IN THE EDUCATION LABOUR RELATIONS COUNCIL

HEARD VIRTUALLY

Case No: ELRC515-24/25FS

In the matter between

SAOU obo RENIER LOUW Applicant

and

THE DEPARTMENT OF EDUCATION: FREE STATE Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 6 June 2025

SUMMARY: Section 186(1)(a) – Labour Relations Act – Unfair Dismissal – Procedural and substantive fairness

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a) of the Labour Relations Act 66, 1995, (the LRA). The Applicant, Mr Renier Louw, was represented by Ms Hester Human, an official of SAOU and the Respondent, Department of Education: Free State, was represented by Mr Vuyisile Gubuza, the Manager: Dispute Resolution. The arbitration was heard on 8 May 2025.
2. The proceedings were recorded electronically.
3. The Applicant requested to submit written closing arguments by no later than 15 May 2025 and the Respondent argued orally on the day of the arbitration. The Applicant’s closing arguments were received on 15 May 2025.

ISSUE TO BE DECIDED

4. I am required to determine whether the Applicant’s dismissal by the Respondent was procedurally and substantively unfair, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

5. The Applicant was appointed by the Respondent as a Post Level 1 Educator from 1 January 2024, earning R318 648 per annum. He was dismissed on 22 August 2024, on the basis that he was not on the Head Office database for Educators holding the Post Graduate Certificate in Education (PGCE) and further that the provincial department of the Free State does not appoint PGCE Educators in Primary Schools.
6. The Applicant is challenging procedural and substantive fairness of the dismissal and as a remedy, he is seeking reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT
Respondent’s Version

7. The Respondent’s version was led through the evidence of 1 witness and a bundle of documents, the summary of which is outlined below: –
8. Mr Makalo Tsimile testified that the Applicant assumed duty on 27 March 2024, on the date on which his appointment letter was signed by the Director because it is unprocedural to assume duty before receiving the appointment letter. The Director also signed the contract of employment on 27 March 2024 as the employer party to the contract. The Applicant signed the contract on 18 April 2024.
9. On 1 August 2024 Mr Tsimile declined the recommendation for the appointment of the Applicant at Truida Kestell Primary School. He is the Acting Deputy Director, and is the Head of Human Resources (HR) in the District. The reasons provided in the recommendation are that the Applicant is not on the database of Head Office for PGCE, no Educator with PGCE qualifies to be appointed at Primary Schools.
10. All Educators must appear on the database at Head Office. The province has two databases for Educators, the first being the database held by the District office for Educators and the PGCE Educator database held by Head Office. The HR Administration unit does the verification of PGCE Educators. No Educator must be appointed if one is not on the database.
11. The District appointed the Applicant because they were under the impression that he is on the database. The District received all documents and they are tasked with all Post Level 1 Educator and Departmental Head appointments. The Applicant was a Post Level 1 Educator. The Director was under the impression that the Applicant is on the database. It was discovered that he was not on the database and the information from the school was misleading. The District has all other Educators with other qualifications other than PGCE. Verification is done by Head Office.
12. The reason Head Office keeps the database for PGCE Educators is to assist the department to assist people with other qualifications other than Education qualifications. PGCE is a post-graduate diploma to qualify one as an Educator. It assists one to educate at a correct level. In terms of their Head Office the Applicant is not qualified to teach at a primary school.
13. After they interacted with the matter as the District, an offer was made to the Applicant to start his appointment at Truida Kestell Primary School and the Applicant rejected the offer, stating that he was no longer interested as he got an offer at one of the private schools. The offer was made outside the ELRC processes.
14. Under cross-examination Mr Tsimile said the Applicant could have started his appointment in January 2024, in terms of the letter of appointment as it is the Respondent’s standard way of drafting contracts. He also confirmed that it is not the first time the District appoints a PGCE Educator. He stated that it is unprocedural to commence employment without an appointment letter and the Applicant could only assume duty on 27 March 2024 and the date of 1 January 2024 is in a standard document. The Principal has a duty to inform an employee to assume duty after receipt of the letter of appointment.
15. Mr Tsimile also added that should the department discover that one does not qualify they would not be appointed. He stated that he could not say he was dismissed but was wrongly appointed based on misrepresentation of documentation. The misrepresentation was made by the school on the fact that he was not on the database of PGCE Educators, the custodian of which is the Head Office. The offer made to the Applicant was that he be put on the database and be appointed at the same school and he rejected the offer.
16. The Respondent argued that in this matter the school made an attempt to trick the Respondent and in their verification they found incorrect measures taken and had to terminate the appointment. There is no prejudice but they corrected the wrong and stuck to provincial policies. The database existed for more than 20 years where the Respondent stopped advertising positions. School adverts are confined to their localities and Principals used favoritism. In order to have fair process all unemployed Educators must register with the department. The department encourages Principals to consult the database and select 3 Educators from which the best will be selected and appoint qualifying Educators. The system is fair.
17. The department has been consistently undermined by Principals and does not allow nepotism and favoritism and Principals cannot select their friends. Principals undermine the process by bringing their people by putting a person on the database and skip people who have been on the database for a long time. PGCE Educators study the qualifications of their choice and do PGCE and are not appropriately qualified for Primary Schools. The database at Head Office is there to verify if one is appropriately qualified to teach. In this matter the Principal of Truida Kestell Primary School undermined the District by registering the Applicant on the database and recommended his appointment in the same month and did not register him on the PGCE database.
18. The appointment is irregular and in terms of the appointment letter the Respondent still had to verify and they found that he was not on the database. The Principal was wrong in recommending the Applicant and misled the Respondent that he was on the database and the Respondent had no option but to terminate an irregular appointment.

