Case Number: PSES850-18/19 WC
Province: Western Cape
Applicant: Mr Rimton Tawona Mberi
Respondent: Department of Higher Education and Training – West Coast Technical Vocational Education and Training (TVET) College (First Respondent)
Issue: Unfair Labour Practice - Provision of Benefits
Venue: West Coast TVET College in Vredendal.
Award Date: 5 July 2019
Arbitrator: M Reza Slamang
Case Number: PSES850-18/19 WC
Commissioner: M Reza Slamang
Date of Award: 05 July 2019
In the ARBITRATION between
Mr Rimton Tawona Mberi
Department of Higher Education and Training –
West Coast Technical Vocational Education and Training (TVET) College
Applicant’s representative: Mr Willie Bosch
Applicant’s address: C/O Willie Bosch Attorneys
49 Siddle Street
Telephone: 018 462-0407
Respondent’s representative: Mr Mario Boezak
Respondent’s address: Cape Town Regional Office
6th floor, Golden Acre
Telephone: 021 204 1829
DETAILS OF HEARING AND REPRESENTATION
1. This is the arbitration award following a contested arbitration that convened on 18 June 2019 at the West Coast TVET College in Vredendal.
2. The applicant, Mr Rimton Tawona Mberi, was represented by Mr Willie Bosch an attorney with Willie Bosch Attorneys.
3. The respondent, the Department of Higher Education and Training - West Coast Technical Vocational Education and Training (TVET) College, was represented by Mr Mario Boezak an employee (assistant director) of the respondent.
4. Although the process was conducted in an inquisitorial manner, the parties referred to bundles of documents, adduced evidence and addressed written closing arguments in summation of their respective cases.
5. The proceedings were conducted in English and was digitally recorded.
THE ISSUE TO BE DECIDED
6. The issue to be determined is whether the dismissal of the applicant, Mr Rimton Tawona Mberi, was for a fair reason and effected in accordance with a fair procedure, as contemplated by section 188(1)(a) and section 188(1)(b) of the Labour Relations Act 66 of 1995 as amended (“LRA”).
BACKGROUND TO THE DISPUTE
7. The applicant commenced employment on 01 November 2017. He worked as an Electrical Lecturer at the West Coast TVET College earning a monthly salary of R 21,908.25.
8. On 26 November 2018 during a telephone discussion with Mr Swartbooi (the deputy CEO of the College), the applicant was informed that his services were terminated with immediate effect.
9. The applicant took issue with this turn of events and served and filed an unfair dismissal claim. The relief sought by him is a finding that he was dismissed, his dismissal was unfair and an order of compensation. The respondent opposed the applicant’s claim of compensation on the basis that the dismissal was procedurally and substantively fair and sought a dismissal of the claim.
SUMMARY OF THE EVIDENCE AND ARGUMENT
10. While, for purposes of brevity in issuing this award, I do not restate the evidence, submissions and argument in full, I note that I have considered all the evidence, submissions and argument of the parties, but shall only refer to that which I regard as necessary to substantiate my findings and the determination of the dispute.
11. The applicant noted that his services were terminated with immediate effect because his work permit expired on 26 November 2018. He is a Zimbabwean citizen and during 2009 he was issued with a Quota Permit which was valid for five years. His Quota Permit had been reissued with an expiry date of 26 November 2018.
12. The Quota Permit authorised him to work in South Africa up to the expiry date. On 05 November 2018 he applied for a Critical Skills Permit since the Quota Permit had been done away with. On 26 November 2018 despite him having provided proof of his application for a Critical Skills Permit the respondent informed him that his employment was terminated because his Permit expired.
13. As at the date of the arbitration proceedings his application for a Critical Skills Permit was rejected and he has consequently lodged an appeal against this decision.
14. The applicant contended that he was dismissed without notice of termination of employment. His summary dismissal was communicated to him on 26 November 2018 without any pre-dismissal procedures having been followed and/or that the pre-dismissal procedures followed were entirely unfair.
15. The applicant also contended that his dismissal was substantively unfair. He averred that the expiry of his Quota Permit was not a fair and valid reason for his dismissal especially since the respondent failed to do anything to retain him and failed to assist him to obtain a Permit.
16. The respondent noted that the applicant was employed on a temporary basis ‘as he was a Zimbabwean national.’ Since his Permit was due to expire on 26 November 2018, the respondent assisted to renew his Permit by granting him a leave of absence during September 2018 and again during October 2018.
17. The respondent contended that in terms of Section 38(1) and Section 49(3) of the Immigration Act 13 of 2002 ‘it is a contravention … for employers to retain employees after the expiry of their Permits’. The contract of employment accordingly terminated by operation of law.
18. The respondent noted further that section 10(1) of the Public Service Act 103 of 1994 stipulates that ‘no person shall be appointed permanently to a post unless she or he is a South African citizen or permanent resident. Foreign nationals who are not in possession of a permanent residence permit may therefore only be employed temporarily in departments.’
