PSES856-18/19GP
PSES856-18/19GP
Award Date:
3 May 2019
Case Number: PSES856-18/19GP
Province: Gauteng
Applicant: NEHAWO obo MABOKACHABA NN
Respondent: DEPT OF HIGHER EDUC – TSHWANE NORTH TVET COLLEGE
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 3 May 2019
Arbitrator: Justice Mthombeni
Case No: PSES856-18/19GP
In the matter between
NEHAWO obo MABOKACHABA Applicant
And
DEPT OF HIGHER EDUC – TSHWANE NORTH TVET COLLEGE Respondent
ARBITRATOR: Justice Mthombeni
HEARD: 24 April 2019
FINALISED: 24 April 2019
DELIVERED: 03 May 2019
SUMMARY: Labour Relations Act 66 of 1996 – Meaning of Dismissal - Termination of Contract – LRA s 186 (1) (b) (i) and (ii) – Dismissal means an employee employed in terms of a fixed – term contract of employment reasonably expected the employer – to renew 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 the 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. Employee on fixed – term contract – Dismissal not proven.
DETAILS OF HEARING AND REPRESENTATION
1. This is an award in the arbitration matter between Mr. NN Mabokachaba (the applicant) and Department of Higher Education – Tshwane North TVET College (the respondent) held on 24 April 2019 at Tshwane North TVET College in Pretoria.
2. The applicant was represented by Mr. Leonard Sidimela, a union official from NEHAWU. The respondent was represented by Mr. Mduduzi Ngwenya, an IR Officer. The respondent handed in a bundle of documents marked B. The applicant handed in a bundle of documents marked A.
3. Oral closing arguments were tendered by both parties. The proceedings were mechanically recorded.
ISSUE TO BE DETERMINED
4. Dismissal is in dispute. I am required to determine whether the applicant was dismissed or not and to order appropriate relief in the circumstances.
BACKGROUND TO THE DISPUTE
5. The applicant is challenging the fairness of the termination of his temporary contract of employment. The applicant was employed by the respondent as a Post Level 1 Lecturer (Civil) on a fixed – term contract of employment for a period of 11 months (from 27 February 2018 until 31 December 2018). He was stationed at Soshanguve North Campus. He was allegedly dismissed on 31 December 2018 through a letter of notice dated 11 October 2018 to the effect that his fixed – term contract will expire on 31 December 2018. He had an expectation that his fixed – term contract of employment will be renewed or alternatively that, he will be retained on an indefinite basis but it was not renewed nor retained as provided for by sections 186 (1) (b) and 198B of the Labour Relations Act 66 of 1995 (as amended) (the LRA). He earned a salary of R254 503.63 per annum.
6. The respondent contended that the applicant was not dismissed but that he was on a fixed –term contract of employment which came to an end, and further that his expectation of renewal of his fixed – term contract was unreasonable as he was aware that it was of a limited duration with a fixed date which he agreed to and signed for it. Therefore, Council did not have jurisdiction to hear the matter as the applicant was not dismissed.
SUMMARY OF PARTIES’ SUBMISSIONS AND ARGUMENT
I will only provide a brief survey of submissions/evidence relied upon for my findings as provided for in section 138 (7) of the Labour Relations Act 66 of 1995 (the LRA).
Evidence on behalf of the Applicant
Mr. NN Mabokachaba testified as follows:
7. He was appointed on 02 May 2017 to 31 December 2017. His contract was renewed on 05 March 2018 to 31 December 2018. He had a reasonable expectation that his contract of employment will be renewed because, his understanding was that, the respondent was supposed to offer him a permanent position or an extension of contract as provided for by section 186 (1) (b) of the LRA.
8. ELRC Collective Agreement 1 of 2014 par 5.2.1.1 provides for absorption or appointment of temporary educators. ELRC Collective Agreement 4 of 2018 par 4.2.1 provides for conversion of his temporary status of employment to permanent appointment. There are lecturers who’s fixed – term contracts of employment were renewed (for example Mr. Magongwa, Mr Hlongwane, Ms. Mamogale, Mr. Hlatshwayo, Mr. Sebola and Mr. Hlahla).
