IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN

In the matter between:

SOUTH AFRICAN DEMOCRATIC TEACHERS UNION (SADTU) ON BEHALF OF N. SOKOYI AND N. MHLANGA
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration was held at the offices of the Department of Education Western Cape on 25 May 2023. The applicants were represented by Mr. S. Z. Mamo an official from SADTU. The respondent was represented by Mr. N. K. Mbobo an employee relations officer.

THE ISSUE IN DISPUTE

2. I must decide whether the applicants were dismissed as contemplated in terms of Section 186(1)(b)(ii) of the Labour Relations Act, Act 66 of 1995 as amended (LRA)..

THE BACKGROUND TO THE DISPUTE

3. Ms. Mhlanga (Mhlanga) was a Post level1 educator at the Inkanini Primary School in Khayelitsha while Mr. Sokoyi (Sokoyi) was an intermediate teacher at the same school.

4. In terms of Section 138(7) of the LRA, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

5. Each party handed a bundle of documents into evidence to which neither recorded any objections.

6. It is common cause that the applicants fixed term contracts were not renewed on 18 January 2023. Mhlanga worked for the respondent from January 2018 and earned a gross salary of R37363.82 while Sokoyi worked for the respondent from January 2019 and earned a gross salary of R35277.31.

7. Mhlanaga is currently in the respondent’s employ as a post level 1 educator since 12 April 2023 having been re-employed. Sokoyi remains unemployed.

8. Mrs. Siphiwe Hazel Ngcongca (Ngcongca), the school principal, and Mr. Clinton Booysen (Booysen), a human resources officer testified under oath for the respondent.

9. Soyoki testified under oath for the applicants.

The evidence for the respondent:
10. Ngcongca testified that there were 14 growth posts at the school and these had always been renewed without being advertised. In 2022 there were 16 such posts.

11. The applicants were in growth posts in 2021 and normal posts in 2022. The conversion process is applicable to teachers in contract posts applying to become permanent teachers. This Ngcongca had done in respects of the contract posts of the applicants between 2021 and 2022. She had not received any feedback in this regard from the respondent’s recruitment and selection officers.

12. The converted posts of the applicants were to run from January 2023 to 31 December 2023.

13. This was in a circular (the circular)(Renewal of Employment Contracts of Qualifying Educators and Public Service Staff (Employees) from 1 January 2023 until 31 December 2023 dated 15 November 2022) (page16 of the applicants’ bundle of documents) to all principals but the school’s administrative clerk, who is the wife of the SGB Chairperson, Mr. Lili, gave it to him. Ngcongca thus got to hear about it for the first time at a meeting of the SGB.

14. At this meeting, Lili had explained to the meeting that the circular called for the posts to be advertised. At a later meeting Ngcongca explained to the SGB that the circular did not call for the advertising of the posts. The purpose of the circular was as a guide on the appointment of the contract posts. Lili however made it clear that the posts would be advertised and that recruitment and selection would be applied.

15. On 17 November 2022 when Lili had come to her office the issue was again raised. It resulted in an argument with Lili slapping her in the face. She has laid a charge at the police station.

16. On that day he was shouting that Mhlanga’s contract would not be renewed as she was too old.

17. He had also shouted that Sokoyi was always late for school and did not do his work. He had then called the circuit manager, Mr. Carolissen to inform him of this.

18. After 17 November 2022 Lili and members of the SGB denied Ngcongca access to the school. Contrary to the contents of the circular, the SGB made the educators apply for their positions and conducted interviews on 23 November 2022.

19. Ngcongca did not participate in these interviews as she had been denied access to the school. Eleven of the thirteen educators were recommended to be appointed on contract.

20. On 18 January 2023 two more teachers were appointed and in the absence of Ngcongca, who was reporting at the Metro East Department of Education.

21. Teachers were then informed of the renewal or non-renewal of their contracts at the assembly on 18 January 2023.

22. Ngcongca had still been denied access and so was not present when two new teachers were appointed at a meeting of the SGB.

23. She therefore was also not aware of the composition of that SGB meeting.

24. She was also not informed of a meeting of the SGB where the applicants contracts were not renewed. She was not consulted about their none-renewal at all. She got to hear of this only when they reported to the department what had happened to them on 18 January 2023. As she had not delegated her duties as principal she assumed that there was no one performing those duties at this meeting.

25. Ngcongca is convinced that the advertising and interviews for the posts were done with the intention of not renewing the contracts of the applicants as they were the only teachers whose contracts were not renewed.

