Case Number: PSES 507-17/18 KZN
Applicant: 1st Respondent MR SITHEMBISO SENZO NJATHI, 2nd Respondent MR BLESSING SABELO KAWULA
Respondent: 1st Respondent Department of Higher Education and Training
Issue: Unfair Labour Practice - Provision of Benefits
Award Date: 23 June 2018
Arbitrator: A. DEYZEL
Case No: PSES 507-17/18 KZN
Date: 23 June 2018
In the matter between
MR SITHEMBISO SENZO NJATHI First Applicant
MR BLESSING SABELO KAWULA Second Applicant
DEPARTMENT OF HIGHER EDUCATION AND TRAINING First Respondent
MS P.N. MZIMELA Second Respondent
Applicants’ representative: Mr J.T. Dladla
Applicant’s address: Mkhize Attorneys
401C, 4TH Floor
379 Anton Lembede Street
Telephone: 031 3068380
First Respondent representative: Mr T. M. Mhlongo
First Respondent’s address: Department of Higher Education and Training
Telephone: 073 615 0664
Second Respondent’s representative: Mr Hoto
Second Respondent’s address
DETAILS OF HEARING AND REPRESENTATION
1. On 11 October 2017 the applicants referred a dispute to the ELRC. They alleged that the dispute was about a dismissal for operational requirements, alternatively, that it was a dispute about a dismissal referred to in section 186 (1) (b) of the LRA.
2. A conciliation meeting was held on 21 November 2017. The dispute could not be resolved through conciliation and a certificate to such effect was issued.
3. On 15 January 2018 the applicants’ requested that the dispute be arbitrated by the ELRC. They described the issues in dispute as follows:
(i) Unfair Dismissal (retrenchment) - positions still exist
(ii) S. 198 – We seek permanent employment because we worked for longer than 3 months.
(iii) S. 186 (1) (b) – we reasonably expected our contracts to be renewed.
(iv) Unpaid remuneration (37%)
4. The arbitration hearing was held on 27 February 2018, 23 and 24 April 2018 and on 4 and 5 June 2018.
5. At their request the parties were allowed until 13 June 2018 to file written argument and the written argument were timeously lodged.
6. The applicants were represented by their attorney, Mr J. T. Dladla.
7. The first respondent (“the department”) was represented by an official, Mr T.M. Mhlongo
8. The second respondent (“Ms Mzimela”) was represented by a union official, Mr Hoto.
ISSUES IN DISPUTE
9. The issues to be decided were whether dismissals occurred and, if so, what the reason for the dismissals was, whether the reason was fair and whether a fair procedure was followed. The relief to be awarded, if any, was also in dispute. The unpaid remuneration issue was no longer part of the dispute.
10. During November 2016 the department transferred two lecturers from the Mandeni campus of the Umfolozi TVET College (“the college”) to the Richtek campus of the college, leaving two funded electrical engineering lecturer posts in the electrical infrastructure and construction (EIC) department vacant.
11. On 13 March 2017 the college requested the emergency appointment of two lecturers. In the memorandum containing the request the background was set out as follows:
“Due to the voluntary transfer of two EIC lecturers in November 2016 students have been without a lecturer since the beginning of the year 2017. The situation of the campus was getting very tense because students were complaining that their teaching and learning time was lost. On Thursday 2 March students representing the EIC group had a meeting with the Principal.
The resolution was that emergency lecturers must be appointed. The Recruitment and Selection office used the database to identify suitable candidates. Candidates were selected using their CV and qualifications.
Two lecturers have reported on campus
Mr S.S Khawula EIC
Mr S.S. Nyathi EIC
Their appointment is a three-month contract. They assumed duty on the 7th of March - 7th May 2017.
12. The principal approved the two appointments on 23 March 2017.
13. In letters with the heading SUBSTITUTE APPOINTMENT the principal writing on the letter head of the department informed the applicants “your appointment has been confirmed with effect from 07 March 2017 to 31 May 2017.”
14. On 29 May 2017 the two electrical engineering lecturer posts were advertised in as Post 9 in Circular 08 of 2017.
15. The requirements for appointment were stated to be the following:
“Trade tested artisan or N6 Electrical Engineering with minimum two years’ experience in industry.”