9. His expectation of renewal of his contract of employment was also informed by his interaction with his HOD (Mr. Mnisi) who advised him to apply for his position when it was advertised. Mr. Mnisi said, there are posts and he needed to apply as an operative procedure. He does not have a teaching qualification.
10. Under cross examination the applicant confirmed that he was employed on a fixed – term contract of employment; that he was aware that the position he initially applied for was for a period of 9 months, that is, from 02 May 2017 to 31 December 2017. His contract expressly provided that he will have no expectation of permanent employment and that if the employer further required his services, a new agreement must be negotiated and entered into. He was given 3 months notice that his contract will expire on 31 December 2017. His second fixed – term contract ws for a period of 11 months from 27 February 2018 until 31 December 2018. He was notified 3 months before in writing that his fixed – term contract will expire on 31 December 2018. He was aware of the 63% threshold that placed a limit on certain number of staff (a moratorium on filling or advertising of vacancies
Evidence on behalf of the Respondent
Mr. Hillian Mnisi testified as follows:
11. He is an HOD for Engineering Studies NCV section. His duties entail management of the section and running of the curriculum. If there is a short fall in lecturers he would approach the HR unit through a submission and the HR will take over the recruitment process for staff. He knows the applicant but he was not his direct supervisor. During September 2018, the applicant approached him to enquire if there will be temporary posts at the end of the year 2018. He said there would be posts towards the end of the year. Indeed posts were advertised for potential candidates to apply. About 2 months ago (i.e. February and March 2019) the applicant informed him that, he applied but he was not appointed.
12. The applicant’s fixed – term employment was not for 12 consecutive months. Absorption of temporary staff was only possible if there was a substantive vacant post available on the staff establishment. The applicant’s expectation of his contract being renewed was unreasonable because he was on a fixed – term contract and there was a moratorium that new posts will not be advertised as a threshold of 63% was met.
Ms. Mapula Moseamedi testified as follows:
13. She is the recruitment officer for the respondent. She advertises posts and conducts short listing and interviews. There should be an approved submission before she could advertise a post. The College Council posts are temporary posts, filled on a fixed – term basis. The applicant was employed on a fixed – term contract of employment, and he was given written notice to the effect that his contract was coming to an end on 31 December 2018. The applicant was not employed for 12 consecutive months. The College was given a moratorium by the Department of Higher Education that, it had exceeded the 63% threshold. New posts were only advertised towards the end of 2018, as the College post establishment was below the 63% threshold. The applicant’s fixed contract of employment expressly provided that, the applicant will have no expectation of permanent employment.
ANALYSIS OF PARTIES’ SUBMISSIONS AND ARGUMENT
14. Section 192 (1) and (2) of the LRA provides that, “in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. This means that the onus rests on the employee to prove that a dismissal actually occurred. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment.
15. In dismissal matters, the existence of a dismissal is considered a jurisdictional precondition to arbitration in the Council. This is because the provisions governing the procedures for dismissal disputes are premised on the assumption that an employee has been dismissed. Therefore, a commissioner is obliged to determine whether a dismissal indeed occurred.
16. In this matter the respondent denied that the applicant was dismissed and documentary proof was submitted to the effect that the applicant was employed on a fixed – term contract of employment that came to an end on a specified date (i.e. 31 December 2018). The respondent further submitted that, ELRC Collective Agreement NO. 2 of 2013 (Permanent Appointment of Serving Temporary and Contract Lecturers Who Have Been in the Employ of DHET For A Period of 12 Months or Longer) par 4.1 provides that, temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months or more and are currently in a vacant funded substantive post will be made permanent. The applicant was not on a 12 months contract. No grievance was lodged by the applicant for alleged failure of the respondent to absorb him.
17. It is noteworthy that, section 198B as relied upon by the applicant is not applicable in this matter as the applicant is earning R254 503.00 in excess of the threshold prescribed by the Minister in terms of the BCEA which is R205 433.30 per annum.
