PSES165-18/19NW
PSES165-18/19NW
Award Date:
7 October 2019
Case Number: PSES165-18/19NW
Province: North West
Applicant: Mr Munemo Manasa Eria
Respondent: Department of Higher Education and Training
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Orbit College Offices, Rustenburg.
Award Date: 7 October 2019
Arbitrator: Paul Phundu
Case Number: PSES165-18/19NW
Panellist: Paul Phundu
Date of Award: 7 October 2019
In the ARBITRATION between:
Mr Munemo Manasa Eria Employee
And
Department of Higher Education and Training - (North West Employer
Employer’s representative: Ms Masego Motshele
Employer’s address: Department of Higher Education & Training
Private Bag x 82096
Rustenburg
0300
Telephone: 014 592 7014 / 081 090 4791
Employee’s representative: Mr Joe Marikosi
Respondent’s address: House No 3609
Zone 3 Itsoseng
2744
Telephone: 083 269 8549
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Mr Munemo Manasa Eria, (hereinafter referred to as the Applicant) and Department of Higher Education and Training, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 2 September and 1 October 2019 at Orbit College Offices, Rustenburg.
[2] The Applicant was present at the arbitration and was represented by, Mr Joe Marikosi, a Legal Representative from Joe Marikoni Attorneys. The Respondent was represented by, Ms Masego Motshele, 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] Both parties submitted bundles of documents marked Annexure “A” and “B”, the content was not in dispute.
ISSUE TO BE DECIDED
[6] I am required to determine whether the respondent had created a reasonable expectation in that the applicant’s temporary fixed term contract would be renewed or not. If reasonable expectation for a renewal of the fixed term contract is established, I must order the renewal of the fixed term contract.
BACKGROUND TO THE ISSUE
[7] The Applicant was employed on a temporary basis as an educator, earning a salary of R16, 564. 5 per month.
[8] The recent fixed term contract entered into by the parties commenced on the 1st of January 2019 and ended on the 31st of March 2019. Previously, the applicant was employed on a fixed term contract starting on 1 February 2013 till 18 January 2015. From 2015 till 2018 the applicant worked temporarily without a contract of employment. The duration of the last contract was three months.
SURVEY OF ARGUMENTS AND EVIDENCE
Applicant’s case
[9] Mr Manasa Manemu (Zimbabwean National) testified under oath that his contract of employment was performance based. He performed well and met all the performance criteria set by the respondent. He was on a work visa permit and he does not possess a South African identity document. On the 10 January 2019, the respondent convened a meeting where all temporary employed lecturers were in attendance. The applicant also attended this meeting. In the meeting the respondent explained that the fixed term contracts will be advertised for permanent positions and all the lecturers were encouraged to apply for these permanent positions. The applicant did not apply. The applicant was given notice of the termination on time. He signed the three months fixed term contract on the premise that it would be renewed and aligned to his work permit. This did not happen.
[10] He was told by Mr Solomon Matjiane- Deputy Principal-Corporate Services to apply for permanent residence so that he can enjoy more benefits. According to the applicant, this created an expectation that his temporary fixed term contract would be renewed. The applicant said he was told by the respondent not to apply for the permanent position. The applicant said it was unfair to advertise his temporary position.
[11] Under cross-examination the applicant confirmed that he attended a meeting on the 10 January 2019, however, he was not sure about the purpose of the meeting. The applicant conceded that the meeting was attended by South African and Foreign lecturers employed by the respondent. Both South African and Foreign lecturers were also informed that their positions will be advertised. He said he was told by Mr Gilbert Mafojane, Human Resources Manager, not to apply for the permanent position. The applicant further confirmed that he was notified in writing a month in advance that his contract will expire on 30 March 2019.
Respondent’s case
[12] Mr Solly Matjiane testified under oath that he is employed by the respondent as a Deputy Principal-Corporate Services. He knew the applicant as an English Lecturer at Orbit College. He confirmed encouraging the applicant to apply for permanent residence so that he can enjoy more benefits.
[13] The applicant is a Zimbabwean and the legislation