Applicant’s Version

19. The Applicant’s version was led through the Applicant’s own testimony, and a bundle of documents, summarised below:
20. Mr Renier Louw (the Applicant) testified that he holds a Bachelors degree in Human Movement Sciences & Psychology from North West University and a PGCE from UNISA. He is not aware of the provisions on employment regarding his qualifications. From 1 January 2024 to 23 August 2024 he worked for the Department of Education. From 24 August 2024 to 31 December 2024 he was employed by the SGB of Truida Kestell Primary School. The Director of Thabo Mofutsanyana District signed his appointment letter. The Headmaster gave him a verbal instruction to commence work and he received no remuneration.
21. With regards to the offer made it was done in a meeting held by the parties last year and was communicated verbally, a while after the termination letter. He received an offer to be on the SMT and has a teaching post, he was uncertain if he would be re-appointed. He started in the private school on 1 January 2025. When he received the termination letter he looked for other employment and he accepted the offer from the private school.
22. The Applicant was employed by the Gauteng Department of Education for 8 years and never had issues. He thought there would be nothing wrong in the Free State. He did not influence submission of documents and they were sent about 4-5 December 2023 and sent for the database. Before 22 August 2024 he received no communication from the Respondent and there were no complaints about him and was never charged for any transgression.
23. Under cross-examination the Applicant confirmed that he taught Natural Sciences, Life Skills, Afrikaans and English at intermediate and senior phase. He stated that he has 14 years of teaching experience and one of the subjects/modules is Teaching Practice and he taught Natural Science in Grades 4 and 5. He worked in Johannesburg before and he applied in the Free State. He submitted documents on 4 December 2023 whilst he was still in Gauteng.
24. He confirmed that he started on 1 January 2024 and on the day had a meeting with the Principal in Bethlehem and school opened two weeks later. He had numerous meetings with the Principal during the holidays. No formal meetings as the Principal wanted to see him and they live close by in Bethlehem. He did not start work but had an informal meeting with the Principal and was told to report on 14 January 2024. They met to confirm his appointment and the Principal was about to put him on the system to apply and get a job through Truida Kestell.
25. The Applicant was instructed to commence by the SGB Chairperson and the Principal. Between January and April 2024 they were waiting for the appointment letter which was received in April 2024 and he was remunerated by the SGB. His appointment letter was backdated to January 2024.
26. The Applicant also indicated that he understands that the Free State province does not advertise Post Level 1 Educator positions, schools are directed to the database, select there and recommend to the department.
27. In their arguments the Applicant presented the following:

• Public Service Commission definition of an irregular appointment means instances where the action taken/not taken that is not in accordance with the regulatory framework.
  a. Remedies available to the Executive Authority (EA) include:
  i. If employee agrees to resign, the irregularity will be resolved;
  ii. Employee can be transferred or demoted;
  iii. The department should not commit another irregularity e.g transfer to a post that is not approved on the structure;
  iv. Agree on a ‘golden handshake’ without first consulting the National Treasury and DPSA since there is currently no regulatory framework governing such agreements.
  b. If the affected person does not agree to resign or be transferred to an available post, the department must make an application to the Labour Court to declare the appointment null and void, the application must be made without delay. Khumalo v MEC for Education (2014) 35 ILJ 613 (CC).
  c. Principle of proportionality to balance competing interests as held in S v Makwanyane and another (CCT3/94) [1995] ZACC 3.
  d. Accountability for act/omission caused by the department. Actions to be taken against employees that contributed towards the irregular appointment and the audi alterem partem principles to apply in this regard.