18. Not even a single lecturer was called as a witness by the applicant to corroborate the applicant’s allegation to the effect that, all the temporary lecturers who were employed on a fixed – term contract at the same time with him, were employed on a permanent basis after the applicant’s contract was terminated.
19. The applicant did not provide a satisfactory explanation for his expectation of the renewal of his fixed - term employment contract except that, section 186 (1) (b) of the LRA required the respondent to renew his contract and that, there was an award issued by a commissioner to the effect that, all employees who are on a fixed – term contract of employment more than 3 months are supposed to be deemed to be employed on an indefinite basis by the employer. It is clear that, the applicant misunderstood the application and interpretation of section 198B of the LRA, especially the fact that it did not apply to him as he was earning in excess of the earnings threshold. The arbitration award relied upon by the applicant (which formed part of his bundle) was in relation to fixed – term contracts with employees earning below earnings threshold, thereby, not applicable to him.
20. The court in University of Pretoria v CCMA (2012) 2 BLLR 164 (LAC) held that section 186 (1) (b) of the LRA does not provide for employees on fixed term/temporary employment contracts to claim that they had a reasonable expectation of permanent employment. Section 186 (1) (b) of the LRA does not provide for an automatic expectation of renewal of fixed – term contract of employment or retention of an employee on fixed – term contract on indefinite basis as argued by the applicant’s representative. An expectation of renewal of fixed –term contract or retention of an employee on a fixed- term contract on an indefinite basis is based facts and not mere arguments.
21. In view of the documentary evidence before me and submissions by both parties, I was satisfied that the applicant was employed on a fixed – term contract of employment, which came to an end on 31 December 2018. The test whether onus has been discharged in dismissal disputes is the “balance of probabilities” and the facts required to prove a dismissal depend on the nature of the dismissal that is alleged. The applicant did not discharge the onus to prove that he was dismissed. In view of the above brief discourse, I accordingly find on the balance of probabilities that the applicant was not dismissed.
RULING
In the premises I make the following order:
22. The applicant was not dismissed.
23. The applicant’s claim is dismissed.
24. The Council is directed to close the file.
25. No order as to costs is made.
____________________
Justice S Mthombeni
ELRC Panellist
Province: Gauteng
Applicant: NEHAWO obo MABOKACHABA NN
Respondent: DEPT OF HIGHER EDUC – TSHWANE NORTH TVET COLLEGE
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 3 May 2019
Arbitrator: Justice Mthombeni
Case No: PSES856-18/19GP
In the matter between
NEHAWO obo MABOKACHABA Applicant
And
DEPT OF HIGHER EDUC – TSHWANE NORTH TVET COLLEGE Respondent
ARBITRATOR: Justice Mthombeni
HEARD: 24 April 2019
FINALISED: 24 April 2019
DELIVERED: 03 May 2019
SUMMARY: Labour Relations Act 66 of 1996 – Meaning of Dismissal - Termination of Contract – LRA s 186 (1) (b) (i) and (ii) – Dismissal means an employee employed in terms of a fixed – term contract of employment reasonably expected the employer – to renew 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 the 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. Employee on fixed – term contract – Dismissal not proven.
DETAILS OF HEARING AND REPRESENTATION
1. This is an award in the arbitration matter between Mr. NN Mabokachaba (the applicant) and Department of Higher Education – Tshwane North TVET College (the respondent) held on 24 April 2019 at Tshwane North TVET College in Pretoria.
2. The applicant was represented by Mr. Leonard Sidimela, a union official from NEHAWU. The respondent was represented by Mr. Mduduzi Ngwenya, an IR Officer. The respondent handed in a bundle of documents marked B. The applicant handed in a bundle of documents marked A.
3. Oral closing arguments were tendered by both parties. The proceedings were mechanically recorded.
ISSUE TO BE DETERMINED
4. Dismissal is in dispute. I am required to determine whether the applicant was dismissed or not and to order appropriate relief in the circumstances.
