2 November 2022 – ELRC868-21/22MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD VIRTUALLY ON 08 JUNE 2022, 29 AUGUST 2022 & 20 SEPTEMBER 2022

Case Number: ELRC868-21/22MP
Commissioner: Moraka Abel Makgaa
Date: 31 October 2022
In the matter between: –
Kekana Queen Moyagabo Applicant
And
Education Department of Mpumalanga Respondent

ARBITRATION AWARD

Nature of the dispute: Alleged constructive dismissal.
DETAILS OF THE HEARING AND REPRESENTATION
1 The applicant was present and represented by Mr Tshepo Mashile, an Attorney from Mkhonto and Ngwenya Incorporated, whereas the respondent was represented by Mr Bongane Malaza, employed by the respondent as the Labour Relations Practitioner.
2 Interpretation services were rendered by Mr Herbert Matsenene, a part-time Interpreter of the ELRC. The proceedings were conducted in English and digitally recorded.

BACKGROUND TO THE DISPUTE
3 The factual background to this matter, particularly with regard to both common cause issues and issues in dispute, has been summarised from the parties’ signed pre-arbitration minutes and evidence (both documentary and oral) led during the arbitration hearing. The following were agreed to be issues in dispute:
3.1 Whether the applicant was employed by the respondent as an educator or as a Grade R practitioner.
3.2 Whether the applicant’s absence from work since 26 February 2021 constituted abscondment.
3.3 Whether the applicant was constructively dismissed.
Facts which are common cause or not disputed
4 The applicant submitted an application for a permanent educator’s post for Grade R at Dientjie Primary School. She was successful and employed by the respondent with effect from 01 April 2015. She was apparently diagnosed with major depressive disorder. She took temporary incapacity leave for the period 10 September 2020 until 23 October 2020, which was followed by another temporary incapacity leave from 03 November 2020 until 14 December 2020. The applicant took another temporary incapacity leave for the period 19 February 2021 to 25 February 2021. She was supposed to report for duty on 26 February 2021, but she never did.
5 On 29 March 2021 the respondent’s Labour Relations section wrote a letter to the respondent’s Human Resources section (“HRS”) indicating that a report was received from the school principal to the effect that the applicant has last reported for duty on 14 December 2020, and that she was also absent from work as from 15 December 2020, as well as from 01 February 2021 until 29 March 2021. HRS was advised to terminate the applicant’s services in terms of the provisions of section 17(3) of Public Services Act read with the respondent’s HR directive 13 of 2012. The applicant’s services were indeed terminated. She was nonetheless paid her salary for the month of March 2021.
6 The applicant filed a dispute of constructive dismissal which was apparently accompanied by a condonation application for late referral. The condonation application was handled by my colleague, commissioner Thabo Maruping, who issued a Condonation Ruling on 17 March 2022 in favour of the applicant. After the matter could not be resolved at the conciliation, it was referred to arbitration and it served before me for the first time on 08 June 2022.
7 The respondent’s representative raised an objection in limine contending that the ELRC lacks jurisdiction to hear this matter on the basis that the applicant was appointed in terms of the Public Service Act, 1994 (“PSA”) as opposed to the Employment of Educators Act 76 of 1998 ( “the Educators Act”). In other words, it was contended that the matter ought to have been referred to the General Public Service Sectoral Bargaining Council (“GPSSBC”).
8 The applicant’s legal representative drew my attention to the fact that the respondent had made similar submissions in its opposition to the condonation application. The Commissioner who dealt with the condonation application declined to entertain the respondent’s point in limine on the basis that the applicant did not have to deal with the merits of the case in her condonation application. It was further held that the respondent’s jurisdictional point can only be decided upon hearing the case in its entirety.
9 The parties’ representatives were given specific time frames within which they must serve and file their written submissions with the ELRC concerning the respondent’s objection in limine. Both parties made their written submissions in line with my directives. A Jurisdictional Ruling was issued on 17 August 2022 dismissing the respondent’s objection in limine. The matter was set down for arbitration on 29 August 2022. We reverted to the pre-arbitration meeting. I managed to assist the parties to conclude the pre-arbitration minutes, which were later signed by the parties’ representatives. The parties’ representatives made an application for postponement of the proceedings for purposes of giving the parties the opportunity to fully prepare for arbitration, which would include preparing and exchanging their indexed and paginated bundles of documents and prepare their witnesses. The matter was postponed to 20 September 2022 per agreement of the parties.
10 The applicant submitted two separate evidence bundles, which were marked as bundles “A1” and “A2” respectively. Bundle “A1” is made up of 102 pages whereas bundle “A2” is made up of 3 pages. The respondent’s evidence bundle was marked as bundle “R”, and it is made up of 43 pages.
