Case Number: PSES 08/2000 0896 GDE
Province: Eastern Cape
Applicant: SADTU obo NGOASHENG & KHOZA
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 20 December 2000
Arbitrator: MAHOMED JAJBHAY
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES 08/2000 0896 GDE
In the arbitration between:
SADTU obo NGOASHENG & KHOZA APPLICANT
GAUTENG DEPARTMENT OF EDUCATION
1 . ISSUES IN DISPUTE
.1 Ms Ngoasheng and Ms Khoza were employed as Educators by the Gauteng Department of Education. They were employed in terms of Fixed Term Contracts.
.2 Ms Ngoasheng and Ms Khoza (“the Applicants”) were both employed at the Jiyana Secondary School. Ms Ngoasheng commenced her appointment at the school on 3 Marsh 1997. It was common cause that the contract was a temporary contract. The contract between her and the Gauteng Department of Education (“GDE”) was renewed on a quarterly basis.
.3 Initially Ms Ngoasheng was teaching General Science and Maths to grade 8 learners. However in the year 2000, she was teaching the subject of Maths only.
.4 Ms Khoza was appointed during September 1999. She was employed to teach Biology to grades 8 and 11.
.5 The Applicants entered into a written contract with the GDE. The important portions of the contract are set out as follows:
.1 Starting date of temporary appointment : 01:01:2000
.2 End date of temporary appointment : 31:03:2000
.3 This letter serves as the only official permission to assume duty as an Educator appointed in a temporary capacity pending the receipt of the formal letter of appointment. Please note that this permission to assume duty is not an official letter of appointment.
.4 The principal of the institution must in addition to this permission to assume duty, inform the district office of the actual date of assumption of duties, to enable the regional office to generate the letter of appointment.
.5 In the event of educators having been employed who are not protected by agreements, reasonable notice will be given if the post must be vacated prior to 31 March 2000.
.6 The validity of this permission expires after 31 March 2000.
.6 During the early part of 2000, the Jiyana Secondary School advertised for certain posts. The requirement of the school was to acquire individuals who would be the head of Department in various posts. These posts included the subjects that the Applicants were teaching.
.7 As a result of certain logistical difficulties, the persons selected to occupy the posts, could not commence their duties in April, as was envisaged. In the circumstances, the Applicant’s were given an extension of their contracts.
.8 In terms of a letter dated 30 May 2000, the following is set out to the Applicants:
.1 Period of employment 1 April 2000 - 30 June 2000 or as in paragraph 3 below.
.2 The following will be instances where the end date in paragraph 2.4 (that is the period of employment) above will not apply:
.1 if the post is filled earlier through a vancancy list according to an approved establishment or
.3 The educator acknowledges that he/she is not entitled to the renewal of the employment contract nor does he/she expect that such employment will be renewed after 30 June 2000.
.9 The Applicants signed this letter agreeing to the terms and conditions that were set out.
.10 The Applicants agreed that they were familiar with a circular i.e. circular 45/2000 which specifically stated that:
“all appointments in a temporary capacity will end on 30 June 2000 (with the exception of substitutes)”
“institutions should submit the relevant documentation to recommend appointments in a temporary capacity into substantive posts to district offices between 15 June and 21 June 2000. The period of appointment should be 2000/07/01 to 2000/12/31".
.11 Neither of the Applicants were recommended or requested to work for the period that was envisaged in circular No 45.
.12 From time to time, the GDE issued circulars setting out the status of contracts of the temporary educators such as those in the position of the Applicants. The Applicants did not dispute that the contents of the circulars had come to their knowledge at all material times.
.13 The principal at the Jiyana Secondary School testified that prior to the termination of the contracts, notwithstanding the fact that the contracts were of a fixed term, certain criteria were considered prior to selecting the individual Applicants. The criteria were as follows :
.1 The school looked at the role of the learners;
.2 The curricula needs of the school were considered.
.3 The fact whether the educator was able to teach from grade 8 to 12 in an uninterrupted fashion.
.4 Whether the educator qualified to teach the subjects that were considered.
.5 The academic qualifications of the educator were considered.
.6 The professional qualifications of the educator were considered.
.14 It was common cause that Ms Ngoasheng was in possession of a Senior Primary Teachers Diploma. There was some dispute as to whether she could teach up to standards including grade 8. However for the purposes of this particular award, nothing turns around this particular point.
