Case Number: PSES GAAR 3730 NP
Province: Eastern Cape
Applicant: K A MAPHANGA
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 19 July 1999
Arbitrator: IMRAAN HAFFEGEE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 3730 NP
In the arbitration between:
MAPHANGA KA APPLICANT
NORTHERN PROVINCE EDUCATION DEPARTMENT RESPONDENT
The arbitration was held on 26 June 1999 at the offices of the department in Pietersburg. Messrs Maseko and Managa represented the department and Mr Maphanga acted on his own behalf. I am indebted to them for their contributions.
1 . BACKGROUND
1.1 The department from January 1995 employed Mr Maphanga until his dismissal on 22 July 1998. From January 1995 to 31 December 1997, the department employed him on the annual fixed term contract that was a renewed every year. At the beginning of 1998 Mr Maphanga’s contract was for a fixed term for the period 1 January 1998 to 30 June 1998. Until or about April 1998 Mr Maphanga was employed at Ntspane Primary School.
1.2 He was employed as a temporary teacher filling the post of one Mrs MA Riba while she was acting as an HOD in the post of a Mr Tladi. Mr Tladi, in turn, was seconded to act as a principal at another school. At the end of the secondment Mr Tladi returned to his post as HOD. Mrs Riba then had to vacate Mr Tladi’s post. This left Mr Maphanga without any post. He was given a further temporary post on 1 May 1998 at Tantanyane School. Here too, he had to full the post of a teacher who was acting as the principal. The person whose post he was filling was that of a Mr Matjie. When a principal was appointed at Tantanyane School Mr Matjie returned to his post. That again left Mr Maphanga without any post as a result of which he was dismissed.
2 . EVIDENCE
2.1 The department of called no witnesses but submitted a number of documents in support of its case. I pointed to the department the consequences of not presenting any evidence by way of witnesses.
2.2 Mr Maphanga testified that during 1998 a Mr GS Riba was discovered as a ghost worker. The circuit inspector told him that he should give Mr GS Riba an opportunity to occupy his post as Mr GS Riba was a family man who had children to support at tertiary level. The circuit inspector also said them Maphanga that Mr GS Riba was from a royal family.
2.3 Mr GS Riba is presently employed at Ntepane School where Mr Maphanga was previously employed. During or about May 1998 the principal and the SGB told Mr Maphanga that the circuit inspector had told them to fill the post of a Mr MO Riba. The latter Mr Riba had died during April 1998.
2.4 During cross-examination Mr Maphanga acknowledged that he was aware that he was employed in a temporary position. He also acknowledged that he was aware that upon the return of Mr Tladi he would have to vacate the post. However, he applied for the post that had opened before Mr Tladi’s return. He was not contesting the post held by Mr Tladi. Instead, are he was contesting the post held by Mr GS Riba. According to him, Mr GS Riba was occupying the post vacated as a result of the death of Mr MO Riba.
2.5 He also testified that the circuit inspector had not forwarded these application forms to the department. When he was transferred to Tantanyane School the principal showed him a letter from the circuit inspector. This letter stated that as Mr GS Riba had lost his post Mr Maphanaga should be transferred to Tantanyane School. The letter also stated that the situation would be normalised after June 1998 by way of a post at Letau School. Mr Maphanga occupied the post of Mr MO Riba from 4 May 1998 to 18 May 1998 when he was sent to Tantanyane School. He understood “normalise the situation” to mean that he will be given a post at Ntepane School. He agreed that he had consented to be transferred to Tantenyane School but felt that he had to do so upon the instructions of the circuit inspector. He also did not object to his transfer because it was clear to him that this matter would be addressed after June. He was not aware that this would result in termination of his employment.
2.6 Mr Maphanga completed application forms for the post of Mr Marjie during or about May 1998. He conceded that he knew that upon Mr Tladi’s return, he would have to vacate his post. However, he did not regard this as the termination of the services. He regarded the non-appointment into Mr MO Riba’s post as the termination of the services.
2.7 He was not aware that he was entitled refuse the transfer to Tantanyane School. Further, as already stated above, he was under the impression that the problem would be resolved in June 1998.
2.8 The department argued that Mr Maphanga was at all times aware that he occupied a temporary post. As such he was also aware that upon this post been filled he would have to vacate such post. At the time of the termination of his services, he occupied the post of Mr Matjie. He then applied for the post of Mr MO Riba. A full-time teacher, namely, Mr GS Riba, already filled this post. The department submitted that Mr GS Riba was not a ghost worker as alleged by Mr Maphanga. If he were in fact so, the department would certainly have dismissed him. It was further argued that this was not a case of termination of employment on 22 July 1998 but merely expiry of a fixed term contract on 30 June 1998.
2.9 An S Lesese, in his or capacity as the manager, or owner or chairperson of the SGB, also signed the application by Mr Maphanga for Mr Marjie’s post. The post was described as a temporary one with the date from 1 May 1998 to 31 December 1998. This person signed the form as a recommendation and as a notice of appointment. Both signatures are dated 15 June 1998.
