Case Number: PSES24-18/19GP
Applicant: MOSHWADIBA, VP
Respondent: MOSHWADIBA, VP
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 9 October 2018
Arbitrator: Mohau Clement Ntaopane
Case Number: PSES24-18/19GP
Arbitrator: Mohau Clement Ntaopane
Date of Award: 09 October 2018
In the ARBITRATION between
DEPARTMENT OF EDUCATION – GAUTENG
Applicant’s representative: Khaya Sinqaba
Respondent’s representative: Vusi Ndhlovu
DETAILS OF HEARING AND REPRESENTATION
 This is the award in the arbitration between Ms VD Moshwadiba, the applicant, and Department of Education – Gauteng, the respondent.
 The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iii) of the Labour Relations Act, 1995 as amended (“the LRA”) and the award is issued in terms of section 138 (7) of the LRA.
 The arbitration was set-down on 26 and 29 June 2018 and 20 September 2018 at the Ekurhuleni South District Office. The applicant was represented by SADTU official, Mr Khaya Sinqaba, while the respondent was represented by Mr Vusumuzi Ndhlovu.
 The process was conducted in English and digitally recorded. Both parties submitted bundles of documents into the record.
 The arbitration was postponed on 26 June 2018 and parties agreed to 29 June 2018. On 29 June 2018 the respondent raised a jurisdictional point and a ruling was issued confirming the council’s jurisdiction. On 20 September 2018 both parties agreed to only submit heads of arguments without leading any evidence.
ISSUES TO BE DECIDED
 The dispute is whether the non-renewal of the applicant’s fixed term contract constituted a dismissal and whether such dismissal was unfair.
 The relief to be awarded is also in issue.
BACKGROUND TO THE DISPUTE AND COMMON CAUSE FACTS
 The dispute was referred to the council on 9 April 2018 in terms of which the dispute arose on 15 March 2018.
 A pre-arbitration conference held on 4 May 2018 yielded the following common cause fact:
• The applicant had been employed as an educator on a limited duration contract at Zimeleni School in Katlehong, the last contract having been for the period 1 January 2017 to 31 December 2017.
 The applicant’s contract was extended on 1 January 2018 to 31 March 2018 at salary notch R108 450-00 per
 A request for the dispute to be resolved through arbitration was filed on 14 May 2018.
SURVEY OF ARGUMENTS
 The applicant argued that the information in the pre-hearing and the overall hearing was not tested through the calling of witnesses to either corroborate or to refute it. There was no consistency on the side of the employer representatives, there having been two of them, Ms Jaffer and Mr Ndlovu, and as such confusion of evidence occurred, dealing the applicant a deadly blow. If this situation did not occur then there could have been a different verdict in the case. In the applicant’s view, based on the staff establishment of 2015 – 2016, absorption could have long happened as per the dictates of policy. The absorption application form was issued to her as she qualified for absorption, but this was never implemented even though it was signed by the District Director. The principal did not implement the directive and as such, her labour rights were violated.
 The applicant submitted further that the arbitration is supposed to look into the matter of absorption first before any staff establishment process as this could have given more clarity than confusion. If the school currently does not have a post to absorb her into then another option should be explored rather than resorting to the termination of duties. The applicant held the view that the fact that the principal was never called to the arbitration to be afforded an opportunity to state her understanding on the issues of termination and absorption, the contradiction being clear, she would have explained the difference that she must obviously be aware as a leader who is logical. The principal cannot cause confusion at the level of the institution and be left alone without her being cross-examined. The applicant’s final word was that the matter must be reviewed and that proper procedures must be followed in order to get to the bottom of it.
 The respondent submitted in terms of the minimum requirements set out in the Employment of Educators’ Act, 76 of 1998, for the appointment of educators on a permanent basis, an educator should amongst others, have an REQV 13 to qualify for an appointment on a permanent basis. The applicant was in possession of a REQV 12 rendering her under-qualified and providing the basis for which she has been continuously appointed on a fixed period of 3 months subject to the availability of a substantive vacant post. The respondent submitted further that the applicant’s renewal of contract was subject to the approval by the Head of Department and as such, a request for her continued appointment was made as appears on page 23 to 29 of the respondent’s bundle.
