Case Number: PSES33-17/18GP
Applicant: Bongani Vilakazi
Respondent: Ekuhruleni East TVET College and Department of Higher Education
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: the Department of Higher Education and Training, Head Office.
Award Date: 19 September 2018
Arbitrator: Luyanda Dumisa
Case Number: PSES33-17/18GP
Commissioner: Luyanda Dumisa
Date of Award: 19 September 2018
In the ARBITRATION between
Ekuhruleni East TVET College and Department of Higher Education
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were initially set down for hearing on 22 June 2018 and proceeded again on 03 and 04 September 2018 at Ekrhuleni East TVET College. The Applicant Bongani Vilakazi was represented by Simphiwe Gaju and who was later replaced by Sudeshnee Naidoo , both attorneys from Sudeshnee Naidoo Attorneys Inc.
2. The Respondents were represented by Muziwakhe Mathe and Sibusiso Mashinini, the former is stationed at the Ekurhuleni East TVET College and the latter is based at the Department of Higher Education and Training, Head Office.
3. The Arbitration proceedings were conducted in English and no interpretation services were required. A bundle of documents was submitted by both parties. The Applicants bundle is marked A. The Respondent's bundle is marked B.
4. The arbitration was held under the auspices of the ELRC. The proceedings were both digitally and manually recorded.
5. The Parties agreed to submit their closing arguments on 06 September 2018 and upon receipt they were duly considered.
ISSUE TO BE DECIDED
6. I am required to determine whether or not the Applicant was dismissed in terms of section 186(1) of the Labour Relations Act 66 of 1995 as amended. If yes, I must make a determination on the appropriate remedy.
7. The Applicant was employed in terms of a fixed term contract.
BACKGROUND TO THE DISPUTE
8. The Respondent is the Department of Higher Education which provides further education and training through the Ekurhuleni East TVET College.
9. The Applicant was employed in terms of 3 (three) successive fixed term contracts of 12 months , two of which had been renewed.
10. He was initially employed from 17 February 2014 on a contract that ended on 31 December 2014.
11. He was given another contract on January 2015 ending on 31 December 2015 which was renewed on January 2016 to expire on 31 December 2016.
12. The Applicant during the existence of his contract earned R14 527,44 and an additional benefit of R5 338,17 per month.
13. He has requested reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT
14. The Applicant contended that the non renewal of his fixed term contract of employment amounted to a dismissal in terms of section 186(1) of the Labour Relations Act 66 of 1995 as amended. Furthermore that a reasonable expectation that his contract was going to be renewed was created by the Respondent. He relied on his own testimony.
15. The Applicant stated under oath that he was employed from 2014 academic year on a 12 months fixed term contract, that was renewed in respect of the 2015 and 2016 academic years.
16. That at the end of the academic year 2016, he and other fixed term contract lectures were not informed whether their contracts of employment would be renewed or not.
17. He stated that he lectured on fundamental subjects.
18. That the Deputy Campus Manager usually sent fixed term contract employees Short Message Texts (SMS’) informing them that they will be returning the following academic year but this was not sent in December 2016.
19. He stated that the reason why the SMS’ were not sent was because there had been a migration process at the time time, because the Department of Higher Education and Training was taking over the employment of College Council employees.
20. He was part of the employees who were migrated from the College Council to Department of Higher Education and Training.
21. According to him the letter of the Director-General of the Department of Higher Education and Training (DHET) that migrated him from the employment of College Council to the DHET as well as the bursary scheme superseded the terms of his fixed term contract.
22. On 09 January 2017 he reported for duty, he signed the attendance register which had his name typed on it and to his surprise later during the day he was presented with a letter confirming the termination of his fixed term contract.
23. He was not given a four weeks notice prior to his fixed term contract being terminated.
24. He had a reasonable expectation that his contract was going to be renewed because he was a bursary holder from the College and in terms of the conditions of the bursary he was required to serve the College for 12 months after completion of his studies. Instead the college had replaced him with another lecturer.
25. During cross examination he conceded that the bursary contract had no bearing on his contract of employment and he was not required to repay the bursary money upon the termination of his fixed term contract ue to efflux of time.
