28 October 2024 – ELRC249-24/25 KZN

IN THE ELRC ARBITRATION

BETWEEN:

NDUMISO KNOWLEDGE MAPHUMULO “the Applicant”

and

DEPARTMENT OF EDUCATION – KWAZULU NATAL “the Respondent”

ARBITRATION AWARD

Case Number: ELRC249-24/25 KZN

Last date of the ruling: 17 October 2024

Date of the ruling: 28 October 2024

ELRC Arbitrator: Lindiwe Makhanya

DETAILS OF HEARING AND REPRESENTATION

This arbitration hearing commenced on 12 August 2024, 09 September 2024 and was finalised on 17 October 2024. It was held virtually under the auspices of the Education Labour Relations Council (“the council”)- ELRC .
The Applicant, Mr. Ndumiso Maphumulo, represented himself and the Respondent, Department of Education-KwaZulu Natal, was represented by Mr. P.K.Appalraju from the Employee Relations Department.

PRELIMINARY ISSUES, JURISDICTION AND ISSUES TO BE DECIDED

I have to decide whether the Applicant is entitled to the outstanding statutory payment in terms of the BCEA, Non payment of salary.
The Applicant sought to be paid the outstanding salary of five months, from February 2022 to June 2022.

BACKGROUND TO THE DISPUTE

The first Respondent is the Department of Education located in KwaZulu Natal. The Applicant commenced his employment with the Respondent on 22 February 2022 as an Educator, P1 at Nkonka High School.The Applicant alleged that he was not paid his salary from February 2022 to June 2022.

SURVEY OF EVIDENCE AND ARGUMENT

The Respondent presented a bundle of documents marked “B,” while the Applicant presented a bundle of documents marked “A.” Both parties submitted their oral closing arguments on 17 October 2024.

THE APPLICANT’ CASE

Mr. Ndumiso Knowledge Maphumulo testified that he was called to a meeting by Mr. Sibiya, the District Director, where Mr. Wood was also present. During the meeting, Mr. Sibiya informed him that there was a need for physics teachers. The next day, on 21 February 2022, Mr. Sibiya instructed him to go to the district office to collect his appointment letter.
On 22 February 2022, he went to Nkonka High School, met with the Principal, and handed him the appointment letter. He had informed Mr. Sibiya that he did not have a Postgraduate Certificate in Education (PGCE) and South African Council for Educators (SACE) certificates. Mr. Sibiya advised him that the position was critical, and as soon as he received his salary in February 2022, he needed to pay the outstanding fees at the university so he could obtain his certificate. Mr. Sibiya also said his appointment would be subject to him submitting all the required documents before his probation ended.
He was not paid at the end of February 2022. After some time, he was asked to provide proof that he had completed his studies and was also asked for his PGCE certificate, but he informed them that he still owed the university.
He submitted leave forms for the period from 19 April 2022 to 19 May 2022. He was later contacted by the HR department and asked to complete the leave form correctly. When he returned to work on 20 May 2022 with his PGCE certificate, the Principal informed him that his position had been filled.
He later attended a meeting called by Mr. Sibiya, where Mr. Mpisi, Mr. Ndlovu, and Mr. Appalraju were also present. After the discussions, Mr. Sibiya informed him not to return to Nkonka High School, as he would find another school for him.
In June 2022, he received a call from another Circuit Manager who informed him to report for duty at Mayiyane High School. He was owed salary from February to June 2022.
Under cross-examination,he admitted that he worked for 6 days in February 2022 and for the full month of March 2022. In April 2022, he worked for 18 days, as he took annual leave starting on 19 April 2022. When confronted with the allegation of not rendering services after 5 April 2022, he did not respond.
He admitted that he did not submit his PGCE certificate and SACE certificate when he assumed duty at Nkonka High School.
He submitted his leave form to an intern. Later, the HR personnel contacted him to sign the form, as his signature was missing. Upon reviewing the form, he discovered that someone else had signed it. He was then given a new form to complete. However, when it was brought to his attention that there was no record of his annual leave on the Persal system, he failed to provide a response.
When it was put to him that he had failed to comply with the necessary requirements to receive a permanent contract of employment, he responded that he had never seen such a contract. He was then directed to read clause 2 of his appointment letter, which states: “Your appointment is subject to you providing proof of your professional teaching qualification and registration with the South African Council for Educators to the Principal upon assumption of duty”. He admitted that he had not complied with this clause. He was unable to obtain the certificates due to not receiving payment.
He insisted that he had marked the scripts, though he admitted not submitting the marks as he left the physics scripts on his desk. He claimed that after returning with the certificates, he was told to wait at home for further instructions, but could not confirm the existence of a policy allowing educators to be paid while staying at home.
There was no re- examination.

