PSES623-13/14LP
PSES623-13/14LP
Award Date:
1 May 2014
Case Number: PSES623-13/14LP
Province: Limpopo
Applicant: SADTU obo Lancaster Thuli Mampuru
Respondent: Department of Education, Limpopo
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Polokwane
Award Date: 1 May 2014
Arbitrator: E Maree
EDUCATION LABOUR
RELATIONS COUNCIL
Panellist : E Maree
Case Number : PSES623-13/14LP
Date of Award : 1 May 2014
In the ARBITRATION between
SADTU obo Lancaster Thuli Mampuru
Applicant
and
Department of Education- Limpopo
Respondent
Applicant’s representative Mr. M. H. Makhafola
Applicant’s address Fax [015] 297 4648
Respondent’s representative Ms. K.P. Tshiovhe
Respondent’s address Fax 086 275 0396
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the 29th of April 2014 at the premises of the Limpopo Department of Education situated at 113 Biccard Street, Polokwane.
2. The applicant was represented by Mr. M.H. Makhafola an official from SADTU while the respondent was represented by Ms. K.P. Tshiovhe an official from Relations.
3. Bundle ‘A’’ was submitted on behalf of the applicant and bundle ‘’B’’ on behalf of the respondent. The documents were not disputed. Contained in bundle ‘’A’’ pages 19-21 were the signed pre-arbitration minutes were submitted detailing all issues as per the council’s rules.
ISSUES TO BE DECIDED
4. Whether the non-renewal of the applicant’s fixed term contract amounted to an unfair dismissal and determine appropriate relief if it does.
SURVEY OF EVIDENCE AND ARGUMENT
It is not my intention for purposes of this award to reflect verbatim the arguments/submissions/evidence that was made on record. I will only reflect the salient points of each parties arguments/submissions/evidence in so far as it has a bearing on the issue in dispute.
THE APPLICANTS EVIDENCE
5. The applicant, LANCASTER THULI MAMPURU under oath testified that:
a] He commenced employment with the respondent as an educator during 2007 and was employed on contracts that were annually renewed. His contract for 2014 had not been renewed thus amounting to an unfair dismissal;
b] During October 2012 he completed the necessary application documents in order to be appointed for 2013. This practise of completing application documents during October had been followed since 2007 by all temporary educators;
c] During 2007 – 2009 there were no problems but during 2009 things changed as the respondent issued appointment letters and contracts were renewed annually during October. As a result of this practise he completed the documents during October 2012 for appointment in 2013 and was appointed until December 2013. However, he then received a letter [bundle ‘A’’ page 14] from the circuit manager on the 15th of April 2013 that his services had been terminated;
d] He questioned this and the termination was reversed [bundle ‘A’’ page 23] and as a result of negotiations with Mr. Matlala he rendered services at Kgalapeng during October 2013 to December 2013 whilst waiting for his appointment for 2014;
e] He completed an application [bundle ‘A’’ pages 80-82] in the office of the principal of Kgalapeng. This application is also a contract of employment as this was the only document he had signed during the previous 4 years.;
f] On page 82 of the application he wrote ‘’Kgalapeng’’ for 2014 but ‘’someone’’ deleted it by using tip-ex and changed it to ‘’Bakopa Primary School’’. In paragraph B.19 he wrote ‘’Kgalapeng Village’’ but again this was deleted by ‘’some-one’’ with tip-ex and this person wrote ‘’Bakopa’’ and ‘’scratched’’ the word ‘’village. These changes were not effected by the principal but might have been done by the circuit manager or the district manager;
g] On page 78 bundle ‘A’ the word ‘’Dikgoleopong’’ was ‘’scratched’’ and the word Bakopa written;
h] He had a contract for 2013 and based on this assumed duty for 2013 during January 2013. Therefore, the document on page 78 bundle ‘A’’ is the ‘’assumption of duty ‘’ for 2014, he had signed. It was also signed by the principal of Kgalapeng;
i] This ‘’assumption of duty’’ [page 78] which he had signed for 2014 was falsified by ‘’some-one’’ in order to create the impression that it was for 2013. The proof that it was falsified is that it was signed by Mr. Tole, the principal at Kgalapeng ;
j] Bundle ‘’A’’ page 77 is signed by the chairperson of the SGB, Mr. Pokwane;
k] He rendered services during 2013 at Kgalapeng whilst waiting for his letter of appointment for 2014 and when he received it, it was again for 2013 and he thus had 2 appointment letters for 2013;
l] Bundle ‘A’’ page 15 must be for 2014 as he had an appointment letter [page 16] for 2013. Page 15 should have been for Kgalapeng but it is for Bakopa. He had completed the documents for Kgalopeng but had received 2 appointments for Bakopa;
m] After receiving this letter he approached Mr. Matlala and then learned that his application form had been changed.
