections 33 and 33A of the Labour Relations Act 66 of 1995, as amended (LRA) read with clauses 7.2.2 and 69 of the ELRC Rule This arbitration was held in Aliwal North at Department of Education Joe Gqabi District Office on 14 June 2021. It was then held virtually on 15 and 28 July 2021. Mr Ammi Postma (applicant) was in attendance in all sessions and was represented by Ms Venita van Wyk, an official from SAOU. Eastern Department of Education (respondent) was represented by its labour relations manager, Mr Asaduma Buyana.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 02 August 2021. Both parties submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
I have to determine whether the the applicant was employed by the respondent and should I find that he was employed, I must then determine the respondent owes outstanding salary to the applicant. Should I find that the applicant is indeed owed outstanding salary I am then required to issue an appropriate relief. BACKGROUND TO THE ISSUE
3. It is common cause that the applicant rendered teaching services at Simphiwe Khetwa Senior Secondary School from 02 August 2017 to 31 January 2018. He taught Afrikaans in Grades 8 and 9, and Life Orientation in Grades 8 to 10.
4. The applicant’s case is that the respondent owes him salary for a period of six months he actually worked from 02 August 2017 to 31 January 2018. The remuneration owed to him is calculated using the then applicable basic gross salary for temporal educators, which was R20 475.00, plus the 37% of the salary paid in lieu of benefits which was R7 575.75 per month. The total amount for the worked six months owed to the applicant, with 37% factored in, is R140 253.75.
5. The respondent disputes this claim and saying it never employed the applicant, or his employment was never authorised or endorsed by competent authority. It is not disputed that he rendered teaching services for the said period.
SURVEY OF THE EVIDENCE AND ARGUMENTS
6. The applicant testified that he has been a teacher from 1995. He has Bachelor of Arts in Philosophy and International Politics obtained in February 2007, and a Postgraduate Certificate in Education (Senior Phase and Further Education and Training) obtained in May 2017 (pages 2 and 3 of the applicant’s bundle A). Sometime in July 2017 he was approached by Simphiwe Khetwa SGB member and asked to apply for a vacant and available position for an Afrikaans teacher. The applicant then submitted his CV with copies of qualifications to the then acting school principal, Mr Nqono. The then Head of Division for Languages, Mr Ordendal and Mr Nqono informed him of the subjects and classes he was going to teach. After signing an assumption of duty form he started to report for duty and rendered teaching services on 02 August 2017. Mr Nqono and the EDO, Mr Sengoatsi, assured him that he was employed. They told him that they would be liaising with the District Office to ensure that his documents are processed and his salary is paid. When his salary was not paid end August, he inquired and was told his paper work was still being processed. He did not worry much as the experience he had with the Department was that processes take long and it was possible that he could start receiving his salary even after three months since assumption of duty. His wife, who is also employed by the respondent as a teacher, got her salary seven months after assuming her duties. In October 2017 the applicant met Mr Sengogatsi who assured him that he would be paid in two weeks’ time. After not receiving his salary as promised, he was told by Mr William and Mr Nqono to fill a form so that he could be paid from the LAIS budget while processing of his appointment that was still delayed. He filled the LAIS form (page 20 to 22 of A) and sent through to the District office. Still his salary was not paid. He would be called now and then to the District Office to fill forms, but still nothing materialized. He had pinned his trust on Mr Nqono and Mr Sengoatsi, who had told him that they were attending to the delay in processing his paper work. While all this was happening,he declined an offer of employment from a school in Oversteen. Then end January 2018, Mr Sigojo, the new principal, called him and told him that he was not employed at all as his qualifications did not match the post’s profile.
7. On cross-examination it was put to him that he was never employed by the Department from the onset (02 August 2017) as the District Director, the competent delegated authority, had not signed his appointment letter as required in terms of Respondent’s Human Resource Management Circular 1/2017. The applicant’s answer was that he never knew anything about the Circular. He relied on what he was told by the principal and the EDO, and had no reason to doubt them. They had assured him that he was employed, and that his paperwork was being processed, even though it was taking long.
8. Mr Khotso Sengoatsi (Circuit Manager also known as Education Development Officer – EDO) testified that Simphiwe Khethwa SSS is in Venterstad and falls under his Circuit. There was a visit by the Eastern Cape Provincial Legislature’s Portfolio Committee in Education, and it learnt that there was a vacancy which stood unfilled for an Afrikaans teacher at Simphiwe Khethwa SSS, and this had been the case for a long time. It then implored the District to prioritize filling the position. It had been problematic to get an Afrikaans teacher at Simphiwe Khethwa as Venterstad is bit rural, and there was less interest from teachers to go there. The then acting District Director, Mr Magadu directed that recruitment be done for this position, and indeed it was done and the applicant got appointed to teach Afrikaans and Life Sciences. The applicant started two weeks later after submitting his CV and qualifications’ copies. District Office human resources section asked that he submit his qualifications again, after sometime since he started. Human resources than communicated that the applicant did not have Afrikaans, and therefore he could not be captured in the Afrikaans position in the school. His qualifications did not match the profile of the post. When this was communicated to the applicant he was already working. Notwithstanding this development, the applicant was retained to render his teaching services as it was important to have a teacher before learners. Also, it was difficult to get an Afrikaans teacher in the Venterstad area. To address the challenge of being unable to capture the applicant to the Afrikaans position, Mr Magadu directed that he continue teaching and be paid from LAISE budget. This was communicated to the applicant and he was made to sign necessary forms. He rendered his services until end January 2018, when he was told that his employment could not be confirmed and that he must leave.