26. In relation to the termination of their contracts the applicants were never involved in a process regarding their performance or conduct.

27. Before their contracts were terminated they were not given letters saying their contracts would not be renewed and reasons therefor.

28. She agreed that the manner in which the termination of the applicants’ positions was announced was embarrassing and humiliating and that it amounted to disrespect and a violation of human dignity.

29. Ngcongca testified that Lili had also accused the Sokoyi of having an unwarranted relationship with a student teacher and that she allowed it. He reported this to the circuit manager, Mr. Carolissen (Carolossen).

30. Lili had also alleged that Sokoyi was a relative of hers which is not true. They reside in the same area as the house of the grandparents of Sokoyi was located there.

31. She had explained to Carolissen that Sokoyi was mentoring the student teacher as they teach the same subjects. She had also explained to Carolissen that she was not related to Sokoyi.

32. Lili’s attitude towards Sokoyi was because he wanted to settle a personal score with him.

33. Both applicants were diligent, dedicated and hardworking teachers with excellent classroom management skills.

34. Booysen’s testimony was that the applicants were in growth posts up to 2021 and may have been in normal contract posts in 2022. Growth posts could not be considered for conversion but only educators in substantive vacant posts.

35. The line manager at the school was the principal and not the chairperson of the SGB.

36. As the applicants had persal numbers they were employees of the respondent and not the SGB.

37. The principal was the delegated authority to hire and fire and report to the respondent.

The evidence for the applicants:

38. Sokoyi confirmed the incident on 17 November 2022 in which Lili was in the principal’s office arguing with her. He had heard Ngcongca screaming and crying thereafter.

39. He confirmed that Lili had spoken to him in vulgar and insulting language and had slapped him.

40. He had subsequently laid a charge against Lili at the police station.

41. On 18 November 2022 Lili had called a meeting of the SGB after excluding Ngcongca by closing the gates of the school.

42. At the meeting Lili had explained the circular and had told them to apply for their positions and that interviews would be conducted for each teacher.

43. Sokoyi had pointed out that there was nothing in the circular that called for this. Lili however had said they should do the same procedure as for a position of HOD to ensure fairness.

44. On 16 January 2023 the teachers returned to school and everything proceeded as normal.

45. They left and returned on 17 January 2023. There was still chaos at the school as Lili had still shut Ngcongca out by closing the gates of the school. Ngcongca was reporting to work accompanied by the police.

46. On 17 January 2023 Lili had called a meeting with the school management team and the contract teachers. He had advised that no one would be fired and joked that he was waiting for the department.

47. On 18 January 2023 at the assembly where learners and teachers were present Lili, having been invited by the deputy principal to address the assembly, announced the names of those teachers who had retained their contracts. He named two new teachers and the names of the applicants were not mentioned.

48. Ngcongca was still at the gate with the police and there was chaos. Ngcongca had left again with the police.

49. Later at around 10H00 one of the new teachers came to his classroom and informed him that the deputy principal had told her to come to this classroom where she would be the class teacher.

50. Later the deputy principal told him there was nothing he, the deputy principal could do about it as matters were out of his control.

51. The deputy principal told him to just take his things and leave.

52. When he called the Mhlanga she informed him that she had already left the school as Miss Cweli, the secretary of the SGB, had brought a replacement teacher to her classroom.

53. He conceded that he had initially been appointed in a growth post and in a substantive vacant post in 2022.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

54. It is clear from the evidence presented at this arbitration that the applicants had been dismissed in circumstances where it is contended by them that they ought to have had their contracts renewed.

55. This issue had clearly arisen as a consequence of what it was that the circular required be done in respect of teachers who qualify in terms of the said circular.

56. The evidence before me manifested in the dismissals suggests that in respect of Mhlanga that the respondent acknowledges that her dismissal was unfair hence her re-employment.

57. It is particularly with reference to Sokoyi that the application of the instructions in the circular come into focus.

58. I find that this circular requires that the contract teachers alluded to therein, which includes the applicants, must be included in the programmatic renewal of employment contracts for 2023 unless there is a condition mentioned in the circular that excludes them (see paragraph 3).

59. There is nothing placed before me from which to conclude that the respondent has shown any of these conditions prevailing in relation to the applicants.

60. It is then ultimately the argument for the respondent that it is not under any obligation to renew the contracts of the applicants.

