SALIPSWU on behalf of its member, M N Mxhosa “the Applicant”

and

THE HEAD OF THE
DEPARTMENT OF EDUCATION – KWAZULU-NATAL “the Respondent”

ARBITRATION AWARD

Case Number: PSES438-19/20KZN

Last date of arbitration: 12 March 2020

Date of award: 22 March 2020
J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 24 January 2020 and proceeded again on 5 March 2020, on which day, the presentation of evidence was finalized. The Applicant’s representative thereafter requested permission to submit written closing argument and both parties were granted permission to do so by no later than 12 March 2020.

2. The arbitration was held at the Harry Gwala District Office of the KwaZulu-Natal Department of Education.

3. SALIPSWU, a trade union, referred this dispute on behalf of its member, Mary-Edna Nandipha Mxhosa (hereinafter referred to as the Applicant) and was represented at this hearing by its official, Mr A S Mkhize. Three bundles of documents, marked exhibits A-C respectively, were submitted on behalf of the Applicant.

4. The Respondent, the Head of the KwaZulu-Nata l Department of Education (the Department,) was represented by its employee, Mr M Mdunge. A bundle of documents, marked exhibit D, was submitted on behalf of the Respondent.

5. The proceedings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

6. While the notice of set down refers to this dispute as being one in respect of an alleged unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA,)the Applicant’s referral describes to her claim as being in respect of the ‘non-payment of salary.”

7. Both parties agree that the dispute is in respect of the failure of the Respondent to pay the Applicant remuneration for the period I April-18 August 2018. The nature of the dispute is thus more accurately described as being one in respect of section 33A of the LRA read with Clause 7.2.2.2 and Clause 69 ELRC Constitution-Part C (Collective Agreement 6 of 2016) and Section 32 of the Basic Conditions of Employment Act 75 of 1997 (BCEA); namely, the alleged failure by the Respondent to pay the Applicant an amount owing to her.

BACKGROUND

8. It is common cause that the Applicant was employed as an educator at Westlands Primary School (the School) from 1 April 2017 until 31 March 2018.

9. The Applicant contends that she continued to be employed at the school from 1 April 2018 until 16 August 2018, after which she was employed at a different school. The Respondent disputes that the Applicant was employed by it during this period. It is further common cause that since 1 April 2019 she has once again been employed as an educator at the School.

10. The Applicant claims that she was not paid her basic monthly remuneration of R20 475 for each of the five months from 1 April-31 August 2018. The Respondent does not dispute that it did not pay her during this period but it avers that she was not its employee during this period and that she accordingly is not entitled to the remuneration claimed.

11. No evidence was given by or on behalf of the Applicant in respect of her alleged employment for the period 17-31 August 2018.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Applicant’s case

12. After having completed her Bachelor of Education degree, the Applicant submitted her qualifications to the Harry Gwala District Office of the Department. Shortly thereafter she received a telephone call from the district office inviting her to an interview at the School for a position as an educator. There were four other interviewees. She was thereafter notified by the School principal that she was the successful candidate and she commenced working at the School in April 2017. At the time, the Applicant was under the impression that her appointment was permanent but she later learnt that it was a temporary one.

13. At the time of her appointment, she completed an “assumption of duties” form but she did not receive a letter of appointment. She has similarly not been given a letter of appointment in respect of her current permanent appointment.

14. Throughout the period from April 2017 until March 2018, the Applicant did not receive her remuneration on a monthly basis. She would complain to the School principal and thereafter she would receive a payment. These payments were generally received every three months. No remuneration is due to her for this period.

15. Under cross-examination, the Applicant submitted that at the interview she was informed that the vacant position was caused by the retirement of a certain Ms Fikele. She had not been informed that she was being employed as a substitute educator in the place of Ms Nonjeke, who had been appointed as an acting head of department. The assumption of duty form put up and signed by the Applicant and at page 1 of exhibit A, however, records that her appointment was “temporary” as a replacement for “Nonjeke N G.”

16. Ms Nonjeke had later received her permanent appointment as head of department during April 2018 and in August 2018, the Applicant had been placed at a different school.

17. When the Applicant had signed her initial “assumption of duty” form in March 2017 she had not been informed that her employment was only for a twelve month period.