THE RESPONDENT’S EVIDENCE
6. On behalf of the respondent, ROBERT MATLALA under oath testified that:
a] He is the Circuit Manager and as such knows the applicant who was a temporary educator at the circuit;
b] Page 77 bundle ‘A’ is completed by the educator when applying for a vacant post and if successful will be short listed, interviewed and appointed;
c] Page 78 of bundle ‘B’ was not changed or falsified. The applicant was appointed at Bakopa but when he had to commence duties, he refused and indicated that he ‘’would not teach at a primary school’’. The applicant then approached them and requested to be placed and he was subsequently placed at Dikgapobeng. However, as there was no post at Dikgapobeng they requested the SGB at Bakopa to ‘’loan’’ them a post which was then given to the applicant who was then deployed with the Bakopa post at Dikgapobeng as there was a ‘’desperate need’’ for educators;
d] Page 78 bundle ‘A’ was completed by the principal of Dikgabopeng and he wrote ‘’Dikgabopeng’’. The respondent informed him that it cannot be done as there was not post and that he had to write the name of the school were there was a post which in this case was Bakopa. They thus cancelled ‘’Dikgabopeng’’ and wrote ‘’Bokapa’’. Therefore, when the applicant’s contract ended he wad at Dikgabopeng in the post that was ‘’loaned’’ from Bakopa;
e] When schools closed during 2013 a directive was issued in the form of a circular that the contracts of temporary educators will only be extended if they are professionally qualified;
f] The applicant was not professionally qualified and as a result his contract was not renewed for 2014 and thus ended December 2013;
g] The applicant’s services were previously utilised due to a dire need for educators in the commercial area and the applicant had commercial qualifications [B.Comm] but no professional [teaching] qualifications;
h] The applicant who was fully aware of this, completed and signed a contract for October, November and December 2013 and page 78 bundle ‘’A’’ is not for 2014. The contracts for temporary educators for 2014 were signed during 2014;
i] If the applicant had applied for 2014 his application would have been adjudicated by the SGB and if successful would have received a contract from his office.
CLOSING ARGUMENTS
7. Oral closing arguments were submitted on behalf of both parties which have taken it into consideration during the rendering of this award.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. In terms of section 192[1] of the Labour Relations Act 66 of 1995, the onus is on an applicant to establish the existence of the dismissal which in casu was disputed. It was the respondent’s contention that the applicant was employed on a fixed term contract that expired due to the effluxion of time. Only once dismissal is proven, must the respondent, in terms of section 192[2] show that the dismissal was substantively and procedurally fair.
9. Section 186[1] [b] of the Labour Relations Act 66 of 1995 defines ‘dismissal’ as follows:
‘’an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it’’.
10. A termination of a fixed term contract will therefore only be regarded as a dismissal if the employee had a reasonable expectation that it would be renewed.
11. The crux of the applicant’s evidence was that he had completed – as was practise – during October 2013 an application form for appointment during 2014.
12. This evidence was reiterated on the applicant’s behalf during closing arguments when it was argued that the respondent ‘’had raised’’ the applicant’s expectations of renewal as he had filled in his ‘’assumption of duty’’ during October 2013 and due to the fact that this had always been the practise, assumed that he would work during 2014.