16. On the same day Circular 10 of 2017 was published and it was indicated that Circular 10 was an amendment to Circular 8. The two electrical engineering lecturer posts (Post 9) were again advertised and this time the minimum requirements were stated to be:
“A recognised appropriate National N Diploma or equivalent recognised qualification (REQV 13) in the relevant field is required, inclusive of an appropriate recognised professional teaching qualification. In case of post related to technical subjects/skills training an N3 qualification inclusive of two languages and a trade test in the relevant field is required. In respect of Post 9 lecturers trained in the electrical and/or plumbing sectors with practical experience in renewable energy technologies will be a distinct advantage.”
17. On 5 June 2017 the two applicants and a third candidate were interviewed for three positions of substitute lecturers. The posts were not advertised, and their CV’s were obtained from a database. It appears from the record of the interviews that the three candidates were informed that the interview was for an “emergency position which will start on the 6th of June 2017 up to 31 July 2017.”
18. In letters dated 6 June 2017 with the heading SUBSTITUTE APPOINTMENT the principal writing on the letterhead of the department informed the applicants “your appointment has been confirmed with effect from 06 June 2017 to 31 July 2017.”
19. The two applicants applied for appointment to the two advertised electrical engineering posts. They were however not short listed to be interviewed and the reason given for this was that they did not meet the minimum requirements.
20. Ms Mzimela was the only candidate found suitable for appointment to the electrical engineering lecturer post and she was appointed to one of the positions. No other candidate was found suitable and no appointment to the remaining post was made. The post was to be re-advertised later in the year.
21. On 31 July 2017 Mr Nyathi raised a grievance worded inter alia as follows:
“I have been acting in the above post for 5 months. When this post was advertised as a permanent position I was not even shortlisted. I therefore request the college to give me clear reasons for me not to qualify.
I want to be satisfied as I have been acting in this position for two times, why now when the post is permanent then I am taken out. Can the college please provide me with a sound reason for not considering my application for the post”
22. On 2 August 2017 the principal writing on the letterhead of the department addressed letters to the applicants which read as follows:
“Kindly be advised that due to operational reasons, it has become necessary for the College to consider applying Section 189 of the Labour Relations Act No 66 of 1995 as amended. However, your contract will be extended for a month from 1 August 2017 to 31 August 2017.
We invite you to submit to us by no later than close of business, 11 August 2017,
• to avoid possible dismissal;
• to minimise the possible dismissal in the event of possible retrenchment;
• to change the timing of the possible dismissal and
• to mitigate the adverse effects of the possible dismissal;
• selection criteria;
• possible timetables in the event of retrenchment being unavoidable;
• help to the affected employee;
• any further constructive input;
23. In letters dated 14 August 2017 with the heading SUBSTITUTE APPOINTMENT the principal writing on the letterhead of the department informed the applicants “your appointment has been confirmed with effect from 01 August 2017 to 31 August 2017.”
24. Further correspondence between the parties followed. This included correspondence about using Circular 10 to determine what the minimum requirements were, requiring proof of Mr Nyathi’s union membership and arranging further meetings. The last meeting was held on 13 September 2017. The HR Manager, Ms Smith requested that the applicants should make submissions. Mr Nyathi responded as follows on 15 September 2017.
“My take is;
Having consulted we concluded that it is unprocedural and unfair make submissions and our matter is concluded in our absence Rather we (us and campus management) submit in person and the matter is concluded in our presence.”
25. By letter dated 20 September 2017 the principal responded with a Notice of Termination of Employment which read as follows:
“Unfortunately, your submission made does not relate to Section 189 of the Act. You are hereby given notice of termination of employment due to operational reasons.
Your last working day will be the 4th October 2017. You will be paid your salary until 4 October 2017 together with your accrued leave.”
26. On 14 December 2017 the remaining vacant EIC lecturer post at Mandeni campus was advertised in circular 25 of 2017 with the minimum requirements stipulated as a recognised appropriate Electrical National N Diploma (REQV 13) plus Trade Test.