26. He conceded that he was not ultimately transferred to the DHET because he had a problem with his PERSAL number as it showed that he was permanently employed whereas he had been dismissed.
27. He admitted that during the periods in which his fixed term contract of employment had been renewed he was given letters that his contract of employment was extended stipulating the term and that he was informed prior to returning to the College.
28. He agreed that the employment of lecturers is determined by the strategic plan of the College.
29. The Applicant argued that he had legitimate expectation that his contract was going to be renewed because of the attendance register that had his name on it in the academic year 2017, the transfer letter of the Director General of the DHET and the bursary scheme that required him to serve the Respondent after completion of his studies which superseded the fixed term contract
30. That his contract was terminated without four weeks notice.
31. The Respondent relied on the evidence of Thokozile Nkosi (Nkosi) and Manager Muswaba (Muswaba) to substantiate its case.
32. Nkosi testified under oath that she is employed by the Respondent as the Springs Campus Manger and her role entails planning as guided by the College's strategic plan.
33. her evidence was that the strategic plan on 2016 indicated 4 686 of actual students whereas for 2017 it showed 4 441 total planned students, which was a decrease in the number of students. This informed the required number of fixed term contract lectures and it affected the Applicant, because there were enough permanent personnel that could teach the subjects that were taught by the Applicant.
34. The Applicant was not required to report for duty on the academic year 2017 because his employment had come to an end on 31 December 2016. The Applicant's name on the attendance register did not create a reasonable expectation that his contract of employment was going to be renewed.
35. The attendance register is usually prepared well in advance and the administrators could not have known whether the Applicant was returning.
36. There was no need for the Applicant to be notified about the ending of his contract because he knew that it was ending on 31 December 2016.
37. Four weeks notice was not applicable in the circumstances that gave rise to the end of the Applicant's fixed term contract.
38. During cross examination she denied that employment contract was superseded by the bursary contract.
39. Ordinarily documents passed by her office but there were those that go directly to the Principal’s office which is why she would not know if the Applicant was given the reminder of termination of his fixed term contract.
40. Muswaba testified under oath that he is the Deputy Principal: Corporate services and the chairperson of the bursary committee. His role entails the planning of Human Resources, advice on recruitment and management of contracts, strategic planning and evaluation.
41. The Applicant was not migrated to the employment of the Department of Higher of Education and Training because he did not meet the conditions of the transfer including inter alia the PERSAL number issue amongst others.
42. The Applicant was aware of the PERSAL issue because this witness had told him that he had been dismissed.
43. That the reason why the Applicant's fixed term contract of employment was not renewed is because there was a decline in the number of students planned for the academic year 2017.
44. The Applicant was made aware that his contract was not going to be renewed because it was impossible to do so where the Applicant had been blocked on the PERSAL system.
45. The bursary contract did not create a reasonable expectation that his contract would be renewed. He was not required to repay the bursary upon expiry of his fixed term contract.
46. That the confirmation letter of termination was courteously issued to remind him that the fixed term contract had come to an end. The Applicant was not given a letter of renewal.
47. During cross examination he conceded that the Applicant was not given notice of termination because there was no need to inform the Applicant.
48. The Respondent argued that the letter that the Applicant relied on from the Director-General was not authentic although it a was generic letter that addressed the migration of employees. The Applicant was never transferred because he did not meet the requirements of the transfer.
49. It would have been impossible to continue with the employment of the Applicant because of the blocked PERSAL number and it would not have been possible to remunerate him.
50. The attendance register was not a valid reason to expect renewal of fixed term contract.
ANALYSIS OF EVIDENCE AND ARGUMENT
51. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings. Section 188(1)(a) of the LRA and Code of Good Practice: Dismissal, Item 2(4) provides that a dismissal that is not automatically unfair, is unfair if the employer fails to prove, that the reason for dismissal is a fair reason related to the employee’s conduct or capacity or based on employer’s operational requirements.