13. The applicant testified that bundle ‘’A’’ pages 80 – 82 contain his application for appointment for 2014 which he had completed ‘’in the office of the principal of Kgalapeng’’ and contended that the application is also a contract of appointment and further claimed that certain information on the form had been changed.
14. It was further submitted by the applicant that page 78 bundle ‘’A’’ is the ‘’assumption of duty’’ for 2014 which he and the principal of Kgalapeng signed. This application however, was falsified ‘’to look as if it is for 2013’’. The fact that this form was falsified if proven by the fact that it was also signed by Mr. Tole, the principal of Kgalapeng.
15. It was contended on behalf of the respondent that page 78 bundle ‘A’’ is not a contract for 2014 and that it was not changed or falsified. The applicant only completed and signed a contract from October 2013 to December 2013.
16. Did the applicant have a reasonable expectation that his contract would be renewed? This needs to be determined objectively in other words were the circumstances such that a reasonable person would have expected the contract to be renewed on the same or similar terms?
17. The most obvious considerations in this regard are past practise and prior promise. The more frequently a contract is renewed the more reasonable is the expectation of the employee that it be renewed in future. It becomes likely that repeated renewals would reinforce the impression that the relationship had become permanent.
18. In determining if the termination of a fixed term contract constitutes a dismissal regard must also be had to the nature of the employee’s expectation.
19. In terms of section 186[1] [b] it is required that the employee must expect the employer to renew the contract on the same or similar terms. It has been held in Dierks v University of South Africa [1999] 20 ILJ 1227 [LC] that the expectation of renewal does not include the expectation that the contract be renewed on a permanent basis.
20. In terms of the pre-arbitration minutes, it was common cause that the applicant had been employed from January 2013 on a fixed term contract that expired in December 2013 as a temporary educator.
21. The applicant’s expectation of the renewal of the contract for 2014 is based on the fact that he had completed an ‘’assumption of duty’’ as per page 78 of bundle ‘’A’’. It was submitted that completion of this form also constitutes a contract of employment based on the fact that since 2007 this was the only form to be completed.
22. The applicant was questioned about this form and asked to point out where it states that it indicates an appointment for 2014. The applicant could not do so and claimed that his information had been changed but reiterated that the principal also confirmed it was for 2014. The principal however, was not called to testify to confirm this.
23. Having studied the applicant’s documents no proof could be found that it confirms an appointment for 2014. Although the applicant contented that this document was also an employment contract for 2014 he also stated that he ‘’waited’’ for his letter of appointment for 2014. Why ‘’wait’’ for such document if the ‘’assumption of duty’’ is also a contract of employment? The only reason why a person would ‘’wait’’ for a letter of appointment is because such a person has knowledge that the mere completion of documents did not automatically confirm employment, especially as appointment letters have also been given for previous years of employment after the completion, submission and acceptance of an application form.
24. Undisputed evidence on behalf of the respondent was that contracts of temporary educators would not be extended if they are not professionally qualified and as the applicant was not, his contract was not extended.
25. Page 78 which is the ‘’assumption of duty’’ form states that it can only be completed if the educator has accepted the contract. There is no proof that the applicant has accepted a contract for 2014 and it is thus unclear how he could have regarded this document as creating an expectation of employment for 2014.
26. It further states that the principal must ensure that it is completed on the day the educator assumes his duties. If this form was thus for 2014 it would have been signed in January 2014. The form is signed on the 4th of October 2013 apparently by the principal. This then confirms the respondent’s evidence that the applicant was employed for the period October 2013 to December 2013.
27. The applicant failed to convince me that the ‘’assumption of duty’’ portrayed on page 78 of Bundle ‘’A’’ was his contract for 2014 or that it created an expectation of employment for 2014.
FINDING
28. The applicant failed to discharge the onus in proving that he had an expectation of renewal of his contract for 2014 and that the failure to do so amounted to an unfair dismissal.
