Case Number: PSES GAAR003958 GP
Applicant: S A MABE
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 18 November 1999
Arbitrator: M DOLLIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003958 GP
In the arbitration between:
S A MABE APPLICANT
DEPARTMENT OF EDUCATION RESPONDENT
1 . HEARING AND REPRESENTATION
The matter was referred to the Education Labour Relations Council for final and binding determination at arbitration. The dispute between the Gauteng Department of Education and Mrs Mabe arose as a result of a breach of contract. The Department was represented by Mr Jeff Thipe and Mrs Mabe was represented by Mr A J van Wyk of the firm of attorneys Steven Meise Inc.
2 . ISSUE AND POWERS
2.1 The issue concerns the alleged breach of contract by the Department of Mrs Mabe’s terms and conditions of employment.
2.2 My powers are to determine the dispute and make an award that I deem fair in the circumstances. My powers and jurisdiction is located in terms of resolution 7 of 1997 of the Education Labour Relations Council (ELRC).
3 . BACKGROUND TO THE CASE
3.1 Mrs Mabe was employed after 1/07/1996 as a temporary educator and fell into the category of temporary unprotected educators in terms of the relevant collective agreements adopted as resolution 3 of 1996 by the ELRC. Her temporary contract was eventually terminated at the 31/12/1998 in accordance with resolution 128 of 1998 and contracts that controlled such appointments Mrs Mabe was aware of the termination and that is not being challenged here at all.
3.2 Prior to the termination of the contract Mrs Mabe alleges that she was called into the Principal’s office and informed that due to the staff shortages at the school she should return when the school opened in the new year. On her return she was informed by the principal that posts were not made available yet and that she should wait for such posts to become available.
3.3 A week later the Principal called Mrs Mabe to inform her that she would be offered a post replacing a teacher that was to take maternity leave. Mrs Mabe accepted the offer and assumed duty on 18/01/1999. According to the evidence of both Mrs Mabe and the Principal the position Mrs Mabe occupied was that of a substitute teacher.
3.4 According to the Department however, Mrs Mabe was a temporary unprotected educator on a fixed term contract from the 1/01/1999 to the 31/03/1999.
3.5 On the return of the educator Mrs Mabe was apparently substituting for the mistaken impression of the Principal and Mrs Mabe was corrected and she remained in the employ of the Department till the end of the term.
4 . EVIDENCE FOR THE DEPARTMENT
4.1 The school principal, Mr Khetsi, explained Mrs. Mabe’s position as a temporary unprotected teacher that was not part of the restructuring process that the school was to embark on in January 1999. Mr Khetsi further testified that Ms Mabe was aware that her contract was to expire at the end of 1998, as he had personally informed her of the termination and also stipulated that no offer of further employment was made.
4.2 Further Mrs Mabe was re-employed at the instance of the principal due to an increase in the number of the learners at the school. Mr Khetsi confirmed that there was some confusion relating to the post Mrs Mabe occupied. However this was addressed at the beginning of March 1999 when the substitutive teacher’s employment was terminated. It was then confirmed by the principal and the Department that Mrs Mabe was on a contract till the end of the term.
4.3 Had Mrs Mabe in fact been a substitute teacher her contract would have been terminated at the end of February 1999 on the return of the permanent teacher.
4.4 A contract was then presented for Mrs Mabe to sign indicating the starting date as the 01/01/1999 and end date as the 31/03/1999 on the 18/03/1999. This contract was not signed by Mrs. Mabe after several requests of the principal.
4.5 Under cross examination the principal did indicate that Mrs Mabe did not report for duty when school opened and reported for the first time when he had called her to return on the 19/01/1999. The explanation provided for this was that the post only became available when the school roll was submitted to the Department on the 18/01/1999.
4.6 On the termination of the contract at the end of the term Mrs Mabe was not offered a post for the second term as a transfer of teachers from the senior to the junior primary had taken place.
4.7 Mr Ndaba was the second witness for the Department who was in charge of staff establishments at the school in his district. Mr Ndaba confirmed that all temporary unprotected teacher’s contracts were terminated in line with department policy at the end of 1998.
4.8 With regard to the status of substitute teachers Mr Ndaba made it clear that a substitute teacher’s contract would be terminated one day prior to the permanent teachers returning to duty. This was not the case with Mrs Mabe as she was employed in a temporary capacity at the school.
4.9 Further Mr Ndaba made it clear that the school could not employ an educator unless a post was made available and written permission in line with Department policy was given for this to be done.
