PSES248-18/19
PSES248-18/19
Award Date:
30 January 2019
Case Number: PSES248-18/19
Province: Gauteng
Applicant: SADTU obo Felicity Khaile
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Department of Education Offices, Krugersdorp.
Award Date: 30 January 2019
Arbitrator: Paul Phundu
Case Number: PSES248-18/19
Panellist: Paul Phundu
Date of Award: 30 January 2019
In the ARBITRATION between:
SADTU obo Felicity Khaile Employee
And
Department of Education -(Gauteng) Employer
Employer’s representative: Mr V Tshitshiba
Employer’s address: Gauteng West
Krugersdorp
1799
Telephone: 011 660 4581
Employee’s representative: Mr A Rambau
Respondent’s address: Gauteng West
Westonaria 1799
Telephone: 073 471 9604
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between SADTU obo Felicity Khaile, (hereinafter referred to as the Applicant) and Department of Education, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 17 October 2018 and 28 January 2019 at the Department of Education Offices, Krugersdorp.
[2] The Applicant was present at the arbitration and was represented by, Mr Maurice Rambau, a union official from SADTU. The Respondent was represented by, Mr Mvuleni Tshitshiba, its Labour Relations Official.
[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Only the respondent party submitted bundles of documents marked Annexure “A” and the content was not in dispute.
ISSUE TO BE DECIDED
[6] I am required to determine whether the termination of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.
BACKGROUND TO THE ISSUE
[7] The Applicant was employed on a temporary fixed term contract as an educator PL 1, earning a salary of R12, 900. 00 per month.
[8] The recent fixed term contract entered into by the parties commenced on the 1st of January 2018 and ended on the 31st of March 2018. Previously, the applicant was employed on numerous fixed term contracts by the same Respondent. The duration of the last contract was three months.
[9] The Applicant claimed that she was unfairly dismissed and she had an expectation that her temporary fixed term contract will be renewed.
[10] The Respondent claimed that the Applicant was not dismissed, but her fixed term contract came to an end. The Respondent further stated that the reason why the Applicant was not absorbed into a permanent position was because she did not have the required qualification.
[11] The Applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for permanent appointment.
SURVEY OF ARGUMENTS AND EVIDENCE
Applicant’s submissions
[12] Ms Felicity Khaile testified under oath that she was employed temporarily by the Respondent as an Educator PL 1. Her place of work was Zuurbekom Primary School. Both parties entered into a temporary fixed term contract of employment. The duration of the contract was three months. She was verbally told that her contract will not be renewed. She said she was unfairly dismissed by the Respondent. The Respondent failed to warn her that the fixed term contract would not be renewed.
[13] The applicant has a Higher Diploma in Adult, Basic Education and Training. She possessed the right qualification and as a result met the requirements of the position and should have been absorbed and appointed permanently. The Applicant stated that the position was never advertised by the Respondent.
[14] Under cross-examination the Applicant stated that she was not aware of the requirements for absorption into a permanent position. She further stated that she was not in possession of the Bachelor of Education Degree. She said she was aware that she can only be absorbed into a permanent position once she has completed her Bachelor of Education Degree.
[15] The applicant confirmed that she understood her contract of employment to be temporary and for a period of three months ending on the 31st of March 2018.
Respondent’s submissions
The Respondent had one witness who testified in support of its case. The evidence was briefly as follows:
[16] Mr Johannes Willem Dedericks testified under oath that he is employed by the Respondent as a Deputy Director-Human Resources. He said there are three requirements to be met before a temporary Educator can be absorbed into a permanent position. The educator must be a South African Citizen, must have been in temporary employment for a period exceeding three months and must have the relevant qualifications, namely, Primary Teachers Diploma, Secondary Teachers Diploma or Bachelor of Education Degree. The Applicant is in possession of a Higher Diploma in Adult Basic Education and Training. Therefore, she did not meet the requirements for absorption into a permanent position. The Department of Higher Education and Training evaluated the Applicant’s qualifications and found that the Applicant cannot teach in a main stream School. The reason for non-appointment was because her qualification was meant for Adult Learners (ABET) and CET Colleges.
[17] Under cross-examination the Respondent confirmed that only Educators who are in possession of Primary Teachers Diploma, Secondary Teachers Diploma or Bachelor of Education Degree can be absorbed into permanent positions.