AWARD
29. In view of this the dispute is dismissed.
DATED AT PRETORIA ON THIS 1st DAY OF MAY 2014
PANELIST
E MAREE
Province: Limpopo
Applicant: SADTU obo Lancaster Thuli Mampuru
Respondent: Department of Education, Limpopo
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Polokwane
Award Date: 1 May 2014
Arbitrator: E Maree
EDUCATION LABOUR
RELATIONS COUNCIL
Panellist : E Maree
Case Number : PSES623-13/14LP
Date of Award : 1 May 2014
In the ARBITRATION between
SADTU obo Lancaster Thuli Mampuru
Applicant
and
Department of Education- Limpopo
Respondent
Applicant’s representative Mr. M. H. Makhafola
Applicant’s address Fax [015] 297 4648
Respondent’s representative Ms. K.P. Tshiovhe
Respondent’s address Fax 086 275 0396
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the 29th of April 2014 at the premises of the Limpopo Department of Education situated at 113 Biccard Street, Polokwane.
2. The applicant was represented by Mr. M.H. Makhafola an official from SADTU while the respondent was represented by Ms. K.P. Tshiovhe an official from Relations.
3. Bundle ‘A’’ was submitted on behalf of the applicant and bundle ‘’B’’ on behalf of the respondent. The documents were not disputed. Contained in bundle ‘’A’’ pages 19-21 were the signed pre-arbitration minutes were submitted detailing all issues as per the council’s rules.
ISSUES TO BE DECIDED
4. Whether the non-renewal of the applicant’s fixed term contract amounted to an unfair dismissal and determine appropriate relief if it does.
SURVEY OF EVIDENCE AND ARGUMENT
It is not my intention for purposes of this award to reflect verbatim the arguments/submissions/evidence that was made on record. I will only reflect the salient points of each parties arguments/submissions/evidence in so far as it has a bearing on the issue in dispute.
THE APPLICANTS EVIDENCE
5. The applicant, LANCASTER THULI MAMPURU under oath testified that:
a] He commenced employment with the respondent as an educator during 2007 and was employed on contracts that were annually renewed. His contract for 2014 had not been renewed thus amounting to an unfair dismissal;
b] During October 2012 he completed the necessary application documents in order to be appointed for 2013. This practise of completing application documents during October had been followed since 2007 by all temporary educators;
c] During 2007 – 2009 there were no problems but during 2009 things changed as the respondent issued appointment letters and contracts were renewed annually during October. As a result of this practise he completed the documents during October 2012 for appointment in 2013 and was appointed until December 2013. However, he then received a letter [bundle ‘A’’ page 14] from the circuit manager on the 15th of April 2013 that his services had been terminated;
d] He questioned this and the termination was reversed [bundle ‘A’’ page 23] and as a result of negotiations with Mr. Matlala he rendered services at Kgalapeng during October 2013 to December 2013 whilst waiting for his appointment for 2014;
e] He completed an application [bundle ‘A’’ pages 80-82] in the office of the principal of Kgalapeng. This application is also a contract of employment as this was the only document he had signed during the previous 4 years.;
f] On page 82 of the application he wrote ‘’Kgalapeng’’ for 2014 but ‘’someone’’ deleted it by using tip-ex and changed it to ‘’Bakopa Primary School’’. In paragraph B.19 he wrote ‘’Kgalapeng Village’’ but again this was deleted by ‘’some-one’’ with tip-ex and this person wrote ‘’Bakopa’’ and ‘’scratched’’ the word ‘’village. These changes were not effected by the principal but might have been done by the circuit manager or the district manager;
g] On page 78 bundle ‘A’ the word ‘’Dikgoleopong’’ was ‘’scratched’’ and the word Bakopa written;
h] He had a contract for 2013 and based on this assumed duty for 2013 during January 2013. Therefore, the document on page 78 bundle ‘A’’ is the ‘’assumption of duty ‘’ for 2014, he had signed. It was also signed by the principal of Kgalapeng;
i] This ‘’assumption of duty’’ [page 78] which he had signed for 2014 was falsified by ‘’some-one’’ in order to create the impression that it was for 2013. The proof that it was falsified is that it was signed by Mr. Tole, the principal at Kgalapeng ;
j] Bundle ‘’A’’ page 77 is signed by the chairperson of the SGB, Mr. Pokwane;
k] He rendered services during 2013 at Kgalapeng whilst waiting for his letter of appointment for 2014 and when he received it, it was again for 2013 and he thus had 2 appointment letters for 2013;
l] Bundle ‘A’’ page 15 must be for 2014 as he had an appointment letter [page 16] for 2013. Page 15 should have been for Kgalapeng but it is for Bakopa. He had completed the documents for Kgalopeng but had received 2 appointments for Bakopa;
m] After receiving this letter he approached Mr. Matlala and then learned that his application form had been changed.
