Case Number: PSES141-18/19GP
Applicant: Zondi Jabulani Moretsi
Respondent: DEPARTMENT OF EDUCATION- GAUTENG
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Respondent's premises in Krugersdorp
Award Date: 26 October 2018
Arbitrator: Luyanda Dumisa
Case Number: PSES141-18/19GP
Commissioner: Luyanda Dumisa
Date of Award: 26 October 2018
In the ARBITRATION between
Zondi Jabulani Moretsi
Gauteng Department of Education
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration proceedings were initially set down for hearing on 14 August 2018 and were finalised on 19 October 2018 at the Respondent's premises in Krugersdorp .
2. The Applicant Zondi Jabulani Moretsi was represented by Narissa Hiralall an attorney from Hiralall Attorneys.
3. The Respondent was represented by Mvuleni Tshitshiba its labour Relations officer.
4. The Arbitration proceedings were conducted in English and no interpreter was required. The bundle of documents were submitted by both parties. The Applicant’s bundle of documents was marked ‘A’. The Respondent's bundle was marked ‘B’.
5. The arbitration was held under the auspices of the ELRC in terms of its Constitution. The proceedings were both digitally and manually recorded.
6. The Parties agreed to submit their closing arguments on 22 October 2018 and upon receipt they were duly considered.
ISSUE TO BE DECIDED
7. 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("the LRA"). If yes, I must make a determination on the appropriate remedy.
BACKGROUND TO THE DISPUTE
8. The Respondent is the Gauteng Department of Education and provides compulsory basic education and it had employed the Applicant on fixed term contract as Post Level 1 Educator.
9. The Applicant was employed on successive fixed term contracts from February 2016 until the last contract was not renewed after it ended on 31 March 2018.
10. The Applicant during the existence of his contract earned R12 000 per month.
11. The Applicant sought renewal of his contract and or to be retained permanently.
SURVEY OF EVIDENCE AND ARGUMENT
12. 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 would be renewed or that he was going to be retained permanently was created by the Respondent. He relied on the testimony of Xolani Wilmont Radebe ("Radebe"), Mxolisi Christopher Gaqa ("Gaqa"), Maurice Itam Rambau ("Rambau") and his own testimony.
13. The Applicant stated under oath that he was employed on a fixed term contract of employment from February 2016 as Post Level 1 teacher.
14. The reason for him to be employed on a fixed term contract was that he was under-qualified because he only had an Adult Basic Education and Training Diploma (ABET) qualification. He had in the interim completed Advance Certificate in Education (ACE) on 26 March 2018.
15. The Applicant presented proof that he has completed his ACE qualification in December 2017 and his contract was renewed from 15 January 2018 to 31 March 2018.
16. He stated that because he had acquired the ABET diploma and ACE and because he was occupying a substantive post , he had satisfied the requirements of being absorbed into the mainstream education in terms of the Memorandum issued on 14 March 2016 and the Collective agreement 1 on conversion of Temporary Appointment of Post Level 1 Educators into Permanent Appointment.
17. By reason of both qualifications he testified that he met Relevant Education Qualification Value (REQV) 13 namely 360 points, and because he occupied a vacant substantive post , which he had occupied it for more than three months and was registered with SACE he was eligible.
18. He said that a reasonable expectation was created that his contract was going to be renewed and or that he would be employed permanently because he was told by the Principal that he was going to be continuously employed upon completion of ACE.
19. That expectation was further created by the fact that Radebe and Gaqa have the same qualifications that he has and are permanent employees in the mainstream education.
20. He stated that he was telephoned to be told not to report for duty on 15 April 2018 and that the reason for non renewal of his contract was that his qualifications were from a fly by night institution.
21. During cross examination he conceded that the Memorandum dated 14 March 2016, subject was temporary or contract appointments. This Memorandum provided that only professionally qualified educators will be appointed. He persisted that by reason of holding an ACE he was professionally qualified, meeting the REQV13 or above requirement.