BACKGROUND TO THE DISPUTE
5. The applicant is challenging the fairness of the termination of his temporary contract of employment. The applicant was employed by the respondent as a Post Level 1 Lecturer (Civil) on a fixed – term contract of employment for a period of 11 months (from 27 February 2018 until 31 December 2018). He was stationed at Soshanguve North Campus. He was allegedly dismissed on 31 December 2018 through a letter of notice dated 11 October 2018 to the effect that his fixed – term contract will expire on 31 December 2018. He had an expectation that his fixed – term contract of employment will be renewed or alternatively that, he will be retained on an indefinite basis but it was not renewed nor retained as provided for by sections 186 (1) (b) and 198B of the Labour Relations Act 66 of 1995 (as amended) (the LRA). He earned a salary of R254 503.63 per annum.
6. The respondent contended that the applicant was not dismissed but that he was on a fixed –term contract of employment which came to an end, and further that his expectation of renewal of his fixed – term contract was unreasonable as he was aware that it was of a limited duration with a fixed date which he agreed to and signed for it. Therefore, Council did not have jurisdiction to hear the matter as the applicant was not dismissed.
SUMMARY OF PARTIES’ SUBMISSIONS AND ARGUMENT
I will only provide a brief survey of submissions/evidence relied upon for my findings as provided for in section 138 (7) of the Labour Relations Act 66 of 1995 (the LRA).
Evidence on behalf of the Applicant
Mr. NN Mabokachaba testified as follows:
7. He was appointed on 02 May 2017 to 31 December 2017. His contract was renewed on 05 March 2018 to 31 December 2018. He had a reasonable expectation that his contract of employment will be renewed because, his understanding was that, the respondent was supposed to offer him a permanent position or an extension of contract as provided for by section 186 (1) (b) of the LRA.
8. ELRC Collective Agreement 1 of 2014 par 5.2.1.1 provides for absorption or appointment of temporary educators. ELRC Collective Agreement 4 of 2018 par 4.2.1 provides for conversion of his temporary status of employment to permanent appointment. There are lecturers who’s fixed – term contracts of employment were renewed (for example Mr. Magongwa, Mr Hlongwane, Ms. Mamogale, Mr. Hlatshwayo, Mr. Sebola and Mr. Hlahla).
9. His expectation of renewal of his contract of employment was also informed by his interaction with his HOD (Mr. Mnisi) who advised him to apply for his position when it was advertised. Mr. Mnisi said, there are posts and he needed to apply as an operative procedure. He does not have a teaching qualification.
10. Under cross examination the applicant confirmed that he was employed on a fixed – term contract of employment; that he was aware that the position he initially applied for was for a period of 9 months, that is, from 02 May 2017 to 31 December 2017. His contract expressly provided that he will have no expectation of permanent employment and that if the employer further required his services, a new agreement must be negotiated and entered into. He was given 3 months notice that his contract will expire on 31 December 2017. His second fixed – term contract ws for a period of 11 months from 27 February 2018 until 31 December 2018. He was notified 3 months before in writing that his fixed – term contract will expire on 31 December 2018. He was aware of the 63% threshold that placed a limit on certain number of staff (a moratorium on filling or advertising of vacancies
Evidence on behalf of the Respondent
Mr. Hillian Mnisi testified as follows:
11. He is an HOD for Engineering Studies NCV section. His duties entail management of the section and running of the curriculum. If there is a short fall in lecturers he would approach the HR unit through a submission and the HR will take over the recruitment process for staff. He knows the applicant but he was not his direct supervisor. During September 2018, the applicant approached him to enquire if there will be temporary posts at the end of the year 2018. He said there would be posts towards the end of the year. Indeed posts were advertised for potential candidates to apply. About 2 months ago (i.e. February and March 2019) the applicant informed him that, he applied but he was not appointed.
12. The applicant’s fixed – term employment was not for 12 consecutive months. Absorption of temporary staff was only possible if there was a substantive vacant post available on the staff establishment. The applicant’s expectation of his contract being renewed was unreasonable because he was on a fixed – term contract and there was a moratorium that new posts will not be advertised as a threshold of 63% was met.
