In the matter between:-
SAOU obo FOURIE APPLICANT

and
DEPARTMENT OF EDUCATION- NW RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 15 October 2019

DATE OF AWARD: 31 October 2019

SUMMARY: Section 186 (2) (a) unfair labour practice

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was held on 15 October 2019 at the respondent’s district offices in Rustenburg.

2. The Applicant was represented by Mr Stephen Van den Berg, an official of SAOU. The respondent was represented by Ms B. Phuswane from its offices. The parties submitted the closing arguments on the 16th October 2019. The applicant’s bundle is marked A. The respondent elected to lead evidence. The proceedings were mechanically recorded.

BACKGROUND TO THE ISSUE

3. The Applicant had referred a dispute about unfair labour practice to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated. The parties agreed that the issue that remained in dispute was whether the applicant was entitled to be remunerated for the period 1 to12 February 2019. Therefore, the dispute is in terms of BCEA – non payment, not an unfair labour practice.

ISSUE TO BE DECIDED
4. As indicated above I am required to decide whether the Applicant is entitled to be paid a salary for the period 1 to 12 February 2019.

AGREED FACTS
5. The parties agreed on the following :-

5.1 The applicant had from 01 February 2019 to 12 February 2019 worked at Rustenburg Skool vir Buitengewone Onderwys.
5.2 The applicant started working for the respondent on a fixed term contract from January 2018 and the contract was to end on 31 December 2018.He started at Hoer Tegniese Skool Rustenburg.
5.3 The applicant had requested a transfer from Hoer Tegniese Skool Rustenburg to Rustenburg Skool vir Buitengewone Onderwys. The transfer was granted in July 2018. In the transfer his status was stated as permanent.

SURVEY OF EVIDENCE

6. The applicant, Mr Johannes Hendrick Fourie, testified that he was employed on a fixed term contract for the period February 2018 to 31 December 2018. He was transferred to Rustenburg Skool vir Buitengewone Onderwys during July 2018. The transfer letter stated that he was permanent. The transfer letter made him believe that he was absorbed permanently. He continued working after 31 December 2018.When he was not paid January salary on 26 January 2019, he made an enquiry. He was told that he was not paid because he was supposed to have stopped working by the end of December 2018 when his contract came to an end.

7. During cross-examination he testified that he continued to work until 12 February 2019 because he was not informed in writing that he was not supposed to work. He confirmed that the letter on bundle A55 was from his principal requesting the department to pay him for 1 -12 February 2019. He confirmed that the principal was requesting the department to borrow a post from another school to enable him to be paid. He said he did not know why the principal would request to borrow a post to enable him to be paid if he was permanent.

8. He conceded that he did not have proof that he was appointed by the department to work during the disputed period. He said he assumed that he was permanent during the transfer in July 2018.He became aware that he was not permanent when he was not paid January 2019 salary on 26 January 2019. He was not aware of the Collective Agreement 1 of 2010 and 1 of 2012 which his union is a party to, which outlines the processes that convert temporary educators to permanent. He signed an application for employment on 30 January 2019. A version was put him that he could not have been permanent because he did not go through this process and that it was an error by the department to state that his status was permanent.

CLOSING ARGUMENTS

9. The applicant argued he took in good faith that he became permanent in July 2018 when he got a transfer. He was only informed verbally when he did not get his January 2019 salary that he was not on the school’s post. He could not have relied on the verbal communication. He did not receive a written letter indicating that his permanent status was made in error, that he was not made permanent and that his contract had expired. He was advised to continue working because the nature of his employment was in dispute. However, he had to apply for another post where he would receive salary. He was paid January salary and bonus despite the respondent’s contention that he was not its employee.

10. The respondent argued that the applicant is not entitled to the relief because he was not an employee of the respondent during that period. This is confirmed by the applicant’s testimony during cross examination that the only contract he had with the respondent was the one which stated that he was temporary for the period February 2018 to December 2018. He failed to explain what could have made him permanent as he only asked for a transfer.

