Case Number: PSES 587-11/12 LP
Applicant: Maluleke MD
Respondent: Department of Education, Limpopo
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Award Date: 16 May 2012
Arbitrator: N Cawe
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT Polokwane
Case No: PSES 587-11/12 LP
In the matter between
Maluleke M D Applicant
DEPARTMENT OF EDUCATION- Limpopo Respondent
ARBITRATOR: Ms N Cawe
HEARD: 7th May 2012
Details of hearing and representation
The matter was arbitrated on the 7th Mayl 2012 in Polokwane, Limpopo. The Applicant was represented by Mr Maswanganyi, an advocate from Polokwane. The Respondent was represented by Mrs. P Tshiohve, a labour relations officer thereof.
The issue to be decided
I have to decide whether the termination of the Applicant’s contract amounts to an unfair labour practice or not.
At the beginning of the arbitration the Respondent denied that the Applicant was dismissed. Respondent contends that the Applicant’s contract came to an end as a result of her post being declared in excess. The Applicant then bore the onus of proving that she was actually unfairly dismissed.
It is common cause that the Applicant was employed, on the 9th June 2008, as an educator at Hivuyeriwile Commercial High School. She was appointed to post number 03, a substantive post, to teach Life Orientation and Xitsonga. She was a temporary teacher. Her contract of employment was terminated on the 28th February 2011.
Survey of evidence and argument
Applicant’s version; M D Maluleke
The Applicant testified under oath as follows;
Although she was a temporary teacher her contract was continually renewed until February 2012. Towards the end of 2010 the principal, Mr Rikhotso, verbally informed her that her contract would not be renewed in 2011. Her colleagues in the District informed her that there was a circular instructing that all temporary teachers’ contracts should be renewed (Circular 46 of 2011, dated 15/03/2011).
She testified further that the principal did not give her written notice of the termination. When she returned to the school in 2011 she discovered that her name had been removed from the staff attendance register. She was not allocated any learning areas. The subjects that she previously taught were given to another educator. She referred this to SADTU and the union intervened resulting in her name being reinstated on the register and her being allowed to stay on until the end of February 2011. At the beginning of February she was given a notice of termination letter. This letter did not give the reason for the termination.
In August 2011 she referred a grievance to the Department. Her further evidence is that the principal indicated to the investigating team that when she (the Applicant) applied the post was substantive but that changed in 2009 when the staff establishment confirmed only 21 posts. She further stated that the Circuit manager told the investigating team that the circular instructed that ‘only contracts of temporary educators occupying substantive posts should be extended in 2011’. The investigating team found in favour of the Respondent. She feels that there was a vendetta against her meted out by the principal.
Among her submissions she drew the arbitration’s attention to the fact that she left a permanent job at the Department of Labour in order to join the teaching profession. She professes to love teaching dearly.
The Applicant elected not to call any witnesses to collaborate her version. She seeks retrospective reinstatement.
The Respondent’s representative opened the Respondent’s case by stating that there was no unfair dismissal of the Applicant’s contract nor was there any unfair labour practice perpetrated by the Department against the Applicant. The Respondent further argued that the Applicant was given due notice of termination in accordance with labour law.
The Respondent called Mr Rikhotso S. S. as its first witness.
He testified that;
He is the principal of the school in question. He set out how the contracts of temporary teachers are renewed according to a set formula. He also pointed out that the renewal of temporary posts is dependent on the staff establishment. This runs for two years as set out in the Department’s Collective Agreement. He informed the Applicant and other educators that their posts might be phased out.
He testified further that the school had five Xitsonga teachers whereas only three were needed. This meant that the Applicant’s contract had to be terminated as she had become an excess educator. The school is supposed to have 21 teachers but at the relevant period it had 24.
At the beginning of February 2011 she was given a contract, for a month, which she duly signed. That same month she was given a notice of termination letter.