18. Nonkululo Monica Tambo (Tambo) is the principal of the School. The Applicant had commenced working at the School in March 2017 and in April 2018 Tambo had completed the prescribed “conversion forms” by which the Applicant’s status would change from a temporary employee to a permanent one in terms of Resolution 1/2006. (The resolution referred to is the KwaZulu-Natal Provincial Chamber’s collective agreement 1 of 2006.) Tambo submitted these forms to the District Office. Copies of these forms, however, were not part of the Applicant’s bundle of documents.

19. The Applicant had continued working at the School from April 2018 until August 2018 when Tambo was informed by the District Office that the Applicant had been placed at Soul Primary School. This information was conveyed to her verbally and she was informed that the Applicant would receive written notification.

20. With regards to the period April-August 2018, Tambo had completed and signed the “notice of assumption of duty” form for the Applicant. A copy of the form is exhibit A submitted by the Applicant. Exhibit A is a copy of the form as completed by her before she submitted it to the circuit office. As such it does not reflect those sections completed by the circuit and District Office. Exhibit A records that the Applicant was to be appointed as a temporary educator with effect from 10 April 2018 for an indefinite period as a replacement for N G Nonjeke who had been promoted. Exhibit A is not filed in the Applicant’s file maintained by the District Office.

21. The Applicant had taught at the School from 10 April 2018 until 16 August 2018, which is reflected in the attendance register at pages 5-14 of exhibit B.

22. Under cross-examination, Tambo stated that she had not received written confirmation from the Department of the Applicant’s appointment either when she initially started teaching at the School in April 2017 or subsequently in April 2018. She had never received an appointment letter in respect of any temporary educator employed at the School. She had only ever completed the “assumption of duty” forms.

23. Tambo conceded that she had not received verbal confirmation from the circuit manager that the appointment of the Applicant in April 2018 had been approved. She had expected the Respondent to appoint the Applicant as a permanent employee in April 2018 as by then, she had already worked for twelve months as a substitute educator in the place of Nonjeke, who was acting as head of department.

24. Tambo, despite having earlier stated that she had never received an appointment letter in respect of a temporary educator, conceded, when it was put to her that before an educator could commence working an appointment letter was required, that she would usually get placement and appointment letters. This had not occurred with the Applicant.

The Respondent’s case

25. Zuzile Sobahle (Sobahle) has been employed by the Department since 1992 and he has worked in the appointments section of the District Office since 2013. He explained that:

25.1. The process to appoint a substitute educator begins at school level with the principal detailing the need to substitute;

25.2. The “assumption of duty” form is then sent by the principal to the circuit office for completion by the circuit manager;

25.3. Once the circuit manager has completed the form supporting the appointment of the substitute educator, the form goes to the human resources section of the District Office; and

25.4. Ultimately, if the appointment is approved, the district director issues an offer of appointment to the substitute educator. The principal of the school ought to follow up on progress of the request to appoint.

26. An example of a complete and approved assumption of duty form is at pages 15-24 of exhibit D. This form is in respect of the appointment of the Applicant for the period 1 January-31 March 2018 as a substitute educator in the place of Nonjeke, who was acting as head of department. (Page one of exhibit B reflects that for the period 1 April 2017 until 31 March 2018 the Applicant had been employed in terms of four consecutive three month contracts.)

27. Under cross-examination, Sobahle stated that temporary educators were usually employed for twelve months. If the District Office receives an incomplete “assumption of duty” form, it would contact the circuit office by telephone to follow up.

28. Sobahle had no personal knowledge of the Applicant’s position.

29. Sicelo Zimema (Zimema) is the assistant director of human resources at the District Office. He has personal knowledge of the Applicant’s position.

30. When an educator is appointed as a substitute educator in place of another who has been appointed in an acting position, the offer of employment letter is submitted to the District Office together with the assumption of duty form. Should the substitute educator’s contract of employment be renewed, the original letter of employment together with the new assumption of duty form for the new contract period is used to record the extension of the substitute educator’s contract.