19. The Applicant disagrees that the appointment was irregular and the Principal did not testify into misleading the Respondent and the Applicant is not responsible for the alleged irregularity. This begs the question as to why was re-employment offered to the Applicant. In Dr D.C.Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC) the Applicant argues that in this matter the Applicant secured alternative employment before the offer was made so the circumstances are different to the Dr Kemp matter where the offer of reinstatement was made in the first month after dismissal.

ANALYSIS OF EVIDENCE AND ARGUMENT

29. Section 185 of the LRA states that every employee has a right not to be unfairly dismissed and subjected to unfair labour practice, giving effect to section 23 of the Constitution of the Republic of South Africa.
30. Section 192 of the LRA provides as follows: In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, per subsection 1. Subsection 2 states that if the existence of a dismissal is established, the employer must prove that the dismissal is fair.
31. Section 188 of the LRA provides as follows: -“1. A dismissal that is not automatically unfair, is unfair if the employer fails to prove _
    (a)that the reason for the dismissal is a fair reason –
    (i)related to the employee’s conduct or capacity; or
    (ii) based on the employer’s operational requirements; and
    (b) That the dismissal was effected in accordance with a fair procedure”.
32. In this matter, dismissal is common cause, I shall consider the fairness thereof with due regard to Schedule 8 of the LRA.
33. Schedule 8(2) of the LRA provides that this Act recognises three grounds on which a termination of employment might be legitimate. These are: the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business.
34. Schedule 8(4) provides that where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business.
35. In this matter it is common cause that the Applicant received a letter of appointment on 27 March 2024, signed by the Director of Thabo Mofutsanyana District. The letter provided that the Applicant shall report for duty on 1 January 2024 or as soon as possible thereafter. The Applicant commenced employment on 1 January 2024 and ‘met’ the Principal as they live in close proximity in Bethlehem and he attended school around 15 January 2024 when schools opened. He was advised by the Headmaster to start on the dates advised. The first paragraph of the appointment letter reads as follows:
    “I have pleasure in informing you that approval has been granted in terms of section 6(1) of the Employment of Educators Act, 1998 for your permanent appointment on 12 months’ probation in the post of Educator (PL1) at Truida Kestell Primary School.”
36. The Respondent disputes the commencement date, stating that they signed the appointment letter in March 2024, and that should then be the commencement date. The letter sent signed on 27 March 2024 provides the date of commencement or as soon as possible thereafter. It therefore was possible to commence working on 15 January 2025 when the schools opened as the Respondent backdated the appointment to 1 January 2024 and the letter signed in March 2024 confirms that the Applicant could have assumed duty on 1 January 2024, which the Applicant did.
37. The letter of appointment conforms to the requirements in Phera v ELRC and others [2012] 33 ILJ 2839 (LAC) where the LAC held that a formal written authorisation is essential for establishing an employment relationship in the context of education and that an employee assuming duties without such authorisation does not automatically trigger the jurisdiction of a bargaining council. In this matter the backdated letter of appointment confirms when the employment relationship started. It cannot be disputed on the basis of it being a standard letter.
38. The delegated authority that signed the appointment letter as well as the contract of employment is that of the Director of Thabo Mofutsanyana District. These are the founding documents of the employment relationship that was entered into between the two parties.
39. Section 6(3) (a)(b)of the Employment of Educators Act (EEA) which provides as follows:
    a. “Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.

b. In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to:
i. ……….
ii. ……….
iii. ……….
iv. ……….
v. Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.”