The Respondent’s second witness was Mr Stephen Maringa. He testified that he is the Circuit manager. His duties, inter alia, include overseeing staffing of schools in his District. In the instant case the Applicant fell out of the staff establishment when rationalisation took place. He explained that where there is a permanent educator who cannot teach a subject only then can a temporary educator be appointed even if he/she is an excess educator. According to the witness temporary educators are at the mercy of the Department as circulars cut across them.
The witness testified further that the Applicant was in a substantive post but the enrolment at the school dropped and her post became non substantive. Applicant’s contract was extended in 2011 as she had not been given notice. He also pointed out that the Applicant was treated like all the other teachers in the Circuit. She was not singled out for ill-treatment.
His final say on the matter was that it is only when the Government Gazette or a Resolution of the ELRC stipulates that a substantive post occupied by a temporary educator can be converted to a permanent post that this done. In the Applicant’s case there was no Government Gazette advertisement or ELRC resolution.
The Respondent wants the referral be dismissed.
Analysis of evidence and argument
From the outset I would like to point out that the Respondent’s version was shoddily prepared and equally shoddily presented. There was confusion as to whether the Respondent was denying that the Applicant was unfairly dismissed or that there had been an unfair labour practice on its part vis a vis the Applicant. Be that as it may Mr Maringa remedied the situation by explaining how rationalisation takes place in the Department.
I agree with the Applicant’s representative that the arbitration had nothing to do with previously renewed contract, as was argued by the Respondent’s representative, but rather concerned the events surrounding the latest contract, i.e. 2010-2011. The Applicant was not informed that her contract would not be renewed in 2011. The principal only indicated, verbally, that there was a possibility that the Applicant could fall foul of rationalisation. Nothing was done in writing. The Applicant reported for duty and found that she had been removed from the staff register and had not been allocated any learning area. When her union intervened she was retained for January and February. She was given notice on the 1st February 2011 indicating that her services would be terminated at the end of February. This is rejected by her representative as sufficient notice as it was not 30 (thirty) days as, according to the representative, required by the LRA. He seems to lose sight of the fact that the LRA refers to a month’s notice and February has less than thirty days. The Respondent was within the law in stipulating that the contract would end on the 28th February as that was the last day of the month. It suffices as one month’s notice.
In 2010 the Department was at fault for not giving notice of termination to the Applicant but this was remedied when she was re-employed in 2011. She, according to her own testimony, was remunerated for three months in 2011. This means she did not suffer any prejudice because of the bungle by the Department. No one gave her the impression that her contract would be extended beyond February. Her expectations were merely her own and were not informed by the Department’s actions. She knew that she was temporary and that at some stage her contract would either be terminated or confirmed as permanent. The former happened.
Much is being made by the Applicant’s representative about there being no reason for the termination in the notice letter. There is no requirement that this should be done and the Applicant did not point the arbitration to such a provision, if one does exist. Even if such a provision existed the live evidence of Mr Maringa more than makes up for the perceived omission in the letter. The substantive reason for the termination of the Applicant’s contract was that she fell victim to rationalisation. Rationalisation is provided for in the Employment of Educators Act. It is an unfortunate reality of the temporary educator.
One has to point out further that the letter directing that contracts of temporary teachers in substantive posts be extended to the 31st March 2011 does not cover the Applicant as her post had already been made redundant. She was only retained in order to correct the anomaly of the requisite one month notice not having been given at the end of 2010.
I must point out that the fact that the Applicant left a permanent job at the Department of labour cannot be “visited” on the Department of education. It is a chance that she took voluntarily. She knew that she would be a temporary educator until confirmed or otherwise. The Rules of the Department take precedence over self- inflicted actions by educators. There is, therefore, no cogent reason to interfere with the decision of the department not to renew Applicant’s contract.
In the premises I find that there was no unfair labour practice, on the Respondent’s part, in terminating the Applicant’s contract of employment.
The referral is dismissed.
Dated at Johannesburg on this the 16th May 2012
Arbitrator: N CAWE ………………………………..