31. The assumption of duty form at page 15 of exhibit D is in respect of the appointment of the Applicant as a substitute educator for Nonjeke for the period 1 January 2018-31 March 2018. As an acting placement is usually for a period of three months, the substitute educator’s period of employment is also for the same period. In the case of the Applicant and as seen on page one of exhibit B, the Applicant had initially been appointed for a three month period commencing on 1 April 2017. This contract had then been periodically renewed until the last period commenced on 1 January 2018 and terminated on 31 March 2018. As Nonjeke had been appointed as head of department with effect from April 2018, the Applicant could no longer be appointed as a substitute educator in her place after 31 March 2018. Once Nonjeke had been promoted, the School principal ought to have declared her old post vacant and were the Applicant to be appointed, a new offer of employment would have had to have been issued to the Applicant by the District Office Director.

32. With regards to exhibit A, Zimema states that the form incorrectly stipulates that the Applicant was being employed as a substitute for Nonjeka, who had been promoted. In such a case, a substitute would not have been appointed but rather the post previously occupied by Nonjeke ought to have been declared vacant. Under cross-examination, Zimema stated that he had rejected exhibit A when it had been received by him as it was not accompanied by the offer employment letter in respect of the by then vacant post. With regards to Tambo’s evidence that he had verbally told her to appoint the Applicant, he stated that he had no recollection of such a conversation, but he would only have said that once all the required documents had been submitted. The principal, Tambo, ought to have declared the post vacant and recommended the appointment of the Applicant. The reason why the Applicant had not been paid is that this process had not been followed and hence an offer of employment had not been issued by the District Director.

33. At page 37 of exhibit D is a letter sent by SALIPSWU to the District Office demanding payment of the Applicant’s remuneration. The response from the District Office is at pages 38-39. Zimema has personal knowledge of the content of this latter letter. He is recorded in the letter as the person to whom enquiries ought to be directed. The letter from the District Office includes the following two paragraphs” “Ms Mxhosa was offered employment at Westlands Primary as a substitute teacher against the vacant HOD post. The contract of Miss Mxhosa expired on 2018.03.31. the educator was appointed as a substitute educator for Ms Nonjeke who was acting as an HOD at the school. Ms Nonjeke was promoted on 10 April 2018. The DTT placed the teacher who was a permanent teacher in a substitute vacant post. That teacher has challenges at the school since the principal did not accept the placement of that teacher.”

34. The DTT referred to in the second paragraph above is a reference to the departmental task team set up to place temporary educators in permanent posts in accordance with the provisions of the KwaZulu-Natal Chamber’s collective agreement 1/2006. This second paragraph was dealt with by Zimema under cross-examination.

35. Zimema stated that the DTT had placed an educator, previously employed as a temporary educator, in the post vacated by Nonjeke on her promotion. The educator had reported to the School in April 2018 but had been prevented from taking up the post. It was put to Zimema that the educator had not been prevented from occupying the post but instead had not arrived at the School to do so. It was further put to Zimema that it was after this other educator had failed to take up her post that he had told Tambo to process the appointment of the Applicant. Zimema did not recall having said so and, in any event, stated that he could only have said so if there had been an offer of employment in place for the Applicant, which there was not. Zimema agreed that he had met with the Applicant in the April/May 2018 period and told her that he was trying to finalize her case. He also agreed that he had met with the Applicant, Tambo and the circuit manager and said that the Applicant should continue working whilst her forms were corrected. He had been made aware that the Applicant was occupying the post vacated by Nonjeke.

36. When the Applicant’s period of employment terminated on 31 March 2019 she ought to have been issued with a letter of termination as her contract had come to an end and it would not have been renewed as Nonjeke had then received her permanent appointment as a head of department. No such letter was in the file of the Applicant. It was, however, also the responsibility of Tambo to have notified the Applicant that her substitute post had ended on the permanent appointment of Nonjeke.

37. Sobahle testified on behalf of the Respondent on the procedure followed in appointing educators. The school principal completes her section of the “assumption of duty” form before sending it to the circuit office and ultimately if the appointment is approved the District Director signs the form and issues an offer of employment letter.

SUMMARY OF ARGUMENTS
The Applicant

38. It was submitted on behalf of the Applicant that it was not in dispute that she had worked at the School during the period April-August 2018. The attendance register submitted into evidence as part of exhibit B was proof of this. It was further not in dispute that Zimema had told her to continue working whilst her documentation was being processed.

