Case Number: PSES 81-13/14 GP
Applicant: Musa Hans Mnisi
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 9 October 2013
Arbitrator: MA Hawyes
PSES 81-13/14 GP
Date of Award:
9 October 2013
In the ARBITRATION between
Musa Hans Mnisi
Department of Education – Gauteng
P.O Box 469
071 337 3152
Ms G. Mabeta
Private Bag X7710
011- 355 0461
011- 355 0466/086 612 8474
DETAILS OF HEARING AND REPRESENTATION
The case was scheduled for arbitration in Tshwane on the 3 October 2013.
Applicant represented himself.
Ms. G Mabeta represented the Respondent.
ISSUE IN DISPUTE
Whether Council has jurisdiction to hear this dispute!
BACKGROUND TO THE ISSUE IN DISPUTE
Respondent appointed the Applicant as a temporary educator at the Laezoni Primary School for a period of time together with other temporary educators.
After assessing the total number of pupils and the education requirements of the school Respondent decided to absorb some of the other temporary educators into the permanent post establishment. Applicant was not one of the temporary educators absorbed and his temporary contract of employment was not renewed at the end of 2012.
SURVEY OF APPLICANT’S ARGUMENT
Applicant contended that in terms of the provisions of Departmental Circular no 9 of 2012 he too should have been absorbed as a permanent educator at the school and the Respondent’s failure to appoint him permanently was unfair.
Applicant was completely unsure how his dispute should be categorized.
SURVEY OF RESPONDENT’S ARGUMENT
Ms. Mbete challenged the jurisdiction of the Council to hear this dispute on the basis that Circular no 9 of 2012 did not deal specifically with Applicants situation and matters of absorption went beyond the scope of the Council to adjudicate.
ANALYSIS OF SUBMISSIONS
It is not clear how Applicant intends this dispute to be categorized but there are in essence only two options by which it may be categorized.
The first relates to a possible unfair dismissal i.t.o section 186 (1) (b) of the LRA on the premise that the Applicant had an expectation that he would be permanently employed by the Respondent.
The second relates to a possible unfair labor practice i.t.o section 186 (2) of the LRA. The second may be quickly dispensed with. At the time Applicant lodged the dispute with the Council he was no longer employed by the Respondent and his dispute does not fall within one of the sub-categories for an unfair labor practice mentioned in section 186 (2).
The Labor Appeal Court recently ruled that the expectation contained in section 186 (1) of the LRA only relates to a reasonable expectation that a temporary contract will be renewed on the same or similar terms and not to an expectation of permanent employment. In the former instance the matter may be arbitrated. In the latter instance only the Labor Court has jurisdiction to hear the dispute.
If Applicant wishes to prove that he had a legitimate right to be permanently absorbed by the school he will have to refer his dispute to the Labor Court.
The Council does not have jurisdiction to arbitrate the dispute and the case is dismissed at this forum.
No order as to costs is made.
9 Octoberk 2013