52. Section 186 of the Act defines "dismissal" in the following manner:
“That dismissal means that:
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer-
(i) to renew fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favorable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favorable terms, or did not offer to retain the employee;
(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 re-employ another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee; or
(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 favorable to the employee than those provided by the old employer.”
53. I must determine on a balance of probabilities whether or not the termination of the Applicant's fixed-term contract of employment falls within the ambit of the definition above, and whether a reasonable expectation that his fixed term contract was going to be renewed was created by the Respondent.
54. The Applicant contended that the termination of his fixed term was unfair in that he had a reasonable expectation that his contract was going to be renewed for the followings reasons:
55. His fixed term contract was terminated without notice, he was informed together with others on 09 January 2017 that their services were no longer required.
56. He conceded that on 31 December 2016 he was not told if he would be required to work as it used to be the case in the previous contract renewal.
57. The letter from the Director General referring to transfer from employment of College Council to the employment of the DHET had created a legitimate expectation that his contract was going to be renewed.
58. The bursary scheme that was awarded to him created a reasonable expectation that his contract was going to be renewed, in that it required him to serve the Respondent for 12 months after completion of his studies.
59. The letter from the Director-General and the bursary scheme superseded the fixed term contract of employment.
60. The thrust of the Respondent’s contention was that the Applicant's fixed term contract of employment came to an end by efflux of time and that the contract clearly stipulated the start and end date of its duration.
61. It averred that no reasonable expectation was created that the Applicant’s contract would be renewed.
62. There was no obligation on its part to remind the Applicant about the termination of the fixed term contract of employment.
63. The Applicant was never transferred to the employment of the DHET because his PERSAL number had been blocked.
64. The Applicant was not required to repay the bursary fund and the reason for not renewing the contract was the result of to the Strategic planning because of the decline in students enrollment for the academic year 2017. The attendance register was prepared in advance from the previous academic year and on its own it did not create a relationship of employment.
65. The most probable version is that of the Respondent namely that the the termination of the Applicant's contract was a result of it coming to its natural end upon the arrival of the agreed end date for the following reasons.
66. There was no need for the Respondent to notify the Applicant four weeks prior to the arrival of the end date of the fixed term contract. It stands to reason that the reminder was a courtesy because the Applicant was aware of the end date of his contract.
67. The notice period provided for in the fixed term contract, on which the Applicant relied, is only applicable in the event where either the Applicant or the Respondent initiates the termination of the fixed term contract before its expiry.
68. The purported transfer of the Applicant could not have superseded his employment contract because the Applicant was not transferred owing to the PERSAL number being blocked.
69. Nor could the bursary scheme contract supersede the founding employment contract. The Applicant was not required to repay the bursary fund because he did not terminate his employment because it ended as a result of the operation of law.
70. The Applicant conceded that he was not informed that his fixed term contract was going to be renewed as had been the case in the previous years when it was communicated in prior to him resuming his duty.
71. This I find is an indication that the Applicant had no reason to believe that his services were required despite that it was not communicated to him.
72. The Applicant's contract was not terminated on 09 January 2017 but it was confirmed to him that his contract had not been renewed. He was not even required to work throughout the day.
73. All of these reasons mitigate against what could otherwise have been accepted that because of the number of times the Applicant's contract was renewed this fact may contribute towards an expectation of another similar contract.
74. Rather these circumstances militate against the conclusion that the Applicant had a reasonabe expectation that his contract was going to be renewed.
75. It is trite law that a fixed-term contract terminates by operation of law at the end of its term and such termination does not constitute a dismissal.
76. I find that in light of the evidence presented there was no reasonable expectation that was created by the Respondent that the Applicant's fixed-term contract was going to be renewed.
77. I therefore find that the Applicant failed to discharge his burden of proof on a balance of probabilities that the termination of his fixed term contract was a dismissal as defined in section 186(1) of the LRA.
78. The Applicant was not dismissed but his fixed term contract of employment came to its natural end upon the arrival of the end date.
79. The Applicant (Bongani Vilakazi’s ) claim of unfair dismissal by the Respondents (Ekurhuleni East TVET College and the Department of Higher Education and Training) is hereby dismissed.
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry:Education and Training