THE RESPONDENT’S EVIDENCE
6. On behalf of the respondent, ROBERT MATLALA under oath testified that:
a] He is the Circuit Manager and as such knows the applicant who was a temporary educator at the circuit;
b] Page 77 bundle ‘A’ is completed by the educator when applying for a vacant post and if successful will be short listed, interviewed and appointed;
c] Page 78 of bundle ‘B’ was not changed or falsified. The applicant was appointed at Bakopa but when he had to commence duties, he refused and indicated that he ‘’would not teach at a primary school’’. The applicant then approached them and requested to be placed and he was subsequently placed at Dikgapobeng. However, as there was no post at Dikgapobeng they requested the SGB at Bakopa to ‘’loan’’ them a post which was then given to the applicant who was then deployed with the Bakopa post at Dikgapobeng as there was a ‘’desperate need’’ for educators;
d] Page 78 bundle ‘A’ was completed by the principal of Dikgabopeng and he wrote ‘’Dikgabopeng’’. The respondent informed him that it cannot be done as there was not post and that he had to write the name of the school were there was a post which in this case was Bakopa. They thus cancelled ‘’Dikgabopeng’’ and wrote ‘’Bokapa’’. Therefore, when the applicant’s contract ended he wad at Dikgabopeng in the post that was ‘’loaned’’ from Bakopa;
e] When schools closed during 2013 a directive was issued in the form of a circular that the contracts of temporary educators will only be extended if they are professionally qualified;
f] The applicant was not professionally qualified and as a result his contract was not renewed for 2014 and thus ended December 2013;
g] The applicant’s services were previously utilised due to a dire need for educators in the commercial area and the applicant had commercial qualifications [B.Comm] but no professional [teaching] qualifications;
h] The applicant who was fully aware of this, completed and signed a contract for October, November and December 2013 and page 78 bundle ‘’A’’ is not for 2014. The contracts for temporary educators for 2014 were signed during 2014;
i] If the applicant had applied for 2014 his application would have been adjudicated by the SGB and if successful would have received a contract from his office.
CLOSING ARGUMENTS
7. Oral closing arguments were submitted on behalf of both parties which have taken it into consideration during the rendering of this award.
ANALYSIS OF EVIDENCE AND ARGUMENT
8. In terms of section 192[1] of the Labour Relations Act 66 of 1995, the onus is on an applicant to establish the existence of the dismissal which in casu was disputed. It was the respondent’s contention that the applicant was employed on a fixed term contract that expired due to the effluxion of time. Only once dismissal is proven, must the respondent, in terms of section 192[2] show that the dismissal was substantively and procedurally fair.
9. Section 186[1] [b] of the Labour Relations Act 66 of 1995 defines ‘dismissal’ as follows:
‘’an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it’’.
10. A termination of a fixed term contract will therefore only be regarded as a dismissal if the employee had a reasonable expectation that it would be renewed.
11. The crux of the applicant’s evidence was that he had completed – as was practise – during October 2013 an application form for appointment during 2014.
12. This evidence was reiterated on the applicant’s behalf during closing arguments when it was argued that the respondent ‘’had raised’’ the applicant’s expectations of renewal as he had filled in his ‘’assumption of duty’’ during October 2013 and due to the fact that this had always been the practise, assumed that he would work during 2014.