22. Radebe testified under oath and stated that he is employed permanently by the Respondent as a Post Level 1 educator at Maputle Primary School , having been absorbed since 2013. That his qualifications were ABET 2013 and ACE 2017 and he was currently enrolled for a bachelor's degree.
23. He stated that for one to be appointed permanently one should have been in a vacant substantive post for more than 3 months, meet REQV13, Post level 1 educator requirement, and be registered with the South African Council of Educators (SACE).
24. During cross examination he conceded that the person who holds a Primary Teachers Diploma is appropriately qualified to teach at a primary school, that a person who holds a Secondary Teachers Diploma is appropriately qualified at a secondary school and that a person who holds an ABET is appropriately qualified to teach at an ABET school. But the entry level requirement to being a teacher is REQV13.
25. When it was put to him, he stated that he was not aware that due to his qualifications, he was erroneously.
26. He also conceded that in the event that a vacant substantive post is occupied by inappropriately qualified person, preference would be given to appropriately qualified person when appointment is made.
27. Gaqa testified under oath that he is employed permanently as a post level 1educator at the Westonaria Intermediate Primary School. He started working for the Respondent on January 2017 and on August 2017 he was absorbed into permanency.
28. His qualifications are ABET and ACE. He had occupied a vacant substantive post for more than 3 months. He was not aware of any issues concerning his qualifications being evaluated or questioned.
29. During cross examination he conceded that there is difference between the Primary Teachers diploma and ABET.
30. Rambau testified under oath that he is a post level 1 educator and that he holds a Secondary Teachers Diploma. This qualification met the REQV13 requirement. That the Applicant met the requirements to absorbed permanently in terms of the collective agreement.
31. During cross examination he stated that there was another employee who held and ABET who had been terminated. He denied that there was any distinction between a person with an ABET compared to a Primary or Secondary Teachers Diploma except the label of the qualification. He conceded that the ABET educator is intended to teach at ABET and not mainstream schools.
32. He conceded that the department is more inclined to favour a person with the Primary Teachers Diploma over a person with ABET owing to the definition of the qualifications.
33. The Applicant's representative argued that the said Memorandum had created a reasonable expectation to that his contract would be renewed or that he was going to be retained permanently upon the completion of ACE qualification, based on the circumstances that existed during the Applicant's employment with the Respondent. There was inconsistency in the manner in which the Respondent had dealt with the Applicant in comparison with his colleagues who are employed permanently having the same qualifications as the Applicant.
34. The Applicant argued that Respondent did not dispute that the Applicant’s reasonable expectation was created by the Principal when he advised to register for ACE.
35. Dedericks testified under oath that he is employed by the Respondent as the Deputy Director Human Resources and Transversal Services.
36. The Respondent’s contention was that the Applicant's fixed term contract of employment came to an end owing to the effluxion of time. No legitimate expectation was created that his contract would be renewed or that he would be retained permanently owing to the lack of relevant qualifications and that his contract of employment was for a specific period.
37. The reason the Applicant had been employed in terms of a limited duration contract was to ensure that there was a teacher in class until such time an appropriately qualified teacher is employed.
38. That the Applicant could not be absorbed owing to his qualification which allows for him to be appointed only at ABET schools. That ACE does not render him professionally qualified to be a teacher at mainstream schools.
39. The Applicant was not dismissed but his contract came to an end and he could not be absorbed nor could his contract be renewed because he did not have the relevant qualification. The post was subsequently filled by a professionally qualified educator.
40. The Applicant does not have either the Primary or the Secondary Teachers and as a result he did not meet REQV 13. The Respondent relied on the evidence of Willem Dedericks (Dedericks) to substantiate its case.
41. That the employees who have been absorbed and not meeting the requirements their qualifications are being evaluated and depending on their outcomes they may be terminated if they found to be irrelevant qualifications or viewed as professionally inappropriate.
42. During cross examination he stated that the ACE was not a sufficient qualification to be viewed as professionally qualified. The Applicant could have no reasonable expectation that his contract would be renewed or employed permanently because he did not have the relevant qualification.
43. There are educators whose qualifications have been evaluated whose qualifications have been found to be inappropriate and they are in the process of being terminated. That the Respondent is still waiting for the evaluation outcome of Radebe and Gaqa.