.15 A Senior Primary Teachers Diploma essentially prepares educators to teach in the primary schools. As I understood the evidence, there are circumstances when these educators could in fact teach in secondary schools as well. However certain skills will have to be developed.
.16 Ms Ngoasheng was never requested to teach grades higher than grade 8 at the school. In terms of the evidence, her experience was not conducive to teach at a higher level.
.17 The post establishment at the Jiyana School was 51. In other words the GDE allowed this particular school a staff compliment of 51 educators in total. As soon as the persons that were appointed as the HOD for the different subjects had commenced with their duties, than the post establishment would be in excess of 51. In those circumstances, certain educators had to be relieved of their duties. The school management team considered this particular issue, and recommended that the Applicants be requested not to resume their duties after the termination of their fixed term contracts. At the beginning of the deliberations of the school management team, the Applicants were present. However, sometime thereafter, the Applicants refused to attend the consultation processes despite senior members at the school inviting them to attend these important sessions.
.18 The school principal informed me that it would not be possible to relieve any permanent educators of their duties. The criteria that was set out were implemented, and unfortunately the Applicant’s contracts were not renewed from July onwards.
.19 The roll at the school was 1943 learners. Approximately 1400 learners were being taught the subject of Mathematics. There were two educators at the school who were catering for the 1943 Science learners. The school indicated that it required an educator to teach Science. The needs of the school were considered. There was some altercation between the educators and the principal insofar as the Applicant’s responsibilities were concerned during the month of May and June. Ms Khoza terminated her duties at the end of May. Ms Ngoasheng went to school up to the 6th of July. Both the Applicant’s insisted that they requested letters from the GDE to indicate that their services had been terminated. These letters were not initially forthcoming. I was informed that if these letters were produced, they would have left the school voluntarily. Circular 45.2000 which I have referred to herein before is dated 12 June 2000. This circular clearly sets out the status of the temporary educators.
.20 During the time that the persons were appointed as HOD could not assume their duties, the Applicant’s were requested to continue with their responsibilities on a monthly basis.
.21 Mr Mashiani was appointed as a temporary educator at the commencement of the year 2000. He was contracted to teach Physical Science and Maths. This gentleman was present when the Applicant’s were there. Mr Mashiani’s contract was not terminated essentially because he was teaching Science and Maths. There was a need for an additional Science educator. It will be recalled that the Applicants did not teach Physical Science. However Ms Ngoasheng was qualified to reach Science up to grade 8. Mr Mashiani could in fact teach Physical Science up to grade 12.
.22 During their evidence in chief, both the Applicants confirmed that they were employed at the Jiyana Secondary School in terms of a fixed term contract. They understood the implications of a fixed term contract. The contract was never confirmed to be permanent. The contract continually ran until it was terminated, and thereafter it was extended for an additional quarter.
.23 Circulars were issued from time to time by the GDE which indicated the status of their contracts.
.24 During the end of May 2000, the District Education Co-ordinator had attended at the school with a view to resolve the dispute that had surfaced. The Applicants requested a letter from the GDE setting out the fact that their contracts have been terminated. Since this was not forthcoming, they were reluctant to leave the school. However as I have indicated earlier, the circulars indicating the status of their contracts as well as certain meetings that were called upon informed them that they would not be required to render services from July 2000 onwards.
.25 There was no dispute that once the HOD’s were appointed in their positions, there would be an excess of educator at the school. Initially, Ms Ngoasheng testified to that the contracts were automatically renewed. However upon closer cross-examination, it became evident that there was no automatic process in the renewal of contracts. The concept of automatic renewal is not in place at the GDE.
.26 In terms of our common law, a fixed term contract terminates automatically as soon as the period for which it had been entered into expires. There need not be any termination at the initiative of the employer, and therefore, no dismissal in the generally accepted sense of the word would ensue.
.27 However, the provisions of Chapter VIII of the Labour Relations Act 66 of 1955 (“the Act”) set out in Section 188 (1)(a) and (b) as follows :
“Dismissal means that ... an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it”.
.28 It is envisaged in terms of the provision that I have set out that the employee must have a reasonable expectation that the employer would renew the fixed term contract. If such an expectation is found to be present, the refusal would constitute a dismissal (Section 186(b)). Thereafter, once it is clear that a dismissal of this nature has occurred, the employer has to prove that the reason for the dismissal is a fair reason related to the employees conduct or capacity or related to the employer’s operational requirements and that the dismissal was effected in accordance with a fair procedure.
.29 In the present matter it is common cause that the status of the Applicants was determined in terms of the fixed term contract. I have set out the important provision of the contract hereinbefore.
.30 The implication of the contract that I have referred to herein before are that both parties the employer and employee, have agreed that the duration of the contract will be limited. The Act envisages a stricter approach when compared to the common law in respect of fixed term contracts. At the height hereof lies the generally accepted truism that fixed term employment is viewed as a typical form of employment. It has been argued that such contrasts with the modern day notion of employment relationship which notwithstanding signs of contrary development in some jurisdictions, in the South African context, envisages a continuous relationship between the employer and the employee. The Act, in fact, regards the termination of a fixed term contract in circumstances where a reasonable expectation exists that the contract would be renewed on the same or similar terms as a dismissal. See for example National Chemsearch (SA) v Borroman and Another 1979 (3) SA 1092 (T): George v Liberty Life Association of Africa Limited 1996 BLLR 494 (IC).
.31 In my view, the employer does not have an unfetted discretion to renew or not to renew, whatever the reason for the non-renewal may be.
Cremark a division of PPP - Chemical Ventures (Pty) Ltd v SA Chemical Workers Union and Others (1994) 15 ILJ 289 (LAC);
P le Roux and A van Niekerk the South African Law of Unfair Dismissal 1994 at 88
.32 Where the employer is able to show on a balance of probabilities that fairness considerations were in fact taken into account, then in those circumstances the reason for the non-renewal will be present.
.33 It is clear from the wording of Section 196(b) of the Act that proving the existence of a reasonable expectation of renewal of a fixed term contract is imperative. The notion of reasonable expectation is not restricted to the field of Labour Law; there are other areas of our law, notably administrative law, where it has matured into a doctrine with forceful application, overturning and stretching beyond the narrow, confines and rigidities of our common law and law of contract. Irrespective of the area of law where the notion or doctrine is applied, it essentially is an equity criteria, ensuring relief to a party on the basis of fairness in circumstances where the strict principles of the law would not foresee a remedy.
See : Administrator, Transvaal v Traub 1989 (4) SA 731 (A).
.34 Corbett, C J in the Traub matter set out the following :
“There are many cases where an adherence to the formula of liberty, property and existing rights would fail to provide a legal remedy, when the facts cry out for one; and would result in a decision which appear to have been arrived at by a procedure which was clearly unfair being immune from review. The law should in such cases be made to reach out and come to the aid of persons prejudicially affected”.
.35 Insofar as Section 196(b) of the Act is concerned, it clearly envisages the existence of a substantive expectation, in the sense that the expectation must relate to the renewal of the fixed term contract. I have set out earlier, that fairness has an important role to play in determining whether a reasonable expectation has come about. The fairness jurisdiction of the Act in this regard operates at two levels: at the level of establishing whether an expectation as foreseen by Section 196(b) has been created, as well as at the level of determining whether the refusal of failure to give effect to the expectation was fair with regard to the dismissal grounds contained in the Act.
.36 I now return to the facts of the present matter and apply the law that I have set out.
.37 The Applicants were employed in terms of a fixed term contract. At the end of June 2000, the employer did not renew this contract. The Applicants indicated that they would have expected to have been employed until the end of December 2000.
.38 During the subsistence of the employment relationship and the contractual tenure, the GDE issued circulars setting out the status of educators who were employed in terms of a fixed term contract. The terms were clear and unambiguous. The educator in fact accepted these conditions on each occasion by appending their signatures to the relevant documents. The educators did not protest on any single occasion and there was no evidence of this particular fact forthcoming in the present matter.
.39 The relevant documents particularly the documents that I have set out hereinbefore, indicate that the nature of the contract is “the educator is appointed in a temporary capacity”. The additional documents go on to set out that if the post is filled through a vacancy list according to an approved establishment, then in those circumstances the early termination of the contract is in order. Once again, the Applicants accepted these terms and conditions.
.40 In my view, the employer did not summarily or arbitrarily deal with the Applicants in the termination of their fixed term contracts. The evidence indicates that there were fixed determinable and clear criteria in terms of which the Applicants were selected. The criteria are set out hereinbefore. These were applied to the educators in a fair and equitable manner.
.41 Ms Ngoasheng was not qualified to teach grad 12's. In the absence of such qualifications, Mr Mashiani was far better place to teach these subjects.
.42 The academic qualifications coupled with the professional qualifications of Ms Ngoasheng made her the person whose contract would not be extended. The school after having advertised posts for the HOD, in subjects that the Applicants were teaching, and having acquired these persons were place in a position due to operational reasons where certain contracts could not be continued. It ws not reasonable to expect that permanent teachers be asked to leave. It is correct that Ms Ngoasheng’s contract was renewed from 1997. However the circumstances in the year 2000 at the school were different: the difference was that after April 2000, the school acquired educators who would take over the teaching responsibilities of the Applicants, as well as attend to management functions. This would be in line with the policy of good governance and learner requirements.
.43 I have already indicated that the post establishment at this school was 51. For reasons related to operational requirements, the Applicants contracts could not be extended. There is in the circumstances a rational connection between the criteria adopted, and the ultimate decision not to renew the contracts of the educators at the Jiyana School.
.44 It is correct that Mr Mashiani was also a temporary educator. However the difference between him and the present Applicants is that Mr Mashiani was teaching Science as well as Maths. There was a dire need for additional Science teachers. Mr Mashiani could continue teaching Science from grad 8 to grade 12. None of the present Applicants could do that. Insofar as Ms Khoza was concerned, she was replaced by an HOD for the subject of Biology.
.45 The Applicants indicated to me at all material times that all that they were looking for was a letter that would indicate that the GDE does not require their services any longer. Notwithstanding the fact that the letter was not forthcoming, in my view, the contents of the letter which sets out the tenure of their contract, read together with the circular i.e. circular 45/2000, sets out in clear and unambiguous terms the date of termination of the contract.
.46 In my view, there was no expectation that was established by the GDE to create the impression that the contracts of the Applicants would be extended until the end of December 2000.
.47 In fact, there was very little evidence if any at all, to establish the existence of a reasonable expectation. Proving the existence of a reasonable expectation to a contract, would entail evaluation the functional role and relative applicability of a wide range of fairness considerations. These considerations do not constitute a closed category; and the list is by no means exhaustive. It would invariably occur in practice that the expectations are not shared by the employer and the employee.
.48 In the present circumstances, where one considers the conduct of the parties, and evaluates same, in terms of the evidence that I have set out hereinbefore as well as the other evidence that was before me, I cannot say that an expectation was created in any manner whatsoever.
.49 When one considers the intention of the parties insofar as re-employment on the fixed term contracts was concerned, it cannot be stated that both parties were ad idem that these contracts would be extended on a continuous basis. The school advertised for certain posts which had a direct impact on the contracts that were in place vis a vis the Applicants and the GDE. This in itself must have sounded certain alarm bells to the Applicants that their contracts would not be extended after June 2000. In addition, there were meetings that determined and applied the reasonable criteria. For reasons best known to the Applicants, they discontinued with their participation in attending these meetings.
.50 There was no undertaking even to the extend a tacit undertaking that the contracts would be extended in a perpetual fashion. The circulars that were circulated from time to time is sufficient proof of this fact. This school required HOD’s who would attend the teaching functions, as well as management functions. The Applicants to a certain degree were able to teach the subjects for the standards required, but were not able to attend to the management functions. They conceded with this fact.
.51 In all of the above circumstances, I am unable to determine that the fact that the GDE did not renew the Applicants fixed term contracts constituted a dismissal in terms of the Act. Accordingly, my determination is as follows :
.1 The Applicants application is dismissed. The non-renewal of the Applicants fixed term contracts did not constitute a dismissal as envisaged in Sections 188(1)(a) and (b) of the Labour Relations Act 66 of 1995.
Date : 20 December 2000
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 08/2000 0896 GDE
APPLICANT SADTU obo NGOASHENG & KHOZA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE NON-RENEWAL OF TERM CONTRACT
ARBITRATOR MAHOMED JAJBHAY
DATE OF ARBITRATION
The Applicants application is dismissed. The non-renewal of the Applicants fixed term contracts did not constitute a dismissal as envisaged in Sections 188(1)(a) and (b) of the Labour Relations Act 66 of 1995.
DATE OF AWARD 20 DECEMBER 2000