19 May 2025 – ELRC335-24/25FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY ON 25 NOVEMBER 2024 & 06 MAY 2025
Case Number: ELRC335-24/25FS
Arbitrator: Moraka Abel Makgaa
Date: 16 May 2025
In the matter between: –
SADTU obo Motaung Thabo Abraham Applicant
And
Free State Department of Education Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was heard virtually on 25 November 2024 and concluded on 06 May 2025. Mr Motaung Thabo Abraham, who is the Applicant in this matter, was present and represented by Mr Bells Mbhele, SADTU Branch Secretary in Thabo Koao Branch. The Respondent was represented by Mr Thulo Tsunke, employed by the Respondent as its Assistant Director: Employment Relations.

2 On 25 November 2024 interpretive services were offered by Mr Masilo Dick Hlujane, the Part-Time Interpreter of the ELRC whereas on 06 May 2025 the Part-Time Interpreter was Themba Tshabalala. The proceedings were conducted in English, and digitally recorded.
THE ISSUE IN DISPUTE
3 Whether the Respondent failed to pay the Applicant the outstanding salaries for the months of January 2024 and February 2024. If yes, I am required to determine the appropriate remedy.
BACKGROUND TO THE DISPUTE
4 The factual background to this matter has been summarised from the parties’ signed pre-arbitration minutes and the evidence presented in support of the parties’ cases. The Applicant was recommended by the school governing body for appointment against a Departmental Head post at Bluegumbosch Secondary School. The recommended actual date of assumption of duty was 15 January 2024.
5 On 14 March 2024 the Applicant was paid a salary in the amount of R 4 069.52. He received another salary payment of R21 001.00 on 20 March 2024.He was not paid during January 2024 and February 2024. The Applicant, assisted by SADTU, decided to refer a dispute of non-payment of salary to the ELRC. The dispute could not be resolved at the conciliation stage.
6 The matter was referred for arbitration and served before me, for the first time, on 25 November 2024. The Respondent’s Representative was admitted to the hospital, but he, nonetheless, joined the arbitration meeting via zoom. The parties agreed to drawing the pre-arbitration minutes, which was done with my guidance. The matter was postponement and ultimately heard on 06 May 2025.
7 The Applicant submitted a bundle of documents marked as Annexure “MTA1”, made up of 10 pages. Mr Tsunke for the Respondent did not submit any evidence bundle. The parties agreed that they will use the Applicant’s bundle of documents as a joint evidence bundle. The parties were given until 14 May 2025 to submit their written closing arguments. I wish to confirm that the only written submissions I received are those of the Applicant, which have been taken into account in this matter.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
8 Thabo Abraham Motaung, who is the Applicant in this matter, testified under oath. He testified that he qualified as a teacher in the year 2020, with a Bachelor of Education, specializing in EMS, Business Studies and Accounting. In 2023 he was volunteering at Bluegumbosch Secondary School, teaching Accounting.
9 He was recommended for appointment in the post which became vacant after the resignation of Mr Mabe TB at the end of December 2023. He assumed duty on 15 January 2024. On 15 March 2024 he received both the Appointment Letter and contract of employment, which are on page 2 to 7 of Annexure “MTA1”. His remuneration was R318 648.00 per annum
10 Under cross examination, he testified that after receipt of the first payments in March 2024 he went to the District Office to make enquiries. He was informed that the outstanding salary will be paid to him in due course. He further testified that for the month of January 2024 he expected to be paid a salary of about R15 000.00.
11 He disagreed with the proposition that the R4 069.52 which was paid to him on 14 March 2025 was pro rata payment calculated from the date on which the Applicant’s documents were received by the Department. He also disagreed with the proposition and that the SGB was responsible part the payment in January 2024.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
12 Thulo Tsunke’s testimony, which was also given under oath, can be summarised as follows. He testified that payment made to the Applicant on 20 March 2024 was his salary for the period 20 February 2020 to 20 March 2020. The Applicant received a pro rata payment amounting to R4 069.52 for the period he worked during January 2024.
13 He further testified that the information about the Applicant’s appointment came to the attention of the Department in February 2024. He insisted that the SGB was responsible for payment of the other period in January 2024.
14 Under cross examination, he conceded that the Attendance Register on page 10 of the joint evidence bundle was the one which was submitted by the school to the Department, but insisted that the date of assumption of duty can be proven by the Assumption of Duty Form and not by the Attendance Register.
15 He also conceded that the Applicant must be paid from the date of assumption of duty, but disputed the evidence that the Applicant in this matter assumed duty on 15 January 2024. He testified that according to the available records, the Applicant signed the Assumption of Duty Form on 15 February 2024. The payment of R4 069.52 was for the period 15 February 2024 to 20 February 2024
16 He also conceded that the Respondent did not submit any document that could contradict the evidence in the school’s Attendance Register showing that the Applicant assumed duty on 15 January 2024. He accused the Applicant for deliberately leaving out the Assumption of Duty Form in order to confuse everyone at the arbitration proceedings.
17 He further testified that it was the Respondent’s HR section which is responsible for matters relating to payments of employees’ salaries. He declined to comment on the Applicant’s proposition that he did not understand HR documents by virtue of the fact that he was not attached to the HR section.
