In the Matter between

Helge Jansen – Applicant Party

And

Department of Education

Case Number: PSES627-09/10KZN

Arbitration Award

DATE OF ARBITRATION: 14TH May 2010

DATE OF AWARD: 28TH MAY 2010

CASE NO: PSES627=09/10KZN

ARBITRATOR: CHARLES OAKES

Details of Hearing and Representation

This is an award of an arbitration held on the 14th May 2010 at Dokkies in Durban. The applicant represented himself whilst the respondent was represented by Mr Sibisi from the Department of Education.

Issue to be decided

I have to decide whether the termination of the applicant’s contract was fair.

Background to Dispute

The respondent is a government department in charge of the appointment and termination/dismissal of educators. The applicant was employed as an educator by the department. His contract was terminated on the 31st January 2010. The respondent alleges that it was as a result of his contract of employment coming to an end. The applicant alleged that he was employed in a substantive post which was temporary in nature and was 12 months in duration.

Survey of Evidence

The respondent who was represented by Mr. Sibisi did not call any witnesses in the present matter. Mr Sibisi elected to address me from the bar. The following formed the basis of the respondent’s case:

The applicant was employed as an Unprotected Temporary Educator. He was given a letter of employment which contains the terms and conditions of his employment. These letters of employment are given to all temporary educators who are contracted by the respondent. In terms of paragraph 3 of the letter of employment the employment contract comes to an end on the day mentioned in the contract or on 30 days notice given by either party. The applicant was given 30 days notice by the respondent. His employment contract ran from the 18th May 2009 to the 31 December 2009. In the case of the applicant his contract had run its course and had come to an end as a result of an affluxion of time. The applicant was then free to offer his services to Brettenwood High School where he was employed. The department was not obliged to find him employment. He was obligated to seek employment once his contract had come to an end.

The applicant Helge Olle Janssen was the only witness to testify and testified as follows:

He was employed on the 18th May 2009 as a Life Science Educator teaching grade 10 to 12. When the post was advertised there was no indication that the appointment would be for an Unprotected Temporary Educator. There was no mention of the post being an Unprotected Temporary Educator post. When he applied he was made to believe that the post was for a temporary teacher in a substantive post. Mr Dlamini informed him that the school has a permanent teacher post vacancy and that he would be filling a substantive post. He does not remember signing a contract of employment. He remembers signing standardized forms which are necessary before taking up a post at the Department of Education. He does not remember having sight of a letter of employment. His understanding was that he would be working on a twelve month probationary period. He only became aware that his services were being terminated on the 04th January 2010 when he received an email from the Mr Kidian. He was not told prior to the school closing in December 2009 that his services would no longer be required in January 2010. The conditions at the school where he taught were untenable for him. His life was threatened and as a result he suffered from stress which resulted in him seeking medical help. His doctor put him off work from the 22nd October until the 11th December 2009. He furnished the school with his medical certificates. He did not return to work on the 11th December 2009 as he wanted assurances from the Department regarding his safety. He had written two letters to the department but received no relies. Instead he received an email informing him that his services were terminated on the 31stDecember 2009.

Under cross-examination he testified as follows:

It is the norm for the department to advertise posts in a bulletin. The post he applied for was advertised by Brettenwood High School in a local newspaper. He was made to complete a Z83 form when he applied. He was for technical reasons made to work in a deputy principle post vacated by one Mr. Barkhuizen. He was employed as a temporary teacher in a substantive post. He was employed from the 18 May 2009 to the 18 May 2010. He went to the department of education to get his appointment letter, however he was told that it was classified information. He would like to be compensated for his sudden loss of salary.

Analysis of Evidence

Section 192 of the Labour Relations Act states the following:

“(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”

It is common cause in the present matter that the employee’s service was terminated by the respondent party. The crux of the present dispute revolves around whether the applicant was employed as an Unprotected Temporary Educator (hereinafter referred to as a UTE) or whether he was employed as a temporary educator in a substantive post. The employer alleges that he (applicant) was employed as a UTE. The employer therefore is saddled with proving that the applicant was employed as a UTE and was terminated accordingly.

I deem it prudent at this point to pause to examine exactly what it means to be employed as a UTE as opposed to a temporary employee in a substantive post.

Perhaps this is most aptly described in the Personnel Administrative Measures, Chapter B, 2.1 (e) (hereinafter referred to as PAM) where it states the following:

“The appointment of an educator can be in a permanent or temporary capacity. If the appointment is in a temporary capacity, it is for a fixed period. Appointment in a temporary capacity can either be to a substantive vacant post or as a substitute for another educator who is temporarily not occupying his or her post.”

The department of education in response to many queries regarding the status of UTE’s issued the following press release:

“This term was coined in 1998 to refer to educators who were employed after 01/07/1996. These educators had no claim to the posts they were occupying as the posts were reserved for the redeployment of excess educators. The term UTE was only applicable during the Rationalization and Redeployment process, which terminated in 2001. This term (UTE) is by right obsolete but unfortunately it is still being used today.”

I have purposely referred to the above as essentially the department of education is the employer of all educators.

The Employment of Educators Act No: 76 of 1998, Chapter 3, Section 7 states the following:

“(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely –

(a) the ability of the candidate; and

(b) the need to redress the imbalances of the past in order to achieve broad representation.

(2) A person may be appointed under this Chapter –

(a) in a permanent capacity, whether on probation or not;

(b) in a temporary capacity for a fixed period, whether in a full-time, in a part-time or in a shared capacity; or

(c) on special contract for a fixed period or for a particular assignment, whether in a full-time or in a part-time capacity.”

A cursory examination of the above excerpts seems to support the contention of the applicant that he was not employed as a UTE in 2009. Whilst they(UTE’S) exist they do not appear to have legislative acknowledgement. The legislation defines temporary educators as either being employed in a temporary capacity for a fixed period, whether in a full-time, in a part-time or in a shared capacity or on special contract for a fixed period or for a particular assignment, whether in a full-time or in a part-time capacity.

It is further emphasised in Chapter B, 2.1(e) of PAM where it is concisely summarised as an appointment of an educator in a permanent or temporary capacity. If the appointment is in a temporary capacity, it is for a fixed period. Appointment in a temporary capacity can either be to a substantive vacant post or as a substitute for another educator who is temporarily not occupying his or her post.

In the present matter the department was unable to place any substantial evidence before me proving that the applicant was an unprotected temporary educator. The person who could have assisted in clarifying this was not called as a witness i.e. the principle, who was part of the discussion surrounding the appointment of the applicant. The respondent further failed to provide any documentary evidence substantiating their argument that he (applicant) had signed a letter of employment in this regard. The respondent’s representative could only provide what was a copy of someone else’s letter of employment as an example.

The respondent has failed to discharge the requisite onus. The version of the applicant if placed in its legal context is unchallenged. I am left with no alternative but to accept that the applicant was employed in a substantive vacant post which had a 12 month duration commencing on the 18 May 2009 and ending on the 18th May 2010. As the applicant’s employment was terminated on the 31st December 2009, he is entitled to 5 months compensation being the outstanding period of the 12 month contract and should be calculated as follows: R10 344-50 x 5 =R51 720.

Award

The Department of Education is ordered to pay Helge Olle Janssen R51 720-00 within 14 days of receiving this award.

Arbitrator: Charles Oakes