9. On cross-examination it was put to the witness that there was no CV and qualifications submitted for the applicant. Mr Sengoatsi’s answer was that he took the applicant’s CV, qualifications and other document and submitted them to the human resources office. When asked whether the applicant’s appointment was legitimate or not, his answer was that when it was picked up that his qualifications did not match the post profile his appointment was not approved. What then happened was the issuing of an instruction by Mr Magadu that he continue to work and be paid from LAISE budget.
10. Mr Nceba Magadu (the then acting District Director for Joe Gqabi District under which Simphiwe Khethwa falls) testified for the respondent that there could have been Eastern Cape Provincial Legislature Portfolio Committee meeting visit in 2017. He cannot recall what was discussed and resolved. On the issue of whether he gave a go ahead that the applicant continue to render teaching duties even though he could not be employed, his answer was that inasmuch as he cannot remember the visit, what he knows is that as a District Director he would not have allowed the flouting of policy. It is against policy to allow an educator to work without an appointment letter. He even referred to Circular 1 of 2017, which precluded such practice. He also would never have directed that the applicant be paid from LAISE budget as money from this budget is not meant to pay educator salaries. Also, on co-ordination and management of LAISE budget Mr Sengoatsi was never part of it and would never have been aware of what the money was to be spent on. Mr Magadu is therefore saying Mr Sengoatsi’s version, that he directed that LAISE budget be used to pay the applicant, is untrue.
11. It was argued for the applicant that it was the school’s SGB which approached the applicant telling him that they are in dire need for an Afrikaans teacher. There was a vacant post at the school as was confirmed through Mr Sengoatsi’s testimony. Mr Sngoatsi had taken it upon himself as the Circuit Manager to ensure that there was an Afrikaans teacher, as per the Portfolio Committee’s direction. The applicant commenced his duties on 01 August 2017 and rendered them up until 31 January 2018. In between these dates, he would be told that human resources was attending to the capturing of his employment in the system in order to effect his payment. He had been asked to sign an employment contract and then told at some stage that he would be paid from LIAS budget. After some time after having rendered his services he was told that he could not be employed as his qualifications did not correspond with the job profile. The EDO had been instrumental in the process, and at all times the applicant would be assured that his employment was intact, and what was outstanding were human resources processes to ensure that he eventually get paid. Having rendered his duties under impression created by the respondent’s employees (school principal and the EDO) that human resources processes were set motion to get him paid for his services. The respondent should therefore be ordered to pay the applicant for the teaching services he rendered from 01 August 2017 to 31 January 2018.
12. For the respondent it was argued that educators cannot assume duties without the written permission of the employer. In the case at hand, the Department did not give such permission and this means he was never an employee and is thus not entitled to any pay from the Department. The respondent relies on the principle laid out in Phera v Education Labour Relations Council where the LAC held that where an employee assumes duties without written permission from the Department, such assumption of duties would not establish any employment relationship. In terms of section 3(1) of the BCEA provides that this act applies to employees only, and this means enforcement of BCEA claims can only be done with regards to employees. It is therefore prayed that the applicant’s claim be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
13. What distinguishes the applicant’s circumstances from Phera’s case is that in the latter, the job applicant was clearly made aware that his employment would not be solemnized without the signing of a confirmation by the District Director, whereas in the former the applicant was told to commence with his teaching duties while paper work would be attended to by the District Office. The circuit manager’s actions had also assured the applicant that indeed, his employment as temporal educator was solemnized. The fact that there was delay in payment never gave rise to a conclusion that his employment was not solemnized. There was even an attempt to pay him from the LAISE budget when it became clear that he could not be captured on Persal because of his qualifications did not matching the post profile. The Department, through the EDO and the principal allowed the applicant to continue rendering his duties. They assured him that he would be paid from LAISE budget. The fact that Mr Magadu disputes that he had told Mr Sengoatsi that the applicant should be paid from LAISE budget is denied, does not negate the fact that the applicant was always assured that his rendering of services was authorised by the Department. This representation was given by the EDO and the principal. He was only told, in no unequivocal terms that he could not be employed on 31 January 2018.
14. In light of the aforesaid, I find that the applicant was indeed employed by the respondent as such representation was given to him by officials who represented the Department. He was employed from 02 August 2017, when he was directed to assume his duties, to 31 January 2018, when he was told he could not be employed. The respondent is therefore liable to pay him the salary for the period he worked. The scale upon which his salary is to be calculated is that of a temporal educator applicable by then and has not been disputed by the respondent.
15. The applicable gross monthly salary at the time for a temporal educator was R20 475.00 plus R7 575.75, which is 37% of gross monthly salary in lieu of benefits, which equals to R28 050.75. In August 2017 the applicant only worked 29 days, and this means that he is only entitled to R26 819.78 (R924.82 daily rate x 29 days). For the remaining full five months from 01 September 2017 to 31 January 2018, the applicant is entitled to R140 253.75, which is added to the August 2017 salary. The total amount of outstanding salary owed to the applicant is R167 073.63
AWARD
16. I therefore make the following award:
16.1. The applicant was the respondent’s employee for period 02 August 2017 to 31 January 2018 and had worked for an actual period of six months.
16.2. The respondent is ordered to pay the applicant the basic salary plus 37% in lieu of benefits for a period 02 August 2017 to 31 January 2018, which is R167 073.63, minus any deductions the respondent is supposed to make in terms of the law. This amount should be paid to the applicant by not later than 31 September 2021.