61. In this particular regard the argument for the applicants is that through the process of conversion having been initiated the respondent had created a reasonable expectation that the applicants would be employed in their positions on a permanent basis

62. Notwithstanding, there is before this arbitration no evidence of a properly constituted process, initiated by the respondent, in terms of which the applicants had participated and the two new teachers had been appointed in the positions of the applicants.

63. The only process of which there is evidence presented at this arbitration is that initiated by Lili. The evidence before this arbitration is furthermore of Lili’s not having any powers to convene a meeting for the appointment of educators at the school where those educators are paid employees of the respondent. This is not contradicted and is supported by the evidence that the posts are substantive vacant posts. There is no evidence before this arbitration of these posts being SGB posts.

64. The fact that Ngcongca had been excluded from the process in terms of which the applicants had ultimately not been appointed and two other teachers appointed is also irregular when one considers the role assigned to the school principal in processes regarding the filling of substantive vacant posts.

65. For the respondent to then argue that the termination of the applicants’ contracts was fair because it did not renew those contracts i.e because of the effluxion of time, is disingenuous.

66. The evidence for the respondent through the testimony of Ngcongca is that educators such as are the applicants do not apply for their positions in the absence of transgressions of e.g. misconduct or performance. This implies that the respondent will renew such contracts unless there is a reason not to do so.

67. The evidence before me is of the applicants being hardworking, diligent educators and an asset to the school.

68. The evidence and argument of the respondent is in fact of its intention to convert the applicants to permanent positions being overtaken by the events that unfolded.

69. The evidence suggests rather that the respondent would have renewed the contracts of the applicants but for its not dealing adequately with their situation.
70. In the circumstances I cannot but conclude that the respondent has treated the applicants unfairly when it had dismissed them.

71. On an overall conspectus of all the evidence presented at this arbitration it is clear that the applicants had been dismissed and that such dismissal was unfair.

72. In this regard I am satisfied to hold that the chairperson of the SGB cannot determine the interpretation of the circular in question. The circular itself shows it is inter alia directed to district directors, circuit managers, head of isles, principals, managers and makes no mention of the chairperson of the SGB.

73. Furthermore, the unchallenged testimony of Ngcongca shows her not having participated in the termination of the services of the applicants at all.

74. Clearly the instruction contained in paragraph 6 of the circular had not been given effect to in the dismissal of the applicants.

75. This paragraph reads “The exclusion of contract employees from the programmatic renewal of employment contracts must be both substantively (the reason must be legitimate) and procedurally fair (a fair process/procedure must have been followed) in identifying non-qualifiers. Those excluded must be informed by the principal….that they will not be included in the programmatic renewal of employment contracts. Principals….must keep documentary evidence of having informed non-qualifying contract employees of their exclusion from the programmatic employment contract renewal process.”.
76. The non-compliance of the respondent with this clause in the circular gives rise to an unfair dismissal of the applicants.

77. Mhlanga, as stated above is already reemployed in the respondent. She had demanded that she be paid the salary she lost from the date of the dismissal on 18 January 2023 until the date of the re-employment on 12 April 2023.

78. Sokoyi has demanded to be reinstated without loss of remuneration or benefits from the date of his dismissal on 18 January 2023. Sokoyi does not want to be reinstated at the same school.

79. In making this award I have taken into account the provisions of the Labour Relations Act 66 of 1995 as amended in particular sections 193 and s194.

AWARD

80. I therefore find that the applicants were dismissed as contemplated in terms of Section 186(1)(b)(ii) of the LRA.

81. I order the respondent, the Department of Education, Western Cape to reinstate Ms. N. Mhlanga as from date of dismissal and to pay her back-pay in an amount equal to the salary she would have received from 1 January 2023 to 12 April 2023 in the amount of R126,732.26 (one hundred and twenty six thousand seven hundred and thirty two rand and twenty six cents).

82. I further order the respondent, the Department of Education, Western Cape to reinstate Mr. N. Sokoyi as an educator teaching in the intermediate phase and that such reinstatement be from 1 January 2023 without loss of remuneration and benefits. I therefore order the respondent, the Department of Education, Western Cape to pay Mr. N. Sokoyi back-pay in an amount equivalent to the salary he would have received but for his unfair dismissal, namely from 1 January to 30 June 2023 in the amount of R211,663.86 (two hundred and eleven thousand six hundred and sixty three rand and eighty six cents.

83. All amounts are due and payable by no later than 30 June 2023 after which, if not paid, it will attract interest at the legal rate of interest.

6 June 2023