23 September 2021 – ELRC04-21/22GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)

(GAUTENG PROVINCE)

AWARD

IN THE DISPUTE BETWEEN:

BOINGOTLO LOBONE APPLICANT

and

EDUCATION DEPARTMENT GAUTENG RESPONDENT
PROVINCE

Commissioner: Amos Mthimunye
Case No. ELRC04-21/22GP
Date of the Award: 23 September 2021

DETAILS OF HEARING AND REPRESENTATION
[1] This was arbitration process set-down for hearing at 09h00, on 13 September 2021, at the premises of the respondent at Johannesburg District office, 20 Golden Street, Florida, Roodepoort. The applicant, BOINGOTLO LEBONE was present and represented herself, while the respondent, EDUCATION DEPARTMENT GAUTENG PROVINCE was represented by Ms Valerie Mnisi (official).
[2] Both parties handed in bundles of documents which were accepted and marked “A” and “R”.
[3] The proceedings were digitally recorded and handwritten notes were also taken.

BACKGROUND TO THE DISPUTE
[4] The applicant was employed by the respondent as Educator. She earned a basic a salary of R14 514.44 per month. She was engaged on 15 March 2021, and dismissed on 26 March 2021 for lack of qualifications as Educator. She seeks compensation as a form of relief. The respondent is Government Department of Education.
[5] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995 (hereinafter referred to as LRA).
[6] The applicant only the procedural fairness of her dismissal.

Common cause issues
[7] The respondent had a vacant post of an Educator at Siyabusa Secondary School.
[8] The applicant found from the face book that there was a vacant post.
[9] The applicant applied through the face book for the vacant post.
[10] The respondent appointed the applicant to a vacant post.
[11] The applicant worked as an Educator at Siyabusa Secondary School for a period 15 to 26 March 2021.
[12] The respondent paid the applicant a gross salary of R9 206.72 for a period 25 to 26 March 2021.
[13] The respondent terminated the employment relationship with h applicant without a formal enquiry.
[14] The respondent’s reasons for termination of the employment relationship was because the applicant did not meet the appointment requirements as an Educator.
[15] The requisite appointment requirements as an Educator are B Ed. Degree.
[16] The Post Graduate Certificate in Education (PGCE) is a qualification to be deemed as an Educator.
[17] The applicant had not acquired PGCE at the time she got employed by the respondent.
[18] The parties have not concluded a written contract of employment.
[19] The principal of Siyabusa Secondary School, Mr Mailula phoned the applicant on 28 March 2021 to inform her that she does not qualify to be appointed as an Educator.
[20] Mr Mailula told the applicant that the respondent found that the applicant has not fully qualified as an Educator or that she has not met the appointment requirements of an Educator.

Issues in dispute
[21] There existed grounds that the applicant could be appointed as an Educator in line with South African Council of Educators.

ISSUE TO BE DECIDED
[22] Whether or not the dismissal of the applicant by the respondent was fair or unfair.
[23] Appropriate relief, if any.

SURVEY OF EVIDENCE AND ARGUMENT
The respondent’s case
[24] The respondent’s witness, Mr Matome Geoffrey Mailula testified under oath that he is employed by the respondent as the principal at Siyabusa Secondary School.
[25] The school did not have an Educator for Setswana language since 18 February 2021. The school needed an Educator to teach Setswana at the school. Information showed from the department’s database that Educators for Setswana were very scarce in the Johannesburg area.
[26] One of the Educators from Siyabusa Secondary School put a message in the face book that the school was looking for Setswana Educator. The applicant was the only person who responded to the face book message. The applicant showed interest and sent her documents to the school.
[27] He received and looked at the documents. He was excited to see that the applicant had passed Setswana 3 at the University, and that she had completed South African Council of Educators (SACE) certificate. He phoned the applicant and told her to report at the school so that she could start working immediately.
[28] On 15 March 2021 the applicant reported at the school and she started working as an Educator. He told the applicant that she was going to be employed as temporary Educator for a fixed term period from 15 March 2021 to 31 December 2021. He told the applicant that she will complete the paperwork at a later stage.
[29] On 25 March 2021 he was busy preparing the applicant’s documents together with the documents of the other Educator in order to prepare for the employment contract. He checked all the documents and found that the applicant was still registered with UNISA for PGCE in order to qualify as an Educator. He got shocked that the applicant has not qualified as an Educator.
[30] He immediately went to the staff room and called the applicant. he told the applicant that she has not qualified as an Educator. She further told her that he was going to the District Office to find out what could be done about the applicant’s circumstances. He asked the applicant why did she not inform him that she was still busy studying for PGCE and that she has not yet qualified as an Educator.
[31] He thought that since the applicant had SACE she was a qualified Educator. He did not see at first time that the applicant was not a qualified Educator. He acted out of excitement that he had found the Educator for Setswana. He did not see that the applicant had not completed the PGCE. In order for a person to qualify as an Educator he / she must have completed a B. Ed degree.
[32] On 25 March 2021 he told the applicant that she must not report for work the following day. He went to the District Office to enquire what he must do with the applicant’s case. He was told by Julia from the District Office that he must tell the applicant to stop from reporting for work at the school. On 28 March 2021 he phoned the applicant and told her that the respondent was not going to employ her as an Educator because she does not have qualifications as an Educator.
[33] He feels that the applicant misled him into believing that she was a qualified Educator. The applicant should have told him from the onset that she was still studying for the PGCE. Had the applicant told him that she was still studying for the PGCE, he would have not told her to start working at the school but rather advise her to complete her PGCE first.

