Case Number: PSES 282 – 13/14 GP
Applicant: Ms. TR Mashike
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 5 September 2014
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION
Ms. TR MASHIKE “the Applicant”
DEPARTMENT OF EDUCATION – NORTH WEST PROVINCE “the 1st Respondent”
Ms. M Ndou “the 2nd Respondent”
Mr. MF Muoki “the 3rd Respondent”
Case Number: PSES 282 – 13/14 GP
Date of arbitration: 3 July 2014
Date of award: 5 September 2014 (extension arranged)
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
The last date of the hearing of the arbitration took place on 3 July 2014 at the offices of the Gauteng Department of Education in Johannesburg. The Applicant is Ms. TR Mashike. She was initially represented by a SADTU official, Mr. T Mukhuswani. On the last two days of the hearing he failed to attend without a reasonable excuse, and it was ruled that the matter proceed in his absence, after one postponement was allowed. The Applicant then elected to proceed without representation. The 1st Respondent is the Gauteng Department of Education, represented by Ms. M Jaffer. The 2nd Respondent is Ms. C Ndou and the 3rd Respondent is Mr. MF Muoki. Both elected not to be represented.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the alleged unfair dismissal dispute by the Applicant.
The Respondent disputes that the Applicant was dismissed, as her fixed term contract expired automatically. Therefore the issue in dispute is whether the termination of the Applicant’s employment falls within the definition of dismissal as defined in section 186 of the Labour Relations Act, no. 66 of 1995.
The parties also agreed on the following:
To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
To empower the arbitrator to award an appropriate remedy.
The Applicant submitted documents contained in bundle A, pages 1 and 2. The Respondent submitted documents contained in bundle B, pages 1 to 34.
The Applicant stated in her opening statement that her contract was terminated prematurely. The Applicant seeks reinstatement as remedy. The 1st Respondent stated in opening that the Applicant was appointed in a substantive vacant post on a fixed term contract that expired on 30 June 2013, as confirmed by the Applicant’s own evidence in A2. There was no unfair dismissal.
SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a summary of the Applicant’s and Respondent’s witnesses’ evidence follows below.
REBECCA MASHIKE, the Applicant, testified that she joined the Department of Education in April 2012 at Cosmo City Secondary School, until June 2013. The principal informed that there will be termination of contracts. He said new heads of department will be appointed, and if one of them teaches Setswana, the Applicant will have to go. The principal gave terminations forms to six of them to complete, including the 2nd and 3rd Respondents. The Applicant told the principal that a person by the name of James Makalimela in the HR department showed her on the computer that her contract will end in December 2013. The principal told her that according to his information her contract expired end of June 2013. He told her that she can take further steps if she wished to do so, and if she did not sign the termination form, HR will sign on her behalf. She then signed the termination form along with the others because she felt threatened. The principal said he will call whoever he wanted to return. She worked as substitution at Witkoppen Primary School for the months of August to November 2013. During cross – examination she testified that the principal told her in March 2013 that her contract will end June 2013. She went to the district offices where James told her that her contract will end December 2013. The principal did tell her that the post will be filled after June 2013. James did not tell her anything about the filling of the post. The principal did give her a reason why her contract would expire at the end of June 2013. He said it was due to curriculum needs. She did not complete an application for the period June to December 2013. The principal was her supervisor. The principal never gave her a contract until December 2013. He told her that her contract will end June 2013. She agreed that James did not have the authority and could not extend her contract, only the principal could. She chose to believe James because the principal was arrogant. She agrees that she was not under any threat when she signed the termination form. She knew her contract would expire at the end of June 2013 but she was hoping the principal would recall her. She agrees that everything, except what James told her, indicated that her contract would expire end of June 2013, and that James did not have the authority to extend her contract. She agrees that she did not have a legitimate expectation, but she referred the dispute because she wants a post.
None of the three Respondents called witnesses or testified.
SUMMARY OF ARGUMENT
APPLICANT submitted the following in her closing arguments:
She relied on what James told her. She would like to have a post, or be compensated for the period June to December 2013.
1st RESPONDENT submitted the following in its closing arguments:
There was no dismissal. The Applicant’s contract came to a natural end.
She has no right to compensation. She agrees that she was employed on a fixed term contract.
The Applicant admitted that she had no legitimate expectation, and that she relied on the word of James, but she did not call him as witness. There was no need for the Respondents to present evidence in respect of the issues that the Applicant did not dispute, as she bears the onus of proving the dismissal.
She confirmed that she received prior notice from the principal that her contract would expire end of June 2013.
The 2nd and 3rd Respondents had no closing arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
The Applicant has alleged that she was unfairly dismissed. Section 192 of the Labour Relations Act, no. 66 of 1995 (the Act) deals with the onus in dismissal disputes and places the onus on the employee to prove the existence of the dismissal. Once the existence of the dismissal is established, the onus shifts it to the employer to show the dismissal was fair, both substantively and procedurally. The 1st Respondent claims that the Applicant was employed on a fixed term contract basis and that her contract expired. There was no dismissal. The existence of a dismissal is therefore placed in dispute by the 1st Respondent.
Section 186(1) of the Act defines “dismissal” in the following manner:
“Dismissal” means that -
(a) an employer has terminated a contract of employment with or without notice;
(b) 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;
(c) an employer refused to allow an employee to resume work after she -
(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to reemploy another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”.
I have to decide on a balance of probabilities whether the termination of the Applicant’s employment relationship falls within the ambit of the definition above, with specific reference to section 186(1)(b), and whether she was dismissed by the 1st Respondent.
It is not in dispute that the Applicant was indeed employed on a fixed term contract basis by the 1st Respondent. The Applicant base her claim purely on the fact that a person in HR by the name of James Makalimela told and showed her that her contract would run to December 2013. She did not call James as a witness to corroborate this version. There is no evidence upon which I can find on a balance of probabilities that the 1st Respondent created a reasonable expectation with the Respondent that her fixed term contract will be renewed to run until December 2013, and then failed to renew it, or offered to renew it on less favourable terms. The Applicant testified that the principal informed her at least two months in advance that her contract will expire on the end date of 30 June 2013. She therefore received proper notice well in advance. The Applicant testified that she was informed the post was going to be filled at the end of her term. The Applicant never completed a new application for the period July to December 2013. The Applicant conceded that James did not have the requisite authority to extend her contract, but she testified that she chose to believe him because the principal was arrogant. I am satisfied that on a balance of probabilities that the Applicant at all times knew that her contract would expire at the end of June 2013. She indeed testified that she merely hoped it would be extended.
The onus of proving the existence of a dismissal lies with the Applicant, and she did not discharge that onus. I find that the Applicant did not prove on a balance of probabilities that she was dismissed as defined in section 186(1) of the LRA. She is not entitled to relief.
1. The application is dismissed.
2. No order is made as to costs.
05 September 2014