3 . FINDINGS
3.1 An arbitration of this type is determined on the balance of probabilities based on the evidence before the arbitrator. The only evidence before me is that of Mr Maphanga. I have no option but to accept his version on what he was told by the circuit inspector. The department only contested his version by way of the arguments it submitted as described above. It did not challenge the testimony of Mr Maphanga insofar as he testified about the information given to him by the circuit inspector.
3.2 Mr Maphanga made it abundantly clear that he was under the impression that he would be reinstated in the position of Mr M. MO Riba at the end of June 1998. This is borne out by the letter of 12 May 1998 which states the following:
“after June a post from the Letau will be used to
normalise the situation at Ntepane School on”.
3.3 In terms of section 186 of the Labour Relations Act (“the LRA”), “dismissal” means that “and employee he reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to the renew it on less favourable terms, or did not renew it”. The question here is whether Mr Maphanga was dismissed as he alleges or whether the department merely did not renew his fixed term contract. In terms of the section a further enquiry has to be made, namely, whether Mr Maphanga “reasonably expected” the department to renew his fixed term contract of employment on the same or similar terms as before.
3.4 The Labour Court considered similar facts in the case of Malandoh G v The South African Broadcasting Corporation (1997) 1 LC. In that case the applicant was employed on a fixed term contract renewed monthly. It was argued that the conduct of the employer in this respect and, inter alia, an alleged offer and acceptance of permanent employment, rendered the applicant’s employment permanent. The respondent in that case argued that an objective test had to be applied to determine whether the applicant’s employment had indeed become permanent.
3.5 Two factual enquiries were entered into to determine this point. The first related to the content of the contract of employment between the parties and the second to the conduct of the respondent. The Court chose to give effect to the contract and the learned judge said, “I am loath to incorporate other factors in the parties’ agreement as by doing so I would be imposing a different contract to that which the parties entered into”.
3.6 With regard to the second enquiry, the court found that the people who the applicant alleged had promised him permanent employment did not have the authority to bind the respondent. Also, the applicant’s conduct indicated that he was aware that the was employed on a fixed term contract that could expire at any time.
3.7 As in this case, the respondent in that case had also agreed with unions representing its employees on elaborate procedures for recruiting and appointing permanent employees. For instance, when vacancies arose they had to be advertised internally and only on the failure of internal candidates are they to be advertised externally.
3.8 The case before me displays numerous similarities to the above one. The application for employment is clearly one for temporary employment. The grievant testified that he was aware that if Mr Madjie returned he would be left without a post. In fact, he goes further to say that it is not that position that he is aggrieved about. It is the one he had applied for, namely, that of Mr MO Riba. I not convinced of the following: that he was offered the post of MO Riba; if he was in fact offered the post, such offer was of permanent employment; and whether the offer was made by a person having the authority to do so.
3.9 It is also so that similar provisions exist in this case with regard to the department and unions representing its employees concerning the appointment of permanent employees. Actually, the provisions of the agreement between the department and the unions representing its employees set out elaborate procedures in this regard.
3.10 In the case cited above the learned judge Mlambo JA stated that the applicant had failed to persuade him that “he had a bona fide reasonable expectation of continued employment”. For the reasons set out above, I too find that the grievant has shown that he had a bona fide reasonable expectation to permanent employment.
3.11 However, I find that based on the evidence before me Mr Maphanga did have a bona fide reasonable expectation to continued employment, albeit of a temporary nature, until 31 December 1998. I can only accept what he tells me with regard to be information given to him by the circuit inspector. According to him, he expected to return to Ntelpane School to occupy post of Mr MO Riba. His transfer to Tantanyane School was a temporary measure. Also important, is the fact that he was employed in a temporary position at Ntepane School since January 1995. I therefore find, are on a balance of probabilities, that his version regarding be information given to him by the circuit inspector is correct. With no evidence to the contrary, I have no option but to accept his version.
4 . DETERMINATION
4.1 The Termination fo the applicant’s contract of employment is unfair in that the grievant had a bona fide reasonable expectation of continued temporary employment until December 1998. The grievant is to be paid compensation in an amount equivalent to the salary he would have received had he not been dismissed on 22 July 1998. In other words, this amount must be equivalent to the salary he would have received from 22 July 1998 to 31 December 1998.
19 July 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR 3730 NP
APPLICANT K A MAPHANGA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE CONTRACT / APPOINTMENT
ARBITRATOR IMRAAN HAFFEGEE
DATE OF ARBITRATION 26 JUNE 1999
APPLICANT IN PERSON
RESPONDENT MR MASEKO & MR MANAGA
1 The Termination fo the applicant’s contract of employment is unfair in that the grievant had a bona fide reasonable expectation of continued temporary employment until December 1998. The grievant is to be paid compensation in an amount equivalent to the salary he would have received had he not been dismissed on 22 July 1998. In other words, this amount must be equivalent to the salary he would have received from 22 July 1998 to 31 December 1998.
DATE OF AWARD 19 JULY 1999