4.10 Mr Ndaba confirmed that Mrs Mabe was a temporary teacher that had been employed till the end of the term.
5 . EVIDENCE FOR THE COMPLAINANT, MRS MABE
5.1 Mrs Mabe appeared as the only witness in her own defence. She had confirmed that her contract would expire at the end of 1998. According to her she was informed by the Principal to return in January 1999 as a post would be made available for her.
5.2 On her return on the 11/01/1999 she was informed by the Principal that posts were not available and that should a post arise she would be called. She was indeed called and assumed duty on the 19/01/1999 on the understanding that she was a relief teacher (substitute).
5.3 On the 4/03/1999 it was confirmed by the Principal that her post was not as a substitute but as a temporary teacher. Mrs Mabe confirmed receipt of the fixed term contract for signature and also that she had not signed it.
5.4 The reason provided by Mrs Mabe as to why she had not signed the contract was because she was under the impression that she was a substitute teacher and not a temoprary teacher.
5.5 Mrs Mabe also confirmed that her contract at the end of 1998 was not subject to renewal.
6 . DISCUSSION OF EVIDENCE
6.1 When questioned as to the relief sought by Mrs Mabe at the end of her case it was clear that being a temporary teacher at the school meant that she was employed for one month longer in this case.
6.2 Thus her position was in fact more advantageous than that of a substitute teacher for the following reasons.
6.3 She had worked for a month longer.
6.4 Benefits that accrued to temporary teachers were more advantageous than those that accrued to substitute teachers.
6.5 Therefore, given Mrs Mabe’s post at the school, it is difficult to determine what prejudice she had suffered as a result, based on her claim that she was a substitute teacher.
6.6 Had Mrs Mabe claimed that she was entitled to an extension of her contract as a temporary educator her arguments could have been more acceptable as to the cause of action to be taken. This was not done with any merit and therefore will not be deliberated on here.
6.7 Mrs Mabe claimed that she suffered prejudice as a result of medical aid benefits not being made available to her. UIF contributions were not deducted and she was not informed of her pension fund benefits.
6.8 In closing, Mrs Mabe claimed that she had a legitimate expectation that her contract would be renewed in the 1999 year and also that the contract would be renewed on the same or similar terms that existed at the end of 1998. Further that the contract that ended on the 31/03/1999 should have been extended to the 31/10/1999. As this had not been done Mrs Mabe should be compensated for that period.
6.9 The evidence adduced by Mrs Mabe does not indicate that there was in fact a legitimate expectation. The principle of legitimate expectation is clear. The employer must do or say something that creates that expectation in the mind of the employee, the expectation must be based on some event or promise. Mrs Mabe did not adduce any evidence to that effect. Her evidence consistently was that she was employed in 1999 as a substitute teacher and not as a temporary teacher.
7 . FINDING AND AWARD
7.1 I find that Mrs Mabe was employed as a temporary teacher as indicated in the contract that was presented to her on the 18/03/1999 for the period 18/01/1999 to 31/03/1999. The contract was lawfully and fairly terminated on the 31/03/1999 and in accordance with the resolutions of the ELRC governing such appointments.
7.2 All benefits accruing to Mrs Mabe under this contract must be provided in accordance with Department policy and regulations governing such appointments.
7.3 No evidence suggests that the benefits may or may not be provided in retrospect. Therefore the Department regulations and rules of the pension fund, medical aid fund and Unemployment Insurance Fund must apply.
7.4 Should the parties not reach agreement on the application of these rules within a period of one month of this award a final determination will be made on presentation of evidence and argument on this issue only.
18 NOVEMBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES GAAR003958 GP
APPLICANT S A MABE
RESPONDENT DEPARTMENT OF EDUCATION
NATURE PAYMENT OF BENEFITS
ARBITRATOR M DOLLIE
DATE OF ARBITRATION 02/11/1999
APPLICANT MR A J VAN WYK
RESPONDENT MR JEFF THIPE
I find that Mrs Mabe was employed as a temporary teacher as indicated in the contract that was presented to her on the 18/03/1999 for the period 18/01/1999 to 31/03/1999. The contract was lawfully and fairly terminated on the 31/03/1999 and in accordance with the resolutions of the ELRC governing such appointments.
All benefits accruing to Mrs Mabe under this contract must be provided in accordance with Department policy and regulations governing such appointments.
No evidence suggests that the benefits may or may not be provided in retrospect. Therefore the Department regulations and rules of the pension fund, medical aid fund and Unemployment Insurance Fund must apply. Should the parties not reach agreement on the application of these rules within a period of one month of this award a final determination will be made on presentation of evidence and argument on this issue only.
DATE OF AWARD 18 NOVEMBER 1999