39. The Applicant had filled a vacant post at the School during the disputed period.

40. The content of Collective Agreement 4/2018, the purpose of which is, inter alia, “to regulate the conversion of temporary educators to permanent educators, ” is referred to and it is submitted that the Applicant’s appointment ought to have been converted in accordance with the provisions of this collective agreement. The provisions of collective agreement 1/2006 of the KwaZulu-Natal Chamber, which was referred to in the evidence of Tambo, is not referred to in the closing argument.

41. The closing argument finally makes reference to the fact that appointments are made on the recommendation of the school governing body. The significance of this provision is, however, not elaborated upon.

The Respondent

42. It was submitted that the Applicant had not been appointed by or on behalf of the Respondent after her contract of employment to act as a substitute for Nonjeke expired after Nonjeke had been appointed head of department.

43. Tambo had misled the Department when she had completed the assumption of duty form, exhibit A recording that the Applicant would be acting as a substitute for Nonjeke for the period from April 2018.

44. It was the evidence of Zimema that the Applicant had not been appointed for the disputed period as an offer of employment or appointment letter had not been issued to her. Further the assumption of duty form, exhibit A, had not been processed by the District Office as it was incomplete.

45. As the Applicant had not been appointed, she was not entitled to be paid remuneration.

ANALYSIS OF EVIDENCE AND ARGUMENT

46. The Applicant’s claim is for remuneration due to her for the period April-August 2018. In order for her to succeed in her claim she is required to prove firstly that she was employed by the Respondent and secondly that the remuneration she was entitled to receive, was not paid.

47. The Respondent admits that it has not paid the Applicant any remuneration for the said period. It, however, denies that any remuneration is due to the Applicant as it had not employed her during that period.

48. In terms of section 6 of the Employment of Educators Act 76 of 1996 the Respondent would be required to appoint the Applicant as an educator at the School.

49. The evidence of the Applicant was largely unchallenged. After she had qualified she had given her details to the District Office. Shortly thereafter she was contacted by the District Office and invited to attend an interview at the School. Following the interview was notified by the principal, Tambo, that she was the successful candidate and she commenced teaching at the School in April 2017. She had remained at the School for a continuous period until mid-August 2018. She had initially thought that her appointment in April 2017 was in a permanent post but she had later discovered that she was substitute for Nonjeke who was then acting as head of department at the School. She had continued to teach in the place of Nonjeke after she had been promoted until she was transferred from the School in August 2018. She did no mention of the replacement teacher referred to by Zimema under cross-examination.

50. Page one of exhibit B records that the Applicant had been employed by way of four fixed term contracts each for a period of three moths for the period 1 April 2017 until 31 March 2018. It is not in dispute that during this period the Applicant was a substitute educator in the place of Nonjeke who was acting as head of department during this period. It is further not in dispute that Nonjeke was promoted to head of department with effect from 10 April 2018.

51. Tambo, the School principal, confirmed the evidence of the Applicant that she had worked at the School since April 2017. In April 2018 Tambo had completed the “assumption of duty” form for the Applicant for the period commencing on 10 April 2018. The form is exhibit A. The form records that the Applicant’s appointment was as a temporary replacement for Nonjeke who had been promoted. After she had completed the form she had sent it to the circuit office. She had not received a completed form back from the District Office and she had not received a letter of appointment for the Applicant.

52. Despite having completed the “assumption of duty” form indicating that the appointment of the Applicant with effect from 10 April 2018 was temporary, she testified that she had expected her appointment to be permanent as the Applicant had worked as a temporary employee for more than twelve months and she had completed and submitted the necessary forms for her employment to be converted to permanent status as provided for by resolution 1/2006 of the KwaZulu-Natal Chamber of the ELRC. No evidence in support of such an alleged conversion was submitted.

53. Tambo had not received a letter of appointment for the Applicant. She conceded under cross-examination that she would usually receive placement or appointment letters for educators appointed to teach at the School.

54. Tambo made no mention of the educator who had been placed at the School as a replacement for Nonjeke by the departmental task team. It was, however, common cause that such an appointment had been made.