11. He further testified that he was not aware of several collective agreements which are the only ones used to convert temporary educators to permanent. SAOU is one of the signatories to those collective agreements. He admitted that he became aware that he could have stopped working by the end of December 2018 when he went to the respondent’s offices to enquire on the non-payment of his January salary around the 26th January 2019. It was the date on which educators received their salaries. He knew that he had a fixed term contract which was to end on 31 December 2018. He was never permanent as per the letter of transfer. The respondent paid him for January because he had already rendered services when the error was discovered in January 2019. He signed employment application forms on 30 January 2019. It indicates that by 30 January 2019, he was aware that he was not the employee of the respondent hence the application for a teaching post.

12. According to page 57, paragraph C, “Mr Fourie is helping out from 01/02/2019 to 12/02/2019. The request is made by the head of the institution (Principal) of Hoer Tegniese Skool Rustenburg and the School Governing Body. It is clear from this document that the applicant was not the respondent’s employee as he was helping out and not appointed by the respondent at that institution.

13. It is clear from these dates that these requests to borrow a post were an afterthought where the school wanted the respondent to pay the applicant during the period in dispute when they actually knew that the applicant was not appointed by the respondent but was helping out at that school. The dispute should be dismissed because he was not employed by the respondent for the period that he claims to be.

ANALYSIS OF EVIDENCE AND ARGUMENTS

14. The applicant bears the onus to prove that he is entitled to remuneration for the period 1 to 12 February 2019. His contention is that he continued to work during this period because he was not informed in writing that his fixed term contract had ended on 31 December 2018. It is common cause that his fixed term contract started in January 2018 and was to expire on 31 December 2018. It is further common cause that he requested a transfer to another school during July 2018 and that the transfer letter indicated that he was permanent.

15. According to him he was under the impression that he was made permanent from July 2018, hence he continued to work until January 2019 when he was not remunerated. It is common cause that in terms of the Collective Agreement which is binding on the Applicant there are processes that need to take place before an educator can be absorbed permanently. It is common cause that the applicant had not gone through these processes. Therefore, I am satisfied that he could not have been made permanent in July 2018 when he was transferred to Rustenburg Skool vir Buitengewone Onderwys.

16. The applicant had applied for a transfer not to be absorbed. I accept the respondent’s contention that permanent status was an error. This is confirmed when he was not paid at the end of January 2019. If he was permanent his salary could have been continued beyond the fixed term contract. I find it probable that the applicant was aware of the error but took advantage and continued working beyond his fixed term contract. It negates the applicant’s argument that the reason he was paid for January salary and bonus justified the fact that he was the respondent’s employee. The applicant’s contention is misplaced because the period in dispute is 1 to 12 February 2019.
.

17. The applicant is disingenuous because the reason that he was not remunerated in January 2019 was because his contract had ended in December 2018. The payment of his January salary and pro-rata bonus was made at a later stage to compensate for the error. The reason provided by the respondent that it was because he had already rendered services following the July error is plausible. It is a fallacy that I should condone the error to be perpetuated.

18. The applicant cannot claim more rights that he did not have i.e that he was permanent because he had not gone through the required processes. Despite being reminded on 26 January 2019 that his contract ended at the end of December he continued to work in February 2019 till the 12th without the appointment. It was at his own peril. At least he benefitted from relying on the error common to both parties in January. His actions post being reminded of the expiry of his fixed term contract are unjustified and unfounded. This is confirmed by the letter sent by the school principal to the respondent’s Head of Department requesting to borrow a post to enable him to be paid. The request was done after he had rendered services. He even applied for a post at the end of January proving that he was aware that his fixed term contract ended.

19. I am satisfied that the applicant rendered services from 1 to 12 February 2019 with full knowledge that he was not appointed or authorized to do so. Therefore, he cannot hold the respondent responsible to pay him. He volunteered the services. He was not the respondent’s employee during this period.

AWARD
I order that :

20. The applicant is not entitled to be remunerated for the period 1 to 12 February 2019.

Signed and dated at Pretoria on this 31th day of October 2019.

MG Rabyanyana
ELRC Panellist