SURVEY OF EVIDENCE AND ARGUMENT
27. The applicants gave evidence in support of their cases.
28. The department called three witnesses to give evidence in support of it case. Ms Mzimela also testified.
29. The evidence and arguments advanced by the parties appear from their written argument and are dealt with in the analysis hereunder.
30. The applicants submitted that they were unfairly dismissed, and the relief sought was reinstatement. It was further submitted that the failure to appoint them as electrical engineering lecturers constituted an unfair labour practice relating to a failure to promote them.
31. It was submitted on behalf of the department that the applicants were not dismissed and that the failure to appoint as electrical engineering lecturers did not constitute an unfair labour practice
ANALYSIS OF EVIDENCE AND ARGUMENT
32. The department’s case mainly rested on its submission that the applicants were only employed for short periods of time and that the department did so in circumstances that constituted an emergency. It in effect submitted that it had a justifiable reason for appointing the applicants for successive short periods of time as the electrical engineering students had been without a lecturer for a long time. The posts had to be advertised and a fair procedure had to be followed. A permanent appointment could only be made once that was done.
33. The 37% allowance paid to the applicants in lieu of benefits was part of the applicants’ remuneration and had to be taken into account in calculating whether the applicants’ remuneration exceeded the threshold referred to in section 198B (2) (a) of the LRA. The applicants’ remuneration clearly exceeded the threshold and for that reason sections 198B (3) and (5) were not applicable.
34. The applicants were clearly aware that the first period of employment was of limited duration in that it was only for three months. That this was so appears from the fact that they were interviewed for appointment to temporary posts shortly after the end of the three-month period. It is highly improbable that they would not have enquired for how long the second period of employment would be. It is more probable than not that they were told that the purpose for entering into a second period of temporary employment was to enable the college to follow a recruitment process that included advertising and interviews. They also applied for the posts when the posts were advertised. They clearly knew that the temporary employment would end once the recruitment process was finalised. In the view of Mr Nyathi, they were “acting” in these two positions. They had no expectation to be permanently appointed unless the outcome of the recruitment procedure was that they were appointed permanently.
35. When it became clear that they were not shortlisted for interviews it must have dawned on them and the management of the college that if other candidates were appointed to the two posts that they (the two applicants) would be redundant because their temporary employment would come to an end and because they would not have a job.
36. It was highly improbable that it was the result of human error that the principal invited the applicants to participate in a consultation process.
37. It might not have been necessary to invite the applicants to a consultation process due to the fact that the third employment agreement was of limited duration and would have ended at the end of the fixed term.
38. On 2 August 2017 when it became clear that the applicants were not short listed to be interviewed the principal invited the applicants to participate in a consultation process. The second temporary employment contract had ended on 31 July 2018 and the applicants were aggrieved. This was probably the reason why the principal invited them to participate in the consultation process. Even though it was not strictly necessary the principal probably considered that fairness required of him to extend the invitation to attend a consultation process to the applicants. As an invitation to participate in a consultation process could only be extended to employees and because the applicants were at that stage no longer employees that was probably the reason why the principal employed the applicants for a further period with retrospective effect i.e. from 1 August 20I7 to 31 August 2017. It is more probable than not that this was done to enable the applicants to participate in the consultation process. In my view it highly improbable that the applicants had any expectation that they would be permanently employed.
39. The employment did not end at the end of August 2017 and the applicants continued working beyond that date. The effect of employment continuing beyond a fixed term was dealt with in Grogan Dismissal at 35 :
“If the employer permits the employee to continue working after the date on which the contract would otherwise have expired, the contract would be deemed to have been tacitly renewed on the same terms, except that the contractual relationship is now of indefinite duration. Once this happens, the only way in which the contract can be terminated is by ordinary dismissal, with or without notice, or by the employee’s resignation.”
40. The principle set out in the above passage was applied in NEHAWU on behalf of Tati and SA Local Government Association (2008) 29 ILJ 1777 (CCMA).
41. The suggested approach was referred to with qualified approval in Owen & others v Department of Health, KwaZulu-Natal (2009) 30 ILJ 2461 (LC):
“The approach suggested by Grogan, i.e. that a tacit renewal of the contract on the same terms but for an employment relationship of indefinite duration, is commendable at the level of principle, but each case is fact and context specific and the application of principle must account for this… This is a factual enquiry to be determined on the evidence before the court.”