19. In terms of paragraph 5.5.4 of the Policy on the Utilisation of Foreign Nationals to Address Human Resource and Skills Needs in the Public Service (issued in 2009 by the Department of Public Service and Administration) ‘the employment of foreign nationals must be on a fixed term basis, the term of employment must not exceed the term of the relevant work permit and the employment relationship must be on a full-time basis in a funded vacant post.’
20. The respondent noted that although it was the sole responsibility of the applicant to renew his permit, knowing when it was due to expire, it (the respondent) nevertheless reminded the applicant prior to the expiry of his permit to renew his permit. He was given time off to attend to the renewal. During January 2019 after his employment had terminated the respondent sought a further update from him ‘as it was still trying to employ/accommodate him provided that he was in possession of a valid Permit.’
21. The respondent contended that section 38(1)(b) stipulates that ‘No person shall employ a foreigner whose status does not authorise him or her to be employed by such person.’ This legal capacity the respondent contended the applicant must comply with to ensure that he may be employed by the respondent. The contractual defence of supervening impossibility and/or illegality of performance therefore renders it impossible and/or illegal to keep the applicant in employment.
22. In the circumstances the respondent adhered to the fundamental fair labour principle of giving the applicant a fair reason for the termination of his employment which the respondent did on 26 November 2018. What is more the approach adopted by the respondent in terms of procedural fairness was reasonable.
23. The services of the applicant were terminated for a fair reason being a termination by operation of law. He was reminded to renew his permit; he was given time off to attend to the renewal of his permit and the respondent waited until the expiry of his permit at which point, he was informed of the termination of his employment. This the respondent argued renders the dismissal of the applicant to be procedurally and substantively fair.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
24. The case of the applicant is essentially that the actions of the respondent amount to a dismissal that is procedurally and substantively unfair. In terms of section 192(1) of the LRA the applicant must establish the existence of the dismissal.
25. In terms of section 192(2) of the LRA the respondent must prove that the dismissal of the applicant is fair if the existence of the dismissal is established.
26. The fairness of a dismissal is assessed against whether the dismissal of the applicant was for a fair reason and effected in accordance with a fair procedure, as contemplated by section 188(1)(a) and section 188(1)(b) of the LRA. Section 188(2) enjoins a consideration of any relevant code of good practice issued in terms of the LRA when considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure.
27. Although the respondent contended that the contract of employment terminated by operation of law, I am of the view that given the circumstances and the facts in this matter that the respondent terminated the employment of the applicant on 26 November 2018.
28. Section 186(1) of the LRA provides that a dismissal means that ‘an employer has terminated employment with or without notice’. The respondent terminated the contract of employment of the applicant with immediate effect on 26 November 2018 because his work permit had expired. There can therefore be no doubt that this constitutes a termination of the employment of the applicant and amounts to a dismissal as envisaged by section 186(1) of the LRA.
29. That the applicant was dismissed is further established in that no evidence was produced that he was employed on a fixed term basis with the term set to not exceed the term of his work permit. He was therefore employed on an indefinite contract of employment. Moreover, the contract of employment made no mention of his employment and/or ongoing employment being contingent upon him having a work permit.
30. This notwithstanding and on 26 November 2018 Mr Swartbooi informed the applicant that his services were terminated with immediate effect because his work permit had expired. This would not have been required had the respondent employed the applicant on a fixed term contract to expire upon the expiry of his work permit.
31. The applicant was therefore dismissed. He was dismissed because his work permit had expired. Section 8(1) of the Employment Services Act 4 of 2014 stipulates that an employer may not employ a foreign national prior to such foreign national producing an applicable and valid work permit, issued in terms of the Immigration Act. I agree therefore that the dismissal of the applicant was a necessity to supervene illegality of performance. The dismissal is for this reason substantively fair.
32. The applicant appears to labour under the impression that an application for a work permit is sufficient to comply with the legal requirements and he should have been retained based on the application he had made. This is however incorrect. Section 8(1) of the Employment Services Act 4 of 2014 requires the applicant to produce an applicable and valid work permit to ensure that he may be employed.
33. What is more, and at the time of his initial permit being issued the applicant knew exactly when his permit was set to expire. Despite this, the overwhelming evidence is that he failed to do anything regarding the renewal thereof and/or obtaining a new permit. His call to action was when the respondent reminded him to renew his permit.
34. The respondent furthermore allowed him time-off during September 2018 and October 2018 to attend to the renewal of his permit. When his permit expired and he failed to produce a valid work permit he was informed of the termination of his employment. These pre-dismissal procedures, in my assessment, are both reasonable and fair in the circumstances.
35. For the reasons discussed above, I conclude that the dismissal of the applicant was procedurally and substantively fair. The claim of an unfair dismissal must therefore fail. The relief sought by the applicant is dismissed.
36. The dismissal of the applicant, Mr Rimton Tawona Mberi, was procedurally and substantively fair. His claim for relief is dismissed.
M Reza Slamang