11 I wish to confirm receipt of the parties’ written closing arguments, which I have taken into account . I am indebted to the quality of the submissions made by parties’ representatives.
SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
12 Kekana Queen Moyagabo ( who is the applicant in this case), testified under oath, and her evidence can be summarized as follows. At the beginning she was employed by the School Governing Body of Dientjie Primary School as a Grade R educator, but from 2015 she was employed by the respondent in the same position. Besides teaching learners she was also a Coordinator of the learners’ feeding scheme at the school. Her relationship with Ms Mokoena, who is the present school principal, and was at the beginning of the problems the acting principal, became sour after a staff meeting where the applicant questioned as to why the school was taking the learners’ feeding scheme groceries to be used for the needs other than those of the learners. She said this during a plenary meeting at the end of the year, in preparation for the following year. Ms Mokoena, started to be personal towards her and even pointed an accusing figure at her during that plenary meeting.
13 Ms Mokoena took over as the acting principal after the death of the former acting principal. The situation became worse in the sense that Ms Mokoena used to call her to several meetings, which included a meeting of School Management Team, where she was accused of issues relating to the learners’ feeding scheme. She was ultimately replaced as the Coordinator of the feeding scheme, but was nonetheless instructed to help the new Coordinator. The ill treatment by Ms Mokoena continued to the extent that she was even scared of attending morning devotions and staff meetings.
14 One day the principal called her to a meeting to ask as to why she was no longer attending staff meetings. She told the principal to stop calling her to endless meetings because that was disturbing her work. The principal ended up threatening to prefer charges of misconduct against her. The principal wrote letters dated 07 October 2019 and 13 November 2019 concerning an intention to charge her with misconduct, which she never did.
15 During her temporary incapacity leave, the principal sent someone to call her to the school. Upon arrival at school she requested the principal to give her time to cool down before she could tell her the reason why she has been called to the school. She later went back home. The following day the principal sent some teachers to call her to the school as there was a letter which she wanted to give to her. Upon arrival, the principal gave her a letter in the presence of the Admin Clerk. She took the letter but could not open it as she was afraid of what may be written in the letter.
16 She went to the hospital where she was attended by a psychologist, who assisted her to open the letter. She thereafter requested her sister’s daughter to accompany her to the Circuit Office. The Circuit Manager gave her temporary incapacity leave forms to be completed by her and the treating doctor. The Circuit Manager told her that since she was not well, she could ask someone to take the forms to the school, hence she requested her sister’s daughter to do so. Her sister’s daughter came back with the forms. The forms were brought back, and she was told that there was a portion which required corrections. Her treating doctor was on leave. She then requested her daughter to take the forms back to the school for safe keeping. The principal sent the form back to her through the security Officer. She was surprised and confused, and she never sent the forms back to school. Her children, after realizing that her health was deteriorating, took the applicant to her mother’s home in Pretoria. She further testified that she would not be able to return to work because she is not fit for work.
17 Under cross examination, she insisted that when appointed by the respondent in 2015 she was in possession of the relevant qualifications. She further testified that at the time of declaring the dispute she was in possession of a SACE registration certificate. She conceded that she last reported for duty in 2020, and that she never reported for duty until she was discharged from work. She received her last salary in March 2021. She was never told about reasons why her salary was frozen. She had never submitted a resignation letter. What she did was to go to the respondent’s Labour Relations section at the District Office to lodge a complaint because she was no longer receiving her salary. She was told that the school principal came to the District Office and requested that her salary must be stopped. She was advised to write a letter. She ended up referring the matter to the ELRC.
18 She further testified that she did not have any other sick note except the one which was issued for the period 19 February 2021 to 26 February 2021.
SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
19 Bless Sekgobela’s evidence can be summarized as follows. He is employed by the respondent as HR principal Officer. His duties include appointment of educators on the PERSAL system. He has been doing this job since 2008. According to the applicable policy, an educator must be in possession of a teacher qualification and a SACE registration certificate whereas a Grade R practitioner must have a Grade 12 certificate plus an NQF level 4 or 5 certificate in Basic Child Care. The applicant did not qualify to be appointed as an educator because she was in possession of a Diploma in Educare, which is not a recognized three year teacher qualification. This is the reason why the applicant was appointed in terms of the Public Service Act as opposed to being appointed in terms of the Educators Act.
