Case Number: PSES409-10/11
Province: Western Cape
Applicant: Zamile August
Respondent: Department of Education, Western Cape
Issue: Unfair Dismissal - Constructive Dismissal
Venue: Cape Town
Award Date: 12 June 2011
Arbitrator: Bella Goldman
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
Case No PSES409-10/11
In the matter between
Zamile August Applicant
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 10 June 2011
DELIVERED: 12 June 2011
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held at the Cape Town offices of the CCMA on 10 June 2011. The applicant presented his own case. Mr Mandisi, Labour Relation’s Officer represented the respondent. The proceedings were recorded.
ISSUE TO BE DECIDED
2. I have to decide whether or not the applicant’s termination of contract amounted to an unfair dismissal in terms of the Labour Relations Act 1995 as amended (LRA).
BACKGROUND TO THE ISSUE
3. The applicant was employed as an educator at Langubuya High School from 1 January 2010 until 31 December 2011 on a fixed term contract. He was earning about R17, 700 per month. The applicant’s case is that he had a reasonable expectation that his contract would be renewed on the same or similar terms. The applicant is not disputing that he applied unsuccessfully for a permanent at post at the school for a post that included some of his functions.
4. The applicant has been employed as an educator since 25 March 2011 and is claiming compensation in the amount of three months.
SURVEY OF THE EVIDENCE AND ARGUMENT
5. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
6. The respondent submitted the contract and the advertisement for the post the applicant applied for. They were agreed as being what they purported to be.
7. The parties gave evidence under oath. The applicant gave evidence and the respondent called two witnesses: Ms Nonzwakzi Ndzuzo, Principal and Mr Dalindyebo Fiki, Deputy Principal. The following is a summary of their testimonies:
8. The applicant was employed to teach maths to 4 grade 7 classes. He was also class teacher to a grade 7 class. He also taught Economic Management Science. At the end of the year no one told him that his contract would not be renewed. He also stated that when he was employed no one told him that he would be employed for more than a year. The applicant’s case is also based on the fact that the work still remains to be done.
9. The applicant also stated that he did apply for an advertised post in the Bulletin but that he was not aware that it was his post. He maintained that it was not his post even though the advertised post included some of his functions. It also included additional functions such as teaching grade 6 classes and teaching Natural Science. Further the advertised post was for the intermediate phase and he did not teach that phase. The applicant stated that at the end of his contract he had a reasonable expectation that his contract would be renewed and that the advertised post was not his post. The applicant denied being at the below mentioned briefing when the advertised post was mentioned.
10. The applicant stated that the respondent did not inform him that his contract would be renewed but the fact that he was doing the work and that it needed to be done gave him the expectation.
11. The respondent’s witnesses denied that they gave the applicant any expectation that his contract would be renewed at any time. They stated that in November 2010 when the post was advertised in the bulletin they informed all staff members of the advertisement and that they could apply. They stated that the applicant did apply for the post and was not short listed. They stated that the functions of the post to all intents were to all intents and purposes those of the post the applicant occupied and that his must have known that it was his post that was advertised. The parties submitted argument in support of their respective cases which I will refer to where necessary in my analyses.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
12. In terms of the LRA the applicant must prove that hat he had a reasonable expectation to have his contract renewed, once he has proved the expectation the respondent must prove the fairness.
13. In terms of the evidence before me the applicant has not proved that he had a reasonable a expectation of renewal for the following reasons:
· No one told the applicant that his contract would be renewed at any time;
· The fact that the work is there is not true as it is now being done by some one else.
· The employer is entitled to fill the post permanently and did and the applicant applied for the post indicating that he was aware that his contract came to an end
14. I thus find that the respondent did not create an expectation that the applicant’s contract would be renewed and hence there was no dismissal.
15. There was no dismissal and the referral is dismissed.
________________________________ Arbitrator/Panellist: ELRC