13. The applicant testified that bundle ‘’A’’ pages 80 – 82 contain his application for appointment for 2014 which he had completed ‘’in the office of the principal of Kgalapeng’’ and contended that the application is also a contract of appointment and further claimed that certain information on the form had been changed.
14. It was further submitted by the applicant that page 78 bundle ‘’A’’ is the ‘’assumption of duty’’ for 2014 which he and the principal of Kgalapeng signed. This application however, was falsified ‘’to look as if it is for 2013’’. The fact that this form was falsified if proven by the fact that it was also signed by Mr. Tole, the principal of Kgalapeng.
15. It was contended on behalf of the respondent that page 78 bundle ‘A’’ is not a contract for 2014 and that it was not changed or falsified. The applicant only completed and signed a contract from October 2013 to December 2013.
16. Did the applicant have a reasonable expectation that his contract would be renewed? This needs to be determined objectively in other words were the circumstances such that a reasonable person would have expected the contract to be renewed on the same or similar terms?
17. The most obvious considerations in this regard are past practise and prior promise. The more frequently a contract is renewed the more reasonable is the expectation of the employee that it be renewed in future. It becomes likely that repeated renewals would reinforce the impression that the relationship had become permanent.
18. In determining if the termination of a fixed term contract constitutes a dismissal regard must also be had to the nature of the employee’s expectation.
19. In terms of section 186[1] [b] it is required that the employee must expect the employer to renew the contract on the same or similar terms. It has been held in Dierks v University of South Africa [1999] 20 ILJ 1227 [LC] that the expectation of renewal does not include the expectation that the contract be renewed on a permanent basis.
20. In terms of the pre-arbitration minutes, it was common cause that the applicant had been employed from January 2013 on a fixed term contract that expired in December 2013 as a temporary educator.
21. The applicant’s expectation of the renewal of the contract for 2014 is based on the fact that he had completed an ‘’assumption of duty’’ as per page 78 of bundle ‘’A’’. It was submitted that completion of this form also constitutes a contract of employment based on the fact that since 2007 this was the only form to be completed.
22. The applicant was questioned about this form and asked to point out where it states that it indicates an appointment for 2014. The applicant could not do so and claimed that his information had been changed but reiterated that the principal also confirmed it was for 2014. The principal however, was not called to testify to confirm this.
23. Having studied the applicant’s documents no proof could be found that it confirms an appointment for 2014. Although the applicant contented that this document was also an employment contract for 2014 he also stated that he ‘’waited’’ for his letter of appointment for 2014. Why ‘’wait’’ for such document if the ‘’assumption of duty’’ is also a contract of employment? The only reason why a person would ‘’wait’’ for a letter of appointment is because such a person has knowledge that the mere completion of documents did not automatically confirm employment, especially as appointment letters have also been given for previous years of employment after the completion, submission and acceptance of an application form.
24. Undisputed evidence on behalf of the respondent was that contracts of temporary educators would not be extended if they are not professionally qualified and as the applicant was not, his contract was not extended.
25. Page 78 which is the ‘’assumption of duty’’ form states that it can only be completed if the educator has accepted the contract. There is no proof that the applicant has accepted a contract for 2014 and it is thus unclear how he could have regarded this document as creating an expectation of employment for 2014.
26. It further states that the principal must ensure that it is completed on the day the educator assumes his duties. If this form was thus for 2014 it would have been signed in January 2014. The form is signed on the 4th of October 2013 apparently by the principal. This then confirms the respondent’s evidence that the applicant was employed for the period October 2013 to December 2013.
27. The applicant failed to convince me that the ‘’assumption of duty’’ portrayed on page 78 of Bundle ‘’A’’ was his contract for 2014 or that it created an expectation of employment for 2014.
FINDING
28. The applicant failed to discharge the onus in proving that he had an expectation of renewal of his contract for 2014 and that the failure to do so amounted to an unfair dismissal.
AWARD
29. In view of this the dispute is dismissed.
DATED AT PRETORIA ON THIS 1st DAY OF MAY 2014
PANELIST
E MAREE