Case Number: PSES 439-12/13 LP
Applicant: M E Lebepe
Respondent: Department of Education, Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 4 June 2013
Arbitrator: R I Mac Gregor
Award Date: 04 June 2013
Case Number: PSES 439-12/13 LP
Panellist: R I Mac Gregor
Date of Hearing: 27th May 2013
Venue: Department of Education-Polokwane
Applicant M E Lebepe represented by K Nchawpe
Telephone: 072 851 5545
Fax No: 086 511 7163
Respondent: Department of Education-Limpopo
Representative: T Netshitungulu
Telephone: 012 290 9406
Fax No: 086 611 8194
Details of the hearing
The matter was heard on the 27th May 2013 at the Departments offices in Polokwane
Ms Mokoena was excused from the hearing as she no longer had an interest in the outcome as she had been transferred from the post in question.
The Applicant was an educator at Matshwi School since September 2011. The Applicant was dismissed on the 11th October 2012 whilst earning R 16000.00 per month. He argued that he had applied for a position at post level 1 for post No 4 but was persuaded to accept another post No 19 which was not a substantive post. His contract was renewed several times and the employer created the expectation that his contract would be renewed. He wishes retrospective reinstatement.
The Respondent argued the Applicant was appointed on a temporary basis until the incumbent of the post returned. The Applicant had no right to a permanent position. They explained that the job posting had a typing error in the post number but the Applicant was well aware of the fact that she occupied post no 4 which she acknowledged in her contract on at least two occasions. She was well aware that the post had been filled.
Summary of evidence and argument
Ms M L Lebebe testified as follows:
On the 5th August 2011 the Applicant was advised that she was temporarily appointed as HOD at Matshwi Primary School up until 31st December 2011. She assumed her duties on the 9thSeptember 2011.At the beginning of November 2011 she was asked to sign for an extension for three months. In February 2012 she was given another extension. In April she signed a further contract to the end of June 2012. She continued to work after June but was not paid up until 7th September 2012. On the 10th September 2012 the circuit manager called to see her and undertook to place her at another school. He also assured her that they were working on getting her paid. This never happened. On the 11th October 2012 the circuit manager met with the School Management team and the principal. She was advised that she was in a promotional post held for another educator. They had looked for an alternative post but were unable to secure one for her. Her services were then formally terminated. None of the termination procedures were followed. The Applicant said that the interviews she attended in 2011 were for post no 4 but she was told to fill in post 19 on her contracts. She did as instructed. She conceded that she did this four times. She denied being told that the post was actually post 19. The R&R Policy did not exist at the time of her application or appointment.
Mr G Mabulana, a general worker and a member of the SGB, testified as follows:
He said that he was part of the selection panel that appointed the Applicant. He was not a member of the short listing panel although he signed that he was. He could not explain this anomaly. He said that they had interviewed the applicant for Post No 4. He denied that he knew the Applicant personally or that she was related to him in any way. He could not recall the process at all.
Mr D Boke, the principal of the school, testified as follows:
He confirmed that on the 2nd August 2011 Post No 4 had been filled by M V Mokoena when the previous incumbent retired. He said that the post could not be advertised again as it had been filled. He said that the post advertised as no 4 was in fact post no 19. He said that the Applicant never brought any difficulty to his attention. The first he knew about the grievance was when the circuit manager advised him that he was terminating her services. He said that he had explained the extensions to the Applicant who seemed happy with the arrangements.
The Applicant argued as follows: The Applicant had successfully applied for a post at the school. She had signed several renewal contracts. She had been assured that her interests were being looked after and was allowed to continue working for some three and a half months without pay. No fair procedure was followed to terminate her services as required by the Labour Relations Act No 66 of 1995. The Applicant had a legitimate expectation of long service and should be retrospectively reinstated.
The Respondent argued that the Applicant was appointed on a fixed term contract that was consistently renewed before the last contract terminated. The conditions of the contract were explained to her and she was always aware of the nature of the post she occupied and could therefore never have expected to be permanently appointed. The contract of the employee terminated and was not renewed as there was no vacancy. The case should be dismissed.
Analysis of evidence and argument
The Applicant argued that she had a realistic/legitimate expectation of renewal. She acknowledged that she was aware that the post she was acting in was a promotional post and that it had been assigned to another educator. She had her contract renewed on four occasions and each time she filled in the number of the post in which she was being appointed. The Principal testified that the conditions for the extensions were explained to the Applicant. The only reason the Applicant may have had an expectation was that she continued work without pay after June 2012. No reasonable explanation was given why she continued working for three months without salary and no concern was expressed that her contract had not been renewed as it had been on four previous occasions.
In the case of NUMSA obo Mnyakeni v Janong Security Services CC  the employer renewed the fixed term agreement more than once. The commissioner confirmed that an expectation must be created which relies on the facts. The respondent employed the applicant employee on three successive fixed-term contracts, all identically worded. Each contract provided, inter alia, that the employee would acquire no expectation of permanent employment if the contract were to be renewed, and that non-renewal would not constitute a retrenchment. When the respondent indicated that the contract would not be renewed a fourth time, the employee claimed that he had been unfairly dismissed. The commissioner found that, although the union had claimed that the employee’s contract had been terminated on notice, the dispute was really over whether the employee had a reasonable expectation that the contract would be renewed.
The common law position that a contract concluded for a stipulated period expires at the end of that period has not been changed by legislation. In addition, to showing a subjective expectation that a contract will be renewed, an employee claiming a legitimate expectation for the renewal of a contract must adduce objective evidence of that expectation i.e. he must prove the existence of facts which, in the ordinary course, would lead a reasonable person to anticipate renewal. The clear basis for a legitimate expectation is if a promise of renewal had been made. In the present matter, there was no evidence of either and implied or express promise made by a person who had the authority to make such a promise. (Source: Johanette Rheeder, firstname.lastname@example.org)
In this case there was no evidence that the circuit inspector actually made any undertakings and the issue of outstanding salary was never canvassed with the Principal. No grievance was lodged regarding the interviewing and appointment processes. The Applicant failed to convince me that she had a reasonable or legitimate expectation that her contract would be renewed.
The case is dismissed and the file ordered closed.
R I Mac Gregor
04 June 2013