ANALYSIS OF ARGUMENT AND EVIDENCE
[18] The dispute in essence amounts to whether, on the facts of the matter, the applicant has discharged the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[19] In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of 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; or to retain the employee 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.
[20] It is common cause that the parties entered into a written temporary fixed term contract. The duration of the contract was three months. Despite the written contract, the Applicant was informed verbally that her contract will not be renewed. I reject the Applicant’s argument that she was not warned that her contract would not be renewed. The reason I say so is because the Applicant conceded that she was verbally told that her contract will not be renewed. Furthermore, the Applicant’s contract of employment specified the start and an end date of employment. It is my finding that the Applicant knew well in advance of the termination date of her employment. I accept the Respondent’s argument that she can only be absorbed into a permanent position only when she has obtained The Degree in Education.
[21] I accept the Respondent’s argument that the Applicant was not dismissed but her contract came to an end.
[22] The Applicant failed to adduce evidence that proved that she had a reasonable expectation that her contract would be renewed.
[23] I am satisfied that the Applicant is not possession of the Primary Teachers Diploma, Secondary Teachers Diploma or Bachelor of Education Degree. I am convinced by the Respondent’s argument that the Applicant did not meet the minimum requirements for absorption in a permanent position of an Educator.
[24] It is further my finding that the Applicant failed to prove that her qualification was equivalent to Bachelor of Education Degree.
[25] In NUM obo Mpaki vs. CCMA & Others JR 1983/2014 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 the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors, which may influence such a finding, namely (a) agreements (b) undertakings by the employer, (c) custom or practice in regard to renewal, (d) the availability of the posts, (e) the purpose or reason for conclusion of the fixed term contract, (f) inconsistent conduct, (g) failure to give reasonable notice, (h) the nature of the business. The list is not exhaustive.
[26] In view of the above analysis, it is my finding that the Applicant has failed to discharge the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
AWARD
[27] It is my finding that the Applicant was not dismissed but her temporary contract of employment came an end.
[28] It is further my finding that the Applicant did not meet the minimum requirements as set out for appointment in a permanent position.
[29] The Applicant is not entitled to any relief.
[30] The Applicant’s referral of a dispute is dismissed.
ELRC PART-TIME PANELLIST: PAUL PHUNDU
Province: Gauteng
Applicant: SADTU obo Felicity Khaile
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Department of Education Offices, Krugersdorp.
Award Date: 30 January 2019
Arbitrator: Paul Phundu
Case Number: PSES248-18/19
Panellist: Paul Phundu
Date of Award: 30 January 2019
In the ARBITRATION between:
SADTU obo Felicity Khaile Employee
And
Department of Education -(Gauteng) Employer
Employer’s representative: Mr V Tshitshiba
Employer’s address: Gauteng West
Krugersdorp
1799
Telephone: 011 660 4581
Employee’s representative: Mr A Rambau
Respondent’s address: Gauteng West
Westonaria 1799
Telephone: 073 471 9604
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between SADTU obo Felicity Khaile, (hereinafter referred to as the Applicant) and Department of Education, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 17 October 2018 and 28 January 2019 at the Department of Education Offices, Krugersdorp.
[2] The Applicant was present at the arbitration and was represented by, Mr Maurice Rambau, a union official from SADTU. The Respondent was represented by, Mr Mvuleni Tshitshiba, its Labour Relations Official.
[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Only the respondent party submitted bundles of documents marked Annexure “A” and the content was not in dispute.
ISSUE TO BE DECIDED
[6] I am required to determine whether the termination of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.
BACKGROUND TO THE ISSUE
[7] The Applicant was employed on a temporary fixed term contract as an educator PL 1, earning a salary of R12, 900. 00 per month.
[8] The recent fixed term contract entered into by the parties commenced on the 1st of January 2018 and ended on the 31st of March 2018. Previously, the applicant was employed on numerous fixed term contracts by the same Respondent. The duration of the last contract was three months.
[9] The Applicant claimed that she was unfairly dismissed and she had an expectation that her temporary fixed term contract will be renewed.
[10] The Respondent claimed that the Applicant was not dismissed, but her fixed term contract came to an end. The Respondent further stated that the reason why the Applicant was not absorbed into a permanent position was because she did not have the required qualification.
[11] The Applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for permanent appointment.
