Case Number: PSES 572-04/05 LP
Respondent: DEPARTMENT OF EDUCATION LP
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 24 February 2005
Arbitrator: N ENOCH
CASE NO. PSES:572-04/05LP
IN THE CON ARBITRATION BETWEEN
Joubert & May obo Ngobeni Employee Party
DoE-LP Employer Party
DETAILS OF THE CON ARBITRATION HEARING
The hearing was held on the 24th February 2005 at the Department of Education head Quarters (Polokwane) in Limpopo Province. Both Parties attended the proceedings.
ISSUE TO BE DECIDED
I have to determine whether the termination of the Applicant’s contract was both procedural and substantively fair or not. If I find it to be unfair, I must determine appropriate relief.
BACKGROUND TO THE ISSUE
The Applicant was appointed as a temporal Educator since February 1997. He was appointed at Xihoko Primary School. He was on yearly contract which was since renewed after 31st December every year since 1997 up to 2001. During October 2004, the Applicant was informed that his services will be terminated at the end of the year 2004. The Applicant claimed that his dismissal was wrongly done due to the fact that he was permanently appointed to the post at that school.
SURVEY OF EVIDENCE
It was testified by the Applicant that he was permanently employed to the post as from 2001 when he was informed that there was no longer any need to complete the form of the contract as he was already appointed permanently to the post. It was further testified that since 2001 up to 2004 January no contract forms completed. When cross questioned who instructed him not to complete the renewal forms, the Applicant stated that the instruction was from the school Principal. The Applicant did not elaborate reasons in this regard.
The Respondent’s witness (The Principal) testified that the Applicant was appointed as a temporal Educator to the substantive post at that school. The Applicant was initially appointed for the post for six months and in 1999 June the contract was extended. Around 2001 the Applicant informed the Respondent’s witness that the Union Organization Representative (SADTU) informed all the temporal Educators that their status have been changed from temporal to permanent. The Respondent’s witness did not challenge or question the information received from the Applicant. The Applicant continued working at the school even though he did not renew his contract of employment.
ANALYSIS OF ARGUMENT
The employment contract forms the foundation of the relationship between an Employee and the Employer, and it is the starting point of the entire system of labour law rules. All rules of labour law depend at least initially on there being a contract of employment which links the individual Employee to the Employer. It was a common cause that the two Parties had an employment relationship. It was also established that the two Parties did not clearly have the exact date of the contract agreement. It is true that the Applicant was hired as an Educator in exchange for remuneration in terms of the contract agreement.
The Applicant was aware of his terms and conditions of his contract since the beginning when he entered into contract. The Applicant testified during the hearing that he did not renew the contract after being told by the Principal that the filling of the renewal forms was no longer important as he has been appointed permanently to the post. When the Respondent’s witness asked about the said statement, she distanced herself from the Applicant’s statement. The witness stated that she was told by the Applicant about that after the meeting with the Union. After that evidence given by the witness, the Applicant Party did not challenge or follow up the testimony given.
It was submitted during the hearing that the new organogram changed from 23 posts to 19 posts. At the school there were only two temporal Educators and both services were terminated including the Applicant’s. Others were in access while the other was transferred to the other school. Throughout the hearing the Applicant did not produce any documentary proof of him being appointed as a permanent Staff at the school’s establishment. Annexure (C) was given just as a proof of his contract’s extension.
It is evident clear that the Applicant was aware of his contract and he acted in this manner based on his personal interests. The Employer has acted inline with all the labour laws and the collective agreements within the Education Circles prior termination and at the end of the contract. The decision that caused his employment contract is well known factor and there was no way that the Employer could act against the collective resolutions. The Applicant’s submission did not influence the decision to be in his favour.
The Applicant’s application is dismissed.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 572-04/05 LP
RESPONDENT DEPARTMENT OF EDUCATION LP
NATURE UNFAIR DISMISSAL
ARBITRATOR N ENOCH
DATE OF ARBITRATION 24 FEBRUARY 2005
APPLICANT JOUBERT & MAY
1 The Applicant’s application is dismissed.