55. Zimema testified that an offer of appointment letter is issued to all new appointees. As Nonjeke had been promoted in April 2018, her post had become vacant and the appointment of the Applicant as a substitute for her could not simply be renewed as it had been over the preceding twelve months. Her contract as a substitute educator terminated as soon as Nonjeke received her permanent appointment as head of appointment. He had not approved the ‘assumption of duty” of the Applicant as the form of the Applicant was incomplete. He acknowledged that he was aware that that the Applicant was working as an educator at the School and that he had undertaken to assist her but this was predicated on her having been issued an offer of employment by the Respondent. No proof of such offer was ever submitted to him.

56. While Sobahle did not have personal knowledge of the Applicant’s case he confirmed the version of Zimema that the “assumption of duty” needs to be accompanied and supported by an offer of employment or appointment letter.

57. Having regard to the reliability and credibility of the witnesses I accept that the witnesses for the Respondent were credible and to a large extent reliable. In this regard, and in so far as the reliability of the evidence is concerned Zimema acknowledged that he could not recall the content of meetings he had had with the Applicant. He freely made concessions in this regard. On the other hand, both the Applicant and Tambo did not disclose during their evidence that another educator had been appointed to take the place of Nonjeke after she had been promoted. This detracts from their credibility and reliability as witnesses.

58. Having regard to the evidence, the uncontested evidence is that:

58.1. The Applicant worked at the School during the period April-August 2018;

58.2. The Applicant had worked as a substitutet for Nonjeke during the period 1 April 2017 until 31 March 2018 whilst Nonjeke acted as head of department;

58.3. Nonjeke was appointed in a permanent capacity as head of department in April 2018;

58.4. In April 2018 the post previously occupied by Nonjeke ought to have been declared vacant by the School principal;

58.5. In April 2018 Tambo completed an “assumption of duty” form recording that the Applicant would work as a temporary educator as a substitute for Nonjeke, who had by then already been promoted;

58.6. The Applicant did not receive an offer of employment or appointment letter for the relevant period; and

58.7. Another educator was appointed as a replacement for Nonjeke. The version of the Applicant is that she did not take up her appointment whereas it was the version of the Respondent that she was prevented from doing so.

59. The evidence of Tambo was that she had submitted a request for the Applicant to be appointed permanently in accordance with the provisions of collective agreement 1/2006 of the KwaZulu-Natal Chamber of the ELRC. No documentary evidence in support of this assertion was, however, submitted. The collective agreement includes the following provision: “Temporary educators who have served the department continuously for 12 months or more in one of more substantive posts should be made permanent, subject to the recommendation of the School Governing Body.”

60. This provision is of no assistance to the Applicant as:

60.1. Primarily, no proof of her appointment was submitted;

60.2. No proof of her having occupied substantive posts for a period of twelve months was submitted; and

60.3. No proof that her appointment in April 2018 was supported by the School governing body was submitted.

61. While Tambo had referred to the resolution of 2006, in his closing argument the representative of the Applicant had referred to collective agreement 4/2018. This agreement is, however, of no assistance to the Applicant as:

61.1. The agreement only came in effect on 25 September 2018, which is after the period in respect of which the Applicant claims she is due her remuneration;

61.2. The collective agreement includes the following provision (which is omitted from the closing argument 🙂 “It (the agreement) does not apply to temporary educators who substitute permanent educators who are, for whatever reason, absent from their posts.” During the twelve months preceding April 2018 the Applicant was substituting for Nonjeke, a permanent educator, who was absent from her post as she was acting as head of department.

62. In light of the above, I find that the Applicant has failed to establish that she was appointed as an educator by the Respondent for the period April-August 2018. This appointment is a condition precedent for her claim for remuneration. The reason for her having not been appointed emerged during the cross-examination of Zimema; namely that the Respondent had, by way of the departmental task team, appointed another educator as the replacement for Nonjeke after she had been promoted. As already indicated this appointment was, for obvious reasons, not disclosed by the Applicant or Tambo during their evidence.

63. In light of the above, I find that the Applicant has failed to establish that during the relevant period she was an employee of the Respondent and entitled to the payment of remuneration.

AWARD

64. The application is dismissed.

J Kirby
Arbitrator
22 March 2020
PSES438-19/20 KZN