ANAYSIS OF EVIDENCE AND ARGUMENT
18 Clauses 69.6 and 69.7 of PART C of the ELRC Constitution: Dispute Resolution Procedures (Basic Education and TVET), 25 July 2023, provide as follows:
“ 69.6… an 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 , the Personnel Administration Measures, or any regulations or subordinate legislation promulgated by the Minister of Basic Education or the MEC for Education in a respective Province where an educator is employed as it relates to conditions of service, a collective agreement and a contract of employment.
69.7 The ELRC must appoint a commissioner/panelist in terms of section 135 of the Labour Relations Act to attempt to resolve by conciliation any dispute that is referred to the ELRC in terms of clause 69. The ELRC must commence the arbitration of a dispute referred in terms of this sub- clause immediately after certifying that the dispute remains unresolved in terms of section 135(5)”.
19 The net effect of clause 69.6 read with clause 69.7 is that the dispute relating to money owing is arbitrable. Simply put, the ELRC has jurisdiction to entertain the Applicant’s claim concerning the Respondent’s failure to pay him what he understood as outstanding salaries for the months of January 2024 and February 2024.
20 As already indicated, both the Contract of Employment and the Appointment Letter provide that the Applicant was appointed from the date of assumption of duty until 31 December 2024. It was also common cause between the parties that the Applicant was entitled to be remunerated from the date of assumption of duty. The only critical issue in dispute was whether the Applicant’s actual date of assumption of duty was 15 January 2024 or 15 February 2024.
21 I am inclined to accept the Applicant’s evidence that he had indeed assumed duty on 15 January 2024. In the first instance, the Applicant’s oral evidence was based on his own personal knowledge of what happened in this matter. Secondly, the Applicant’s version was also supported by documentary evidence in the form of the school’s Attendance Register.
22 It is important to indicate that during the pre-arbitration meeting of 25 November 2024 one of the issues which were identified by the parties as part of the common cause facts was the fact that the Applicant assumed duty on 15 January 2024. It was only on 06 May 2025 when the Respondent’s Representative indicated, without giving any explanation for such a change of heart, that it was no longer common cause that the Applicant assumed duty on 15 January 2024.
23 Mr Tsunke’s testimony that the Applicant assumed duty on 15 February 2024 was introduced, for the first time, when he was being cross examined by the Applicant’s Representative. This version was never put to the Applicant during cross examination, neither was it part of Mr Tsunke’s evidence-in-chief.
24 Besides insisting that the date of 15 February 2024 was supported by the information in the possession of the Respondent, Mr Tsunke never bothered to produce the Assumption of Duty Form or any other documentary evidence showing that the Applicant had indeed assumed duty on 15 February 2024. The evidence relating to the date of 15 February 2024 was simply based on mere ipse dixit of Mr Tsunke in circumstances where Mr Tsunke had no personal knowledge of what may or may not have happened at school in connection with the recruitment of the Applicant. In Makhothokho and Others v Pick n Pay Supply Chain (Pty) Ltd and Another (JS345/17) [2022] ZALCJHB 114 (24 May 2022), where the Labour Court said the following:
“[57] …The intended purpose of cross-examination is, inter alia, to reveal weaknesses in the evidence adduced, to challenge the truth or accuracy of the witness’s version, to bring to light facts reinforcing the cross-examiner’s case, to elicit favourable facts, to place a defence on record and to put the version of the cross-examining party.
[58] A party has a duty to cross-examine on aspects which he or she disputes. The rationale of the duty to cross-examine is that the witness should be cross-examined so as to afford him or her an opportunity of answering points supposedly unfavourable to him”.
[59] The failure to cross-examine a witness about an aspect of his or her evidence may have the result that the evidence may not be called into question later. The cross-examiner who disputes what the witness says has a duty to give the witness an opportunity to explain his or her evidence, to qualify it or to reveal its basis. Failure to do so has been dubbed extremely unfair and improper (citation deleted). Apart from the injustice to the witness, failure to cross-examine may indicate acceptance, comparable with an admission by silence (citation deleted). From this point of view, such evidence will carry more weight than evidence disputed by means of cross-examination and the failure to cross-examine, will be a factor increasing evidential value (citation deleted)”.
25 The inevitable and reasonable inference that may be drawn in the circumstances is that the date 15 February 2024 was introduced as an afterthought. To make matters worse, when considered in its totality, the Applicant’s evidence was riddled with contradictions, illogical explanations and lack of clarity.
26 In the circumstances, it is concluded that the Applicant had been successful in proving that the Respondent had either failed or refused to pay the Applicant, without any valid justification, the Applicant’s outstanding salaries for the months of January 2024 and February 2024.
27 It is my finding that the Applicant is entitled to be paid the total amount of R41 115. 87 (Forty-One Thousand One Hundred and Fifteen Rand Only), calculated as follows: January 2024: R14 561.87 (From 15 January 2024 to 31 January 2024 = 31-14 = 17; 17 x 26 554.00 ÷ 31 = R14 561.87) plus R26 554.00 for February 2024.
AWARD
28 The Respondent is ordered to pay the Applicant, Motaung Thabo Abraham, the outstanding salaries for the months of January 2024 and February 2024 amounting to R41 115. 87 (Forty-One Thousand One Hundred and Fifteen Rand Only).
29 The above amount must be paid by not later than 31 May 2025 or in the next salary run, whichever occurs first. This amount shall attract interest at the prescribed rate from the date of the arbitration award to the date of final payment.
DATED AND SIGNED AT POLOKWANE ON THIS 16TH DAY OF MAY 2025.