42. What is understood by a tacit agreement appears from SA Maritime Safety Authority v McKenzie  5 BLLR 488 (SCA):
“A tacit term is a term that arises from the actual or imputed intention of the parties as representing what they intended should be the contractual position in a particular situation or, where they did not address their minds to that situation, what it is inferred they would have intended had they applied their minds to the question.
In our law as it stands at present the usual test for the existence of a tacit term is that of the interfering bystander who asks what is to happen in the particular situation and receives the answer “Of course X will be the position. It is too obvious for us to say so.”
43. Depending on circumstances different inferences could be drawn in cases where the parties entered into successive fixed term employment contracts and the employment continued beyond the expiry date of the last fixed term contract without the parties applying their minds to the duration of the continued employment.
44. Where the contracting parties have regularly agreed to extend a fixed term employment contract for a specified period, one would generally infer that they would have agreed to extend the last fixed term contract for the same period, had they applied their minds to it. If there was a specified purpose for entering into successive fixed term employment contracts one would generally infer that the parties would have agreed to extend the last fixed term contract until the purpose has been fulfilled.
45. In the present case the circumstances were such that that the most probable inference was that the parties tacitly agreed that the employment would continue until the finalisation of the consultation process. They had two more meetings in September 2017 and it was only when the HR manager formed the view that the applicants were not making use of the opportunity to consult, that their employment was terminated. The further employment ended when the purpose for it came to an end. It terminated in terms of a tacit agreement and no dismissal occurred.
46. It was a part of the applicants’ case that their employment terminated because they were not promoted to the posts that were advertised in Circulars 8 and 10. It appeared from the evidence of Mr Zulu, the head of the respondent’s engineering department, that the applicants did not meet the minimum requirements for the posts as set out in Circular 10 for the reasons set out in paragraphs 47 to 50 below,
47. According to Mr Zulu the minimum requirements were a National Diploma or equivalent recognised qualification (REQV 13) in the electrical engineering field. In addition, an N3 qualification inclusive of two languages and a trade test in the electrical engineering field was required.
48. Mr Nyathi did not have the required qualifications as his diploma was a national diploma acquired at Mangosuthu University of Technology. According to Mr Zulu the required diploma was a National Diploma obtained from a TVET college. A National Diploma acquired at a University of Technology was not acceptable as the curricula for the two diplomas were different and the practical training was not the same. A National N Diploma student does three years practical training (apprenticeship) whereas a student at a University of Technology only does one year experiential training (in service training).
49. Neither Mr Nyathi nor Mr Kawula had done the required trade test. Mr Kawula only did a millwright trade test while the advertised post required an electrician trade test.
50. Mr Zulu‘s evidence relating to whether the applicants met the minimum requirements was more probable than that of the applicants. It is highly probable that he would know what the minimum requirements were. By virtue of his position as the head of the engineering department one would expected him to know that.
51. It was submitted on behalf of the applicants that the requirements in the advertisement in Circular 8 and not the requirements in the advertisement in Circular 10 had to be met. It was contended that the two applicants did not know that Circular 10 amended Circular 8. In my view it was irrelevant whether the applicants had such knowledge. They indicated in their application forms what their qualifications and experience were and there was no indication that their CV’s would have been different had they known that Circular 1 0 contained the minimum requirements.
52. There was no reason not to accept the evidence of Ms Mzimela to the effect that she met the requirements for appointment and that she was suitable to be appointed to the advertised post.
53. In the circumstances it was not unfair not to shortlist the applicants for interviews and not to appoint them.
54. In any event the applicants were employed on a temporary basis and until such time as the recruitment to fill the electrical engineering posts was finalised. As the applicants were not permanent employees the failure to appoint them did not relate to an appointment process nor a promotion process and consequently did not constitute an unfair labour practice.
(a) The failure to appoint the applicants permanently to the advertised positions of electrical engineering lecturers and terminating their temporary employment did not constitute an unfair labour practice or an unfair dismissal.
(b) The applicants are not entitled to any relief.
DATED at DURBAN this 24th day of JUNE 2018