Ms. Mapula Moseamedi testified as follows:
13. She is the recruitment officer for the respondent. She advertises posts and conducts short listing and interviews. There should be an approved submission before she could advertise a post. The College Council posts are temporary posts, filled on a fixed – term basis. The applicant was employed on a fixed – term contract of employment, and he was given written notice to the effect that his contract was coming to an end on 31 December 2018. The applicant was not employed for 12 consecutive months. The College was given a moratorium by the Department of Higher Education that, it had exceeded the 63% threshold. New posts were only advertised towards the end of 2018, as the College post establishment was below the 63% threshold. The applicant’s fixed contract of employment expressly provided that, the applicant will have no expectation of permanent employment.
ANALYSIS OF PARTIES’ SUBMISSIONS AND ARGUMENT
14. Section 192 (1) and (2) of the LRA provides that, “in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. This means that the onus rests on the employee to prove that a dismissal actually occurred. If the existence of the dismissal is established, the employer must prove that the dismissal is fair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment.
15. In dismissal matters, the existence of a dismissal is considered a jurisdictional precondition to arbitration in the Council. This is because the provisions governing the procedures for dismissal disputes are premised on the assumption that an employee has been dismissed. Therefore, a commissioner is obliged to determine whether a dismissal indeed occurred.
16. In this matter the respondent denied that the applicant was dismissed and documentary proof was submitted to the effect that the applicant was employed on a fixed – term contract of employment that came to an end on a specified date (i.e. 31 December 2018). The respondent further submitted that, ELRC Collective Agreement NO. 2 of 2013 (Permanent Appointment of Serving Temporary and Contract Lecturers Who Have Been in the Employ of DHET For A Period of 12 Months or Longer) par 4.1 provides that, temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months or more and are currently in a vacant funded substantive post will be made permanent. The applicant was not on a 12 months contract. No grievance was lodged by the applicant for alleged failure of the respondent to absorb him.
17. It is noteworthy that, section 198B as relied upon by the applicant is not applicable in this matter as the applicant is earning R254 503.00 in excess of the threshold prescribed by the Minister in terms of the BCEA which is R205 433.30 per annum.
18. Not even a single lecturer was called as a witness by the applicant to corroborate the applicant’s allegation to the effect that, all the temporary lecturers who were employed on a fixed – term contract at the same time with him, were employed on a permanent basis after the applicant’s contract was terminated.
19. The applicant did not provide a satisfactory explanation for his expectation of the renewal of his fixed - term employment contract except that, section 186 (1) (b) of the LRA required the respondent to renew his contract and that, there was an award issued by a commissioner to the effect that, all employees who are on a fixed – term contract of employment more than 3 months are supposed to be deemed to be employed on an indefinite basis by the employer. It is clear that, the applicant misunderstood the application and interpretation of section 198B of the LRA, especially the fact that it did not apply to him as he was earning in excess of the earnings threshold. The arbitration award relied upon by the applicant (which formed part of his bundle) was in relation to fixed – term contracts with employees earning below earnings threshold, thereby, not applicable to him.
20. The court in University of Pretoria v CCMA (2012) 2 BLLR 164 (LAC) held that section 186 (1) (b) of the LRA does not provide for employees on fixed term/temporary employment contracts to claim that they had a reasonable expectation of permanent employment. Section 186 (1) (b) of the LRA does not provide for an automatic expectation of renewal of fixed – term contract of employment or retention of an employee on fixed – term contract on indefinite basis as argued by the applicant’s representative. An expectation of renewal of fixed –term contract or retention of an employee on a fixed- term contract on an indefinite basis is based facts and not mere arguments.
21. In view of the documentary evidence before me and submissions by both parties, I was satisfied that the applicant was employed on a fixed – term contract of employment, which came to an end on 31 December 2018. The test whether onus has been discharged in dismissal disputes is the “balance of probabilities” and the facts required to prove a dismissal depend on the nature of the dismissal that is alleged. The applicant did not discharge the onus to prove that he was dismissed. In view of the above brief discourse, I accordingly find on the balance of probabilities that the applicant was not dismissed.
RULING
In the premises I make the following order:
22. The applicant was not dismissed.
23. The applicant’s claim is dismissed.
24. The Council is directed to close the file.
25. No order as to costs is made.
____________________
Justice S Mthombeni
ELRC Panellist