20 The document on pages 25 to 31 of the respondent’s evidence bundle is an application form which was completed by the applicant. This form is meant for educators only. On item 2 of the application form where the applicant was required to indicate the certified copies she had attached to the application, the applicant did not tick the columns dealing with professional qualifications and proof of SACE registration certificate. The applicant was only in possession of provisional SACE registration certificates which were valid for the periods 03 September 2011 to 03 October 2012, and 07 October 2015 to 07 October 2018.
21 The applicant’s pay slip shows clearly that she was appointed as a Grade R practitioner. The nature of her appointment on PERSAL was that of abnormal appointment. She was also paid a stipend, and she did not have any statutory deductions from her payments.
22 Under cross examination, he testified that he did not know the meaning of constructive dismissal. He conceded that he had never worked with the applicant at the same work place. He also conceded that he may not be able to testify as to whether or not the applicant’s working conditions were made intolerable or whether the was not victimized at the workplace, particularly by the school principal.
23 Silas Mokoena’s evidence can be summarized as follows. He is employed by the respondent as HR Admin Clerk responsible for appointments, termination of services and promotions of both educators and support staff, amongst others. He has been doing this job as from 2011. He is the one who froze the applicant’s salary and ultimately terminated her services on 30 March 2021. He had mistakenly put a wrong code dealing with resignations instead of a code dealing with ‘ dismissal for misconduct’. These actions were taken against the applicant after receipt of a letter from Labour Relations to the effect that the applicant services must be terminated on account of abscondment.
24 He further testified that the applicant was appointed in terms of the Public Service Act as opposed to the Educators Act.
25 Under cross examination, he testified that he was not aware of the fact that an employee can resign by way of conduct or through a written resignation. He also made the concessions similar to those made by Mr Sekgobela regarding the allegations made in support of the applicant’s version that she was constructively dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
26 According to section 186(1)(e) of the LRA, dismissal include a situation where an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee. In a case of this nature, the onus is on the applicant to establish the existence of the dismissal for the purposes of section 192 of the LRA.
27 I agree with Mr Mashile that there was completely no countervailing version on the part of the respondent in response to the applicant’s version that she terminated her contract of employment because the school principal made continued employment intolerable for her. What the respondent did, in this case, was to call two witnesses to support the two jurisdictional questions which were raised at the commencement of the proceedings. I think it is prudent for me to first deal with the two jurisdictional questions.
Whether the applicant’s case ought to have been referred to the General Public Service Sectoral Bargaining Council (“GPSSBC”).
28 I agree with Mr Mashile that this question was decided in the Jurisdictional Ruling which I issued on 18 July 2022 and is therefore hit by the res judicata principle. I am also of the view that some of the evidence ( both oral and documentary) tendered obo the parties supports the correctness of my Jurisdictional Ruling. It is, for instance, clear from the heading of the application form (i.e ‘FORM EDU1 as revised in June 2015’), that the applicant had applied for a permanent educator post. It is also clearly stated in Part Five of FORM EDU1, dealing with recommendation and approval, that the applicant was recommended by the chairperson of the governing body, the school principal and the Circuit Manager as a Grade R educator.
29 Despite blaming the applicant for failing to tick the columns meant to establish as to whether the applicant had attached certified copies of a recognised teacher qualification and a SACE registration certificate, Mr Sekgobela testified that the application form which was used by the applicant is meant for educators only. It effectively means that the conclusion that the applicant had applied for an educator post for the purposes of the Educators Act, is also supported by the respondent’s witness.
30 Paras B.3.2.1.3 and B.3.2.1.6 of Personnel Administrative Measures 12 February 2016 (PAM),, provides for circumstances under which a person who is not appropriately qualified may be appointed as an educator. I do not think it is necessary to enumerate these circumstances. It is sufficient to indicate that the respondent’s contention that only persons with teacher qualifications are appointed as educators in terms of the Educators Act, is not entirely correct.
31 The conclusion that the applicant was appointed as an educator within the ambit of the Educators Act appears to be supported by the principal’s letter dated 05 February 2021,which is on page 3 of the applicant’s supplementary bundle. The applicant was, accordingly, informed that if she could be absent from work for 14 consecutive days without authorisation, she would be discharged from work. The principal was apparently relying on the provisions of section 14 of the Educators Act, which deals with “certain educators deemed to be discharged” on account of misconduct.
Was the applicant deemed dismissed on operation of law
32 It should be borne in mind that the main reason why this question could not be entertained in my Jurisdictional Ruling was, in the first instance, brought through the back door. Secondly, the respondent’s own documents suggested that the applicant had indeed resigned from the public service. It was against this background that I felt the best approach would be to defer this jurisdictional question to the arbitration hearing.