40. Section 6(3)(f) of the EEA provides that:
    “(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.
    (g) If the Head of Department declines a recommendation he or she must–
    (i) consider all the applications submitted for that post;
    (ii) apply all the requirements in paragraph (b) (i) to (iv); and
    (iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.
41. Section 6(1) referred to in the appointment letter provides as follows: –
    “Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator–
    (a) In the service of the Department of Basic Education shall be made by the Director-General; or
    (b) In the service of a provincial department of education shall be made by the Head of Department.
42. The Respondent did not play the role required by section 6(3)(f) of the EEA, to reconsider the recommendations by the SGB. The letter of appointment at Clause 5 further states that the Applicant’s appointment is subject to the verification of his qualifications and an acknowledgement of receipt of the Code of Conduct on assumption of duty. It is common cause that the Applicant holds a PGCE and his degree from North West University. These qualifications are not placed in dispute. The only dispute on the Respondent’s side is that the Applicant was not on the database for PGCE as per correspondence from HRA.
43. It is not clear where this regulation comes from, whether it is in the form of a collective agreement or HR or recruitment and selection policies of the Respondent, but it is not disputed by the Applicant that there is a specific database kept by Head Office for PGCE qualified Educators and another database for Educators held by the District. It is also not disputed by the Applicant that the approach to recruitment entails selection from the database. It is this process that did not happen with the Applicant. It seems the Principal of the school managed the recruitment process and sent the relevant documentation for approval by the district. The only suspensive condition in the letter of appointment is verification of qualifications, where there are no issues found in respect of the Applicant’s qualifications, only that the Applicant is not on the database.
44. The District Director has delegated powers in terms of section 6(3)(f) of the EEA which in this regard he should have applied in considering the recruitment process that involved the Applicant. It is not clear whether there were other Applicants that may have been prejudiced by the Applicant’s appointment as no evidence to that effect was presented.
45. Further the Respondent made an offer of re-employment to the Applicant on the same terms and conditions. Such an offer was rejected by the Applicant on the basis that the Applicant had already secured alternative employment in a private school. On this ground I find that the Respondent had therefore no valid reason to terminate the employment relationship in the first place. The approval for the appointment was granted as alluded to in the letter of appointment, by the delegated authority exercising its powers.
46. The actions of the Principal could not be confirmed in his absence in the arbitration but on the face of it, the District received all relevant information that enabled them to take a decision to appoint the Applicant. The deviation in respect of the issue of the database is a matter that could have been resolved as the requirement for appointments is for substantial compliance with the requirements set out in different regulations governing employment of educators.
47. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02/15349 [2006] JOL 17802 (W) it was held that:
    “The question then arose whether the multitude of the applicable laws and regulations which prescribed the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the first question arose whether exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that was called for was substantial compliance.
48. It is my finding that the fact that the position was offered again to the Applicant confirmed that the Respondent erred in terminating the employment of the Applicant. The argument by the Respondent that the Principal of Truida Kestell undermined the District in bringing the Applicant cannot be sustained as they did not show who was prejudiced, other than reference to educators on the database who are either on the queue. The offer of re-employment meant that the position had not been filled. I find that the reason/s provided for the termination of the Applicant’s employment rendered the decision to be substantively unfair.
49. In respect of procedural fairness the Applicant raised that he was not consulted. As can be seen from the evidence, the Applicant received a letter regarding declining his appointment with the letter from HRA attached to it. There was indeed no engagement with the District to explore other ways to deal with the matter. It is also common cause that the Applicant applied for a position and had no influence on the decision, other than the allegation that the Principal ‘tricked’ the department in the submission of the Applicant’s documents. I find that there was no procedure followed to engage the Applicant regarding the new developments around his appointment. I therefore find that the dismissal was procedurally unfair.
50. On the remedy, Section 193(1)(a) provides that the Labour Court or arbitrator may order the employer to reinstate the employee from any date not earlier than the date of dismissal. In this matter the Applicant prayed for compensation. I have also considered the fact that the Applicant was offered the position and could not accept the offer because he had already accepted an offer from a private school. The Applicant also stated that after 22 August 2024 he remained at Truida Kestell Primary School, employed by the SGB and it seems there was no loss of income after the dismissal. The Applicant, in motivating declining the Respondent’s offer also alluded to uncertainty, given the experience surrounding his appointment and termination thereof.
51. Based on the above, I find that compensation equivalent to three (3) months’s remuneration would be just and fair to both parties. The Applicant served less than one year and that he had an opportunity to be re-employed, based on his reasons he declined the offer. It is my considered view that the remedy is consistent with the finding of procedural and substantive fairness. The amount due to the Applicant is calculated as follows: R318 648.00 per annum/12 months = R26 387.33 per month X 3 months = R79 161.99.

AWARD

52. The dismissal of the Applicant, Renier Louw, by the Respondent, Department of Education – Free State is procedurally and substantively unfair.
53. The Respondent, Department of Education – Free State, is ordered to pay compensation to the Applicant, Renier Louw, equivalent to three months’ remuneration, amounting to R79 161.99, as calculated in paragraph 51 above.
54. The Respondent, Department of Education – Free State, is ordered to pay the amount in paragraph 53 above, to the Applicant, Renier Louw, by no later than 31 July 2025.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL