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22 April 2026 – ELRC1173-25/26FS

Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 1173-25/26FS
Date of award: 22 April 2026

In the Arbitration between:

Samuel Tshedi Tabile Applicant

and

Department of Education – Free State Respondent

DETAILS OF HEARING AND REPRESENTATION

  1. This is the arbitration award in the matter between Samuel Tshedi Tabile (the Applicant) and the Department of Education – Free State (the Respondent), which arbitration was held on 13 April 2026 on virtual platform (MS Teams).
  2. The Applicant represented himself whereas the Respondent was represented by Mr Vuyisile Gubuza, the Employment Relations Officer.
  3. The proceedings were digitally recorded, and handwritten notes were kept. Interpretation services were not required.

ISSUE TO BE DECIDED

  1. The dispute was referred as a claim of non-payment of salaries. The Applicant claims he is owed his salary for the period 13 May 2025 to 13 November 2025 whilst he worked as a temporary Educator at Rekgotsofetse Secondary School (PL01).
  2. The Respondent disputes an employment relationship with the Applicant prior to 1 August 2025.

BACKGROUND TO THE ISSUE

  1. The matter was initially scheduled for arbitration on 23 March 2026 but was postponed in light of new evidence from the Applicant that the Respondent sought to take under advisement.

SURVEY OF EVIDENCE AND ARGUMENT

  1. The testimonies, under oath, are fully captured on the digital recording, and a copy of the digital recording is available on request from the ELRC. Below is only a summary of the relevant evidence. If evidence is not captured herein, it does not mean that it was not considered. Documentary:
  2. Bundle “A1” was submitted into evidence by the Applicant, being a contract of employment, and bundle “R1” and “R2” was submitted into evidence by the Respondent. Its veracity was not disputed, and it was accepted as it purported to be. Evidence of the Applicant:
  3. The Applicant, Samuel Tshedi Tabile, testified that he started to work as a temporary Educator at Rekgotsofetse Secondary School on 13 May 2025, and he rendered his services continuously throughout 2025 in accordance with his contractual period of employment. He was only issued with a contract of employment (“A1”) on 15 August 2025, which he signed on even date. Clause 3 of this contract indicated that his employment was from 13 May 2025 to 13 November 2025.
  4. He has not been paid any salary for the entire period of 13 May 2025 to 13 November 2025 by the Respondent. He was seeking payment of his salary at R 351 972.00 per annum, in accordance with the contract that he signed with the Respondent (“A1”).

Evidence of the Respondent:

  1. Vuyisile Gubuza (“Gubuza”) testified that the Respondent did not dispute that the Applicant was owed his salary for the period 1 August 2025 to 13 November 2025, amounting to R 137 963.24.
  2. The Respondent is disputing the period 13 May 2025 to 31 July 2025, as claimed by the Applicant, despite the documentary evidence submitted by the Applicant. It is the Respondent’s case that the employment contract could not be backdated and only took effect on the date on which the contract was signed.
  3. The Applicant should seek payment for the period 13 May 2025 to 31 July 2025 from the School Governing Body.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. It was common cause that the Applicant is owed his salary from 1 August 2025 to 13 November 2025, and that this amounst to R 137 963.24 (one hundred and thirty-seven thousand nine hundred and sixty-three rand, twenty-four cents).
  2. The Applicant provided documentary proof that he signed an employment contract with the Respondent in terms of which he was employed on a temporary basis from 13 May 2025 to 11 November 2025. This evidence could not be rebutted by the Respondent.
  3. The Respondent’s case, that the employment contract could not be backdated, and that it only came into existence on the date which it was signed, is rejected. Firstly, if that is the position of the Respondent, it is in contradiction to it agreeing that it owes the Applicant payment from 1 August 2025, as the contract was only signed on 15 August 2025. Secondly, employment contracts can be backdated to reflect the actual date work began on when terms were agreed upon, as long as it is not used to misrepresent facts or evade legal obligations. Backdating is generally acceptable if it reflects the true commencement of the employment relationship.
  4. The Courts have further held that an employee is considered to be fully employed and therefore protected under labour law legislation from the moment the employment contract is concluded even if the employee has not yet actually started work. This applies even if nothing has been put into writing or signed, and the contract of employment has only been verbally agreed between the two parties, but the employee has, in fact, started rendering services as agreed upon.
  5. The Applicant led undisputed evidence that he rendered his services at Rekgotsofetse Secondary School since 13 May 2025. Furthermore, the employment contract, despite it having been signed on 15 August 2025, clearly defines the period of employment in clause 3 as from 13 May 2025 to 13 November 2025.
  6. The Applicant was able to prove, on a balance of probabilities, that an employment relationship existed between parties from 13 May 2025 until 13 November 2025, and that the Applicant is owed his salary for the aforementioned period.
  7. The salary owed for the period 1 August 2025 to 13 November 2025 has been calculated to be R 137 963.24 (one hundred and thirty-seven thousand nine hundred and sixty-three rand, twenty-four cents). This includes 37% in lieu of benefits, in accordance with the contract and for the specific period. However, this calculation is wrong.
  8. The Applicant is further owed his salary for the period 13 May 2025 to 31 July 2025, which is calculated as follows, and amounts to R 83 186.50 (eighty-three thousand one hundred and eighty-six rand, fifty cents):

13 – 31 May 2025: R 29 331.00/31×14 = R 13 246.26
June 2025: R 29 331.00 (R 351 972.00 / 12 months)
July 2025: R 29 331.00 (R 351 972.00 / 12 months)
Benefits (37%): R 11 278.24

Owed: R 83 186.50

  1. The Applicant is owed the total of R 221 149.74 (two hundred and twenty-two thousand one hundred and forty-nine rand, seventy-four cents) for the period 13 May 2025 to 13 November 2025 in unpaid salaries.

AWARD

  1. The Applicant, Samuel Tshedi Tabile, was able to prove that he is owed salaries for the period 13 May 2025 to 13 November 2025 by the Respondent, the Department of Education – Free State.
  2. The Respondent is ordered to pay the Applicant in the amount of R 221 149.74 (two hundred and twenty-two thousand one hundred and forty-nine rand, seventy-four cents) for salaries owed for the aforementioned period.
  3. The amount specified in paragraph 24 above must be paid to the Applicant into his bank account by no later than 15 May 2026.

Minette van der Merwe
ELRC Panelist