 In terms of Circular 10 of 2014 dealing with the conversion of educators on a temporary to a permanent basis, the Respondent submitted that the post the applicant sought to be appointed into had to be substantively vacant and as a result of the Zimeleni School having lost six educators posts as a result of the post establishment of the previous year and the applicant’s post subsequently ceasing to exist. As such, the respondent argued that the applicant was not entitled to absorption, nor was she dismissed as her fixed term contract came to an end through the effluxion of time as she was aware that it would.
ANALYSIS OF FACTS AND ARGUMENT
 Section 186(1)(b) recognizes as a dismissal an instance where an employee reasonably expected the employer to renew a fixed-term contract of employment on same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or where an employee reasonably expected to be retained in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
 In Enforce Security Group v Mwelase and 46 Others the Court affirmed that s186(1) clearly defined instances that bring about the termination of employment which would be regarded as a dismissal. This means that an employment contract can be terminated in a number of ways which do not constitute a dismissal as defined by section 186(1) of the LRA, and one such instance would be a fixed-term contract entered into for a specific period or upon the happening of a particular event. Once the event agreed to between the employer and its employee materializes, there would be no dismissal.
 In University of Cape Town v Thomas auf der Heyde the Court held that the test for reasonable expectation was twofold. They first dealt with whether the employee actually expected the contract to be renewed and the second, whether the expectation was reasonable. In NUM obo Mpaki vs. CCMA & Others the Court held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through an evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors, which may influence a finding such as undertakings by the employer, custom or practice in regard to renewal, availability of the post – the list is not exhaustive.
 It is therefore for the applicant to show that there was a reasonable expectation of renewal, or as in this case, absorption into a permanent post. Both parties were cautioned on the election to only submit arguments without leading evidence as any unresolved issues that have not been proven would remain as such and the onus bearer would have failed to discharge it. The applicant’s argument suggests that the expectation is based on the post establishment of 2015 – 2016 and the instruction by the District Director at that time for the applicant to be absorbed, which was not implemented by the principal. The respondent argued that the applicant was not entitled to absorption as she was not in possession of REQV14, nor was there a vacant substantive post for her to be absorbed into.
 In terms of Circular 10 of 2014, educators appointed in a contract (temporary) capacity will only be converted to permanent if:
a) there is a vacant substantive post available on the approved Post Establishment of the current academic year, and have remained in the service of the Department as a contract employee after the approval of this circular; and
b) they meet the requirements as per the Employment of Educators Act, 1998, as well as the curricular needs of the institution.
 The applicant argued that the arbitration should prioritize the issue of absorption over the post establishment process. This argument is flawed as it is the post establishment that determines whether there is a post for the applicant to be absorbed into. The fact that the applicant is claiming an entitlement to absorption in terms of the 2015 – 2016 post establishment is indicative of the applicant’s awareness of this requirement, the argument in terms of which the post establishment should be a secondary concern notwithstanding. The date of dispute that has been referred is 15 March 2018 – assumingly the date on which the applicant became aware that her contract will not be renewed when it expired on 31 March 2018. It is at this stage that the applicant should establish an entitlement and it should follow that the entitlement should be in terms of the concurrent post establishment. It therefore cannot be accepted that the applicant had an expectation of renewal or permanency in 2018 in terms of the post establishment of 2015 – 2016 since the applicant has entered into at least two further fixed term contracts since 2016. As to whether the failure to renew her contract constituted a dismissal, the applicant has not discharged the onus of proof.
 The applicant has failed to prove the existence of a dismissal. Her claim of unfair dismissal as a result of the non-renewal of the fixed term contract by the respondent is hereby dismissed.
ELRC Panellist: Mohau Clement Ntaopane