SURVEY OF ARGUMENTS AND EVIDENCE
Applicant’s submissions
[12] Ms Felicity Khaile testified under oath that she was employed temporarily by the Respondent as an Educator PL 1. Her place of work was Zuurbekom Primary School. Both parties entered into a temporary fixed term contract of employment. The duration of the contract was three months. She was verbally told that her contract will not be renewed. She said she was unfairly dismissed by the Respondent. The Respondent failed to warn her that the fixed term contract would not be renewed.
[13] The applicant has a Higher Diploma in Adult, Basic Education and Training. She possessed the right qualification and as a result met the requirements of the position and should have been absorbed and appointed permanently. The Applicant stated that the position was never advertised by the Respondent.
[14] Under cross-examination the Applicant stated that she was not aware of the requirements for absorption into a permanent position. She further stated that she was not in possession of the Bachelor of Education Degree. She said she was aware that she can only be absorbed into a permanent position once she has completed her Bachelor of Education Degree.
[15] The applicant confirmed that she understood her contract of employment to be temporary and for a period of three months ending on the 31st of March 2018.
Respondent’s submissions
The Respondent had one witness who testified in support of its case. The evidence was briefly as follows:
[16] Mr Johannes Willem Dedericks testified under oath that he is employed by the Respondent as a Deputy Director-Human Resources. He said there are three requirements to be met before a temporary Educator can be absorbed into a permanent position. The educator must be a South African Citizen, must have been in temporary employment for a period exceeding three months and must have the relevant qualifications, namely, Primary Teachers Diploma, Secondary Teachers Diploma or Bachelor of Education Degree. The Applicant is in possession of a Higher Diploma in Adult Basic Education and Training. Therefore, she did not meet the requirements for absorption into a permanent position. The Department of Higher Education and Training evaluated the Applicant’s qualifications and found that the Applicant cannot teach in a main stream School. The reason for non-appointment was because her qualification was meant for Adult Learners (ABET) and CET Colleges.
[17] Under cross-examination the Respondent confirmed that only Educators who are in possession of Primary Teachers Diploma, Secondary Teachers Diploma or Bachelor of Education Degree can be absorbed into permanent positions.
ANALYSIS OF ARGUMENT AND EVIDENCE
[18] The dispute in essence amounts to whether, on the facts of the matter, the applicant has discharged the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[19] In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of 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; or to retain the employee 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.
[20] It is common cause that the parties entered into a written temporary fixed term contract. The duration of the contract was three months. Despite the written contract, the Applicant was informed verbally that her contract will not be renewed. I reject the Applicant’s argument that she was not warned that her contract would not be renewed. The reason I say so is because the Applicant conceded that she was verbally told that her contract will not be renewed. Furthermore, the Applicant’s contract of employment specified the start and an end date of employment. It is my finding that the Applicant knew well in advance of the termination date of her employment. I accept the Respondent’s argument that she can only be absorbed into a permanent position only when she has obtained The Degree in Education.
[21] I accept the Respondent’s argument that the Applicant was not dismissed but her contract came to an end.
[22] The Applicant failed to adduce evidence that proved that she had a reasonable expectation that her contract would be renewed.
[23] I am satisfied that the Applicant is not possession of the Primary Teachers Diploma, Secondary Teachers Diploma or Bachelor of Education Degree. I am convinced by the Respondent’s argument that the Applicant did not meet the minimum requirements for absorption in a permanent position of an Educator.
[24] It is further my finding that the Applicant failed to prove that her qualification was equivalent to Bachelor of Education Degree.
[25] In NUM obo Mpaki vs. CCMA & Others JR 1983/2014 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 the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors, which may influence such a finding, namely (a) agreements (b) undertakings by the employer, (c) custom or practice in regard to renewal, (d) the availability of the posts, (e) the purpose or reason for conclusion of the fixed term contract, (f) inconsistent conduct, (g) failure to give reasonable notice, (h) the nature of the business. The list is not exhaustive.
[26] In view of the above analysis, it is my finding that the Applicant has failed to discharge the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
AWARD
[27] It is my finding that the Applicant was not dismissed but her temporary contract of employment came an end.
[28] It is further my finding that the Applicant did not meet the minimum requirements as set out for appointment in a permanent position.
[29] The Applicant is not entitled to any relief.
[30] The Applicant’s referral of a dispute is dismissed.
ELRC PART-TIME PANELLIST: PAUL PHUNDU