33 It appears to be common cause that the last day the applicant was at work was on 09 September 2020. She was thereafter on temporary incapacity leaves for three periods, which followed one another. It also appears to be common cause that the forms for the temporary incapacity leave in respect of the last period, i.e 19 February 2021 to 25 February 2021, were never submitted by the applicant for further processing. My understanding of the respondent’s case is that the respondent was not concerned with the applicant’s failure to return the forms for the incapacity leave in respect of the last period, but it appears as if the respondent took issue with the fact that the applicant never made an application for temporary incapacity leave or submit any sick note for the period commencing on 26 February 2021.
34 According to section 14 (1)(a) of the Educators Act, a permanently appointed educator who is absent from work for a period exceeding 14 consecutive days, without permission of the employer, such an educator will be deemed to have been dismissed for misconduct from the day following immediately after the last day of the educator being present at school. In Phenithi v Minister of Education and Others , the Supreme Court of Appeal held that the deeming provisions of section 14(1) of the Educators Act come into operation if the educator concerned, without permission of the employer, is absent from work for a period in excess of 14 consecutive days. It is further held, at para 11, that the operation of the provisions of section 14 (1)(a) may only be lifted or revoked by the employer directing otherwise.
35 In the instant case, the applicant’s last temporary incapacity leave ended on 25 February 2021. The last sick note states, unequivocally, that the applicant was expected to report for duty on 26 February 2021, which she never did. It effectively means that the deeming provisions of section 14 (1)(a) came into operation as from 26 February 2021. At the time of termination of the applicant’s services on 31 March 2021, the applicant was absent from work, without permission of the employer, for approximately 34 days.
36 I accept Mr Mokoena’s evidence that the only reason why the category of termination of the applicant’s services has been captured as ‘resignation’ is because he mistakenly put a wrong code dealing with resignations instead of a code dealing with dismissals for misconduct on account of abscondment.
37 There are several problems with Mr Mashile’s proposition that the applicant had resigned by way of her conduct. The first problem is that there is no explanation as to why it is alleged that the dispute arose on 04 April 2022 in circumstances where the applicant had been absent from work on account of ill health since 10 December 2020. The only reasonable inference is that 04 April 2022 is the date on which the applicant was informed about reasons why her salary had been frozen. We now know that the applicant’s salary was frozen because of the operation of the deeming provisions.
38 The second problem is that Mr Mashile’s proposition is not even supported by the applicant’s own evidence. The applicant’s evidence is that the only reason why she stood up and went to the District Office was to go and enquire as to why her salary was frozen. She was, on her own version, apparently advised to invoke section 14(2) of the Educators Act, which provides as follows:
“ If an educator who is deemed to have been discharged under paragraph (a) or (b) of subsection (l) at any time reports for duty, the employer may, on good cause shown and notwithstanding anything to the contrary contained in this Act, approve the reinstatement of the educator in the educator’s former post or in any other post on such conditions relating to the period of the educator’s absence from duty or otherwise as the employer may determine”.
39 The only reasonable inference that may be drawn is that the applicant had either decided not to pursue the section 14(2) remedies or, if she did, she abandoned this route in favour of the constructive dismissal claim. The objective facts in this case do not support the applicant’s claim that she was forced to abandon her employment. There is, for instance, no medical evidence suggesting that the school principal was the cause of the applicant’s medical condition. Assuming for a moment, that the school principal should be blamed either for having caused or exacerbated the applicant’s medical condition, the question is whether the school principal can reasonably be blamed for what may or may have not happened to the applicant during the periods of her temporary incapacity leave, including when she was at her mother’s home in Pretoria. I do not think so.
40 There is also no evidence suggesting that the applicant may have undergone any medical examination during the period of the deemed dismissal. In fact she had conceded under cross examination that she did not have or submit any other medical certificate except the one where she was booked off from 19 February 2021 until 25 February 2022 or even complete any other temporary incapacity leave after 25 February 2022. I am of the view that, by escalating the matter, the school principal had acted in the best interest of the school, including the learners’ interests, as well as the interests of the respondent, and by extension the interests of the tax payers.
41 I accordingly make the following findings:
41.1 The applicant has failed to prove that she had terminated her employment as envisaged in section 186(1)(e) of the LRA. In fact, she never terminated her employment.
41.2 The applicant was deemed dismissed in terms of section 14(1)(a) of the Educators Act. This does not constitute a dismissal for purposes of the provisions of section 186(1) of the LRA. It is trite law that the ELRC, like any other bargaining council, lacks jurisdiction to entertain a dismissal by operation of law.
AWARD
42 The applicant’s claim of constructive dismissal is dismissed.