44. The Respondent's representative argued that teaching in the mainstream schools requires specific skills which is why the Respondent would not appoint educators who are not appropriately qualified permanently in the mainstream.
45. That the Applicant's contention that the Memorandum in question rendered the him eligible to be appointed permanently was disingenuous in that the Memorandum made the Respondent's position clear that "Only professionally qualified educators will be appointed, REQV13 and above (No AET qualification)".
46. The REQV 13 is required on the relevant qualification namely the Primary or Secondary Teachers Diploma or a Bachelor of Education.
47. The professionally unqualified teachers are being terminated following evaluation of their qualifications.
48. The Respondent has since appointed a professionally qualified teacher to the vacant substantive post that was occupied by the Applicant and this shows that the termination of the Applicant's contract was for a fair reason.
49. The Applicant's fixed term contract was extended until the suitably qualified educator was appointed.
50. The Applicant was not prejudiced since this was carried out fairly and for justifiable reason.
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;
1. 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 or alternatively that he was going to be retained permanently. The most probable version is that of the Respondent that 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:
54. The Applicant signed a contract which had a start date and end date. Flowing from this fact the Applicant knew the end date of his contract. The Applicant was not appointed permanently in terms of the Memorandum because he was not appropriately qualified as it stated that only professionally qualified educators would be appointed, namely REQV13 and above( No AET qualification).
55. It stands to reason that the REQV 13 referred to in the Memorandum is in relation to the Primary or Secondary Teachers Diploma and or Bachelor of Education. The AET or ABET is not the relevant qualification for teaching at the mainstream schools. It was also conceded to by Radebe, Gaqa and Rambau that although the ABET and the Primary or Secondary School diploma meet REQV13, the relevant qualification for mainstream schools are Primary or Secondary school Diploma.
56. It is clear that the Applicant does not have the relevant qualification namely a Primary or Secondary Teachers Diploma and or Bachelor of Education.
57. It was justifiable for the Respondent not to renew the Applicant's contract when a suitably qualified educator was hired to occupy the post permanently.
58. Logically there would be no reason for the Respondent to renew the contract under these circumstances. The Applicant's witnesses confirmed that a person holding the Primary or Secondary Teachers Diploma and or Bachelor of Education would be given preference over the one having ABET.
59. The fact that the Respondent has employed teachers permanently who have the same or similar qualifications as those that the Applicant has, does not show that the Respondent has the propensity to appoint the Applicant because the Respondent is in the process of terminating those educators who are underqualified.
60. It is also evident that the Applicant was never absorbed owing to his lack of relevant qualifications in the strictest sense of the REQV13 in the context of his profession.
61. Whilst it could be accepted that the number of times the Applicant's contract was renewed or rolled over may contribute to an expectation of another similar contract, such an expectation is mitigated by the fact that it would have have been impossible for the Respondent to continue with the employment of the Applicant post the termination date due to the appointment of the suitably qualified educator.
62. These glaring circumstances militate against the conclusion that the Applicant under these circumstances had a reasonable expectation that his contract was going to be renewed.
63. 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.
64. The Applicant has no objective basis that created a reasonable expectation that his contract was going to be renewed. School Principals do not have the power to appoint educators. Therefore their promise cannot be construed as creating a reasonable expectation that binds the Respondent.
65. An entitlement to permanent employment cannot be simply based on a reasonable expectation of renewal of a fixed-term contract.
66. Therefore, the Applicant could not legitimately, within the context of section 186(b) of the LRA, have formed a reasonable expectation of permanent.
67. I therefore find that the Applicant failed to discharge his burden of proof on a balance of probabilities to show that the termination of his fixed term contract was a dismissal as defined in section 186(1) of the LRA.
68. I find that the Applicant was not dismissed but his fixed term contract of employment came to its natural end upon the arrival of the end date.
69. The Applicant, Zondi Jabulani Moretsi has not established that he was dismissed.
70. The Applicant's claim of unfair dismissal is hereby dismissed.
Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry: Education Labour Relations Council