The applicants’ case
[34] The applicant, Ms Boingotlo Lobone testified under oath that on 12 March 2021 she saw an advert of a post on the face book from Siyabusa Secondary School. The advert read: “Anyone with Setswana please inbox me asap.”
[35] On 12 March 2021 she began engaging with the HOD, Ms Mudau enquiring about the post. Ms Mudau requested her to send her documents. She sent her documents which consisted of her CV, Matric certificate, transcript of the undergraduate degree, certificate of completion of the undergraduate degree, Provisional SACE, and proof of registration of PGCE. Ms Mudau told her that she was going to communicate with the principal and revert back to her. Later Ms Mudau reverted back to her and told her that the principal of the school wants her to report for work on 15 March 2021. She requested Ms Mudau to tell the principal to confirm with her. The principal told her to report for work on 15 March 2021.
[36] On 15 March 2021 she reported for work. She submitted the original documents of what she sent to Ms Mudau and started working as an Educator at Siyabusa Secondary School.
[37] On 26 March 2021 the principal called her to his office and enquired whether she was a qualified Educator. She told the principal that she was still registered and studying for PGCE. The principal told her that he was going to the District Office to enquire whether she can be employed as an Educator whilst still registered and studying for PGCE.
[38] On 28 March 2021 she received a phone call from the principal informing her that she should no longer report for work at the school because the District Office had rejected her appointment as an Educator.
[39] She has incurred financial loss and suffered emotionally due to the non- diligence of the principal. She could no longer register and study for the second semester of the PGCE.
[40] She prays for compensation to the total amount of R130 629.96 which constitute s period of nine (09) months she should have been employed at as an Educator at the school for a period 01 March 2021 to 31 December 2021.
ANALYSIS OF EVIDENCE AND ARGUMENT
[41] Section 192(2) of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA) states: “if the existence of the dismissal is established, the employer must prove that the dismissal is fair. In order for a dismissal to be considered fair, it must be effected in terms of Section 188(1) & (2) of the LRA”.
[42] The respondent terminated the applicant’s services as a temporary Educator for the reasons that the applicant did not have the requisite qualifications as an Educator.
[43] The applicant did not challenge the substantive fairness of her dismissal. Therefore I will not deal with this aspect of the dismissal.
Procedural fairness
[44] The applicant challenged the procedural fairness of her dismissal. She argued that the respondent did not follow a fair procedure to terminate her services as an Educator.
[45] All the issues were common cause. The respondent did not dispute that it did not follow a fair procedure to terminate the applicant’s services. The respondent argued that the principal informed the applicant on 26 March 2021 that she must no longer report for work. The applicant conceded that the principal told her that he was going to the District Office on 26 March 2021 to enquire whether the school should continue to employ her despite the fact that she was not qualified as an Educator.
[46] The question is whether it was fair for the respondent not to hold a formal enquiry before it terminated the relationship with the applicant. My view is that the circumstances permitted that the respondent that it should immediately terminate the applicant’s services after it was found that the applicant was not a qualified Educator. The principle of fairness should apply to both parties. My view is that it would be unfair to expect the respondent to wait and hold a formal enquiry before it could terminate the applicant’s services. The circumstances permitted that the respondent that it should act immediately upon discovery that the applicant did not meet the requirements for appointment as an Educator.
[47] Since the applicant had worked two weeks, it is in my view fair to have told her on 26 or 28 March 2021 to stop reporting for work. It would be unfair to expect the respondent not to comply with the law that requires an Educator to meet certain qualifications before he / she can be employed as an Educator. It would have compromised the respondent’s compliance with the education law and / or policies to continue to keep the applicant at the school and wait to hold a formal enquiry and / or pay her a salary pending the institution of a formal enquiry.
[48] I could not find that the applicant in any way misled the respondent to believe that she was a qualified Educator. However, I agree with the testimony of the witness of the respondent, Mr Mailula that the applicant should have brought it to his attention that she has not yet qualified as an Educator but that she was still enrolled for PGCE. Evidence showed that the applicant knew and understood what was required for a person to be certified a qualified Educator. She also knew that she had not qualified as an Educator.
[50] In light of the evidence herein above I came to a conclusion that the respondent succeeded to discharge the onus of proof that the dismissal of the applicant was procedurally fair.
[51] The applicant sought compensation as a form of relief. I did not find any reason to award the applicant relief she sought for the reasons that I did not find that the respondent acted procedurally unfair to terminate her services.