THE RESPONDENT’S CASE

Mr. Ronald Charles Wood testified that, as the Chief Education Specialist, he had facilitated the Applicant’s appointment at Nkonka High School. After the Applicant assumed duty, the Principal submitted the Applicant’s assumption of duty forms; however, the forms could not be processed because the PGCE and SACE certificates were not attached.
In a meeting with the Applicant, he was advised that to finalise his appointment, he needed to submit the required certificates, as he had been placed in a permanent position, but the Applicant did not comply.
When schools reopened in April 2022, the Principal informed him that the Applicant had not returned to the school, and the script had not been submitted. The Applicant could not be located, and by mid-April 2022, the Principal reported finding the unmarked scripts on the school premises, stating that the Applicant had refused to mark them.
After the Applicant failed to return, another educator was transferred to the school, and while the District Manager informed the Applicant that he would be placed at another school, he denied telling the Applicant to stay at home with pay or receiving the Applicant’s leave form for processing.
The Applicant had served as a temporary educator at two other schools, where his payment was approved. However, at Nkonka High School, he was required to submit the necessary certificates, as the position was permanent. Due to non-compliance, his appointment could not be processed on the Persal system.
During cross-examination, he recalled that Sibiya had informed the Applicant that HR could not process his details due to missing certificates. He emphasized that full documentation was required for permanent employment and that the Applicant was advised to submit the certificates within one to two weeks after receiving his appointment letter.
He added that they had expected the Applicant to comply, and if he had, he would have been paid. When asked about payment for the Applicant’s work from February 2022 to March 2022, he responded that payment would have depended on the submission of the script and marks.
During re-examination, he stated that it was the responsibility of the Educator to submit the required documents in order to be paid and have the appointment finalised. He added that the Applicant was not entitled to payment, as he had not submitted the marked scripts and had failed to complete his work, resulting in the learners not receiving their results.
Mr. Creswell Lindani Mpisi, the Departmental Head of Science and Maths at Nkonka High School, testified that the Applicant assumed duty on 22 February 2022 without submitting his teaching qualifications and SACE certificate. The Applicant partially fulfilled his teaching duties, but failed to assess, mark scripts, and record and capture marks for physical science in term one.
The Applicant did not return to the school on 5 April 2022, refused to hand over the scripts, and claimed non-payment as the reason. The unmarked scripts were later found in the staff room and marked by his replacement.
The Applicant also did not report his absence or notify his supervisor of taking leave, causing unrest among learners seeking their marks.
During cross-examination, he stated that he had been informed by Mr. Ndlovu, who had spoken to the Applicant, that the Applicant refused to provide the marks for the scripts, claiming he had not been paid his salary.
There was no re- examination.

ANALYSIS OF EVIDENCE AND ARGUMENT

I have taken note of Clause 69.6 of the Education Labour Relations Council Constitution (ELRC) which states that: Despite Clause 69.5 and Educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act, the Employment of Educators Act, Personnel Administration Measures or any regulations or subordintate legislation promulgated by the Minister of Basic Education or MEC for the Province where an educator is employed as it relates to the condition of service, a collective agreement and a contract of employment.
The applicant bears the onus to prove that the employer failed to pay his outstanding salary.
It was common cause that the Applicant did not comply with the requirements to have his details captured on Persal system as he did not submit the PGCE and SACE certificates. It was also common cause that the Applicant reported for duty from 22 February 2022 until 25 March 2022.
The Applicant did not comply with the mandatory requirements to have his details entered on the Persal system, as he failed to submit his PGCE and SACE certificates. He reported for duty from 22 February 2022 to 25 March 2022, during which he claimed eligibility for his salary, having allegedly completed certain tasks. The Respondent, however, argued that due to his partial fulfillment of duties, he was not entitled to payment; specifically that he failed to assess, mark scripts, and capture grades for Physical Science in Term 1.
The terms of the Applicant’s appointment were conditional on the submission of the PGCE and SACE certificates, as outlined in clause 2 of the appointment letter. His omission to provide these documents prevented his employment processing on the Persal system, directly impacting his eligibility for salary payments. Despite being aware of these prerequisites, he did not provide the required documentation upon assuming duty in February 2022.
The Applicant asserted that he worked from 22 February 2022 through March 2022 and part of April 2022, before going on leave. However, the Respondent’s testimony indicates that he failed to return to work after 5 April 2022. The Respondent stated that attempts to retrieve learner scripts from the Applicant were unsuccessful, leading to the marking of these scripts by his replacement. This absence, coupled with the unmarked learner scripts, suggested a failure to fulfill his obligations.
The Applicant did not contest his failure to submit the marked learner scripts upon reopening on 5 April 2022, supporting the conclusion that he had not returned to work. Thus, while the Applicant performed some teaching duties between 22 February 2022 and 25 March 2022, he did not complete essential tasks, such as marking and submitting Physical Science scripts, which were integral to his role.
The Respondent’s witness, Mr. Wood, highlighted that the Applicant’s non-compliance with the documentation requirements impeded the processing of his salary. This documentation issue was crucial, as the Applicant’s appointment could not be finalised, meaning his eligibility for payment remained unprocessed. Moreover, his refusal to hand over the learner scripts upon request caused disruptions among learners awaiting their results. The Applicant alleged that after his leave in May 2022, he was instructed to remain home, and he claimed an outstanding salary from February to June 2022. However, the Respondent countered that there was no policy allowing paid leave in such a circumstance, especially as no leave form was recorded on the Persal system for 19 April to 20 May 2022.
The Applicant’s stance is that his work from February to March 2022 justifies salary payment. However, Mr. Wood testified that even if the Applicant had fulfilled the documentation requirements, payment would still hinge on completing assigned tasks, such as marking learner scripts. Former Chief Justice Mogoeng Mogoeng emphasized the responsibility of decision-makers to fully complete their work, particularly in a legal or administrative context, during his tenure at the Constitutional Court. One significant judgment where this principle was highlighted was SACCAWU v I & J Ltd2000 (3) SA 705 (CC), in which Mogoeng underscored that individuals in positions of authority have a duty to ensure decisions are properly finalised. His broader judicial philosophy often stressed the importance of accountability and following through on tasks as part of the effective functioning of public administration.
The Respondent asserted that the Applicant’s refusal to mark scripts prevented learners from receiving their results, leading to school disruption. Nothing prohibited the Applicant from marking the scripts, submitting them, and subsequently addressing salary issues. Consequently, the Applicant cannot claim the outstanding salary, given his abandonment of duties by failing to mark the scripts.
Based on the evidence presented, the Applicant is ineligible for salary payment for the period in question. His non-compliance with core employment conditions, specifically the failure to submit PGCE and SACE certificates, and his failure to complete essential responsibilities (marking scripts) render his claim for salary, from February 2022 to June 2022, unsupported.
Thus, I find that the Applicant is not entitled to salary payment, as he did not fulfill the required duties.
I, therefore, make the following award: