Case Number: PSES 442-10/11LP
Applicant: SADTU OBO BR Mathabatha
Respondent: Department of Education, Limpopo
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 3 May 2011
Arbitrator: Khabo Mamba
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Commissioner: Khabo Mamba
Case No.: PSES 442-10/11LP
Date of Award: 3 May 2011
In the ARBITRATION between:
SADTU OBO BR MATHABATHA
(Union / Applicant)
LIMPOPO DEPARTMENT OF EDUCATION
1 DETAILS OF HEARING AND REPRESENTATION
The arbitration hearing was held on 16 May 2011 at the respondent’s premises in Polokwane. The applicant, Mr. BR Mathabatha, was represented by Mr M Legodi a SADTU official and the respondent, Limpopo Department of Education, was represented by Mr. MK Masindi its Employee Relations Officer.
The parties agreed to submit written closing arguments by close of business 23 May 2011. To date I have not received the applicant’s closing arguments. I have exercised my discretion and proceeded with the award in the absence of the applicant’s closing arguments as he, in the absence of any explanation for failing to submit same, has waived his right to do so.
2 THE ISSUE TO BE DECIDED
I am to determine whether there the applicant was dismissed. If dismissal is established I am to determine whether it was substantively and procedurally fair.
3 PRELIMINARY ISSUES
None were raised.
The applicant was employed as a temporal educator on a 3 month fixed term contract. His last contract expired on 31 March 2010. On 1 April 2010, the
applicant did not report to work he was hospitalized up until September 2010. His contract was not renewed/extended.
This is the basis of the applicant’s unfair dismissal claim.
5 SUMMARY OF SUBMISSIONS AND ARGUMENT
This is a summary of the parties’ evidence. The entire proceedings were mechanically recorded therefore I do not intend repeating their evidence verbatim; I have merely highlighted the evidence that I deem relevant.
The essence of the applicant’s version was that he had a reasonable expectation that his contract would be renewed and or extended on 1 April 2010, however the respondent failed to do so and told him his post was no longer available.
The applicant further contended that the respondent did not follow a procedure in that he was not given formal notice that his contract would not the renewed/extended.
Under cross examination, the applicant stated that he had been told that his contract had not been renewed/extended because his post was no longer there.
The essence of the respondent’s version, through the testimony of two witnesses namely Mr KJ Mokgokong (hereinafter referred to as Mokgokong ) Circuit Manager of Nokotlou Mrs L M Mlaba (hereinafter referred to as Mlaba) Acting principal at Rametsedi School where the applicant was employed and through a bundle of documents which were submitted and admitted into evidence, was that the applicant’s contract could not be renewed/extended because of Post Establishment of CS Educators circular, which stipulated substantive posts for all schools. According to the Post Establishment for the year 2010/2011 there were only 6 posts for teachers at Rametsedi, the applicant’s contract could not, therefore, be renewed/extended because he was the 7th teacher and he was the only temporal teacher at the school. As per this Post Establishment, his post was therefore no longer there. His post was catered for in the 2009/2010 Post Establishment as there were 7 posts of that school.
Furthermore, at the time when the Post Establishment in question came to their attention, the applicant had been hospitalized which prevented him from coming to the school to have his contract renewed/extended in any event.
Under cross examination both witnesses consistently maintained that the applicant’s contract had not been renewed/extended mainly because his post was no longer there in terms of the Post Establishment of CS Educators and secondly he never presented himself for the renewal/extention of his contract due to his hospitalization.
They further denied that there was ever a circular automatically extending all temporal teachers contract to end March 2011.
6 ANALYSIS OF EVIDENCE AND ARGUMENT
It is well established law that the applicant bears the onus of proving that he had a reasonable expectation that his contract would be renewed/extended. In proving this the applicant would be able to establish dismissal. If dismissal is established the onus shifts to the respondent to prove that the dismissal was both substantively and procedurally fair.
Based on the evidence that was presented before me, I am of the view that the applicant has been unable to discharge his onus. There is insufficient evidence before me proving that he had a reasonable expectation that his contract would be renewed/extended. The only evidence before me was that he was fully aware that he was on a fixed term contract and that it had not been renewed/extended because his post was no longer provided for in the Post Establishment of CS Educators for 2010/2011. It can not be said, in my view that he had a reasonable expectation of renewal/extention when his post no longer existed.
Furthermore, his contract could not have been renewed/extended as he had not presented himself to school on 1 April 2010 for its renewal/extention due to his hospitalization.
There was absolutely no evidence of anyone having promised him that his contract would be renewed/extended despite the Post Establishment in question. The circular his representative alluded to during the cross-examination of the respondent’s witnesses was never submitted as evidence despite the fact that the matter stood down for approximately an hour to enable to them to get hold of it.
It is for the above mentioned reasons that I find that the applicant has failed to discharge his onus and prove the existence of dismissal.
The applicant has not been able to prove the existence of dismissal
His unfair dismissal dispute is dismissed.
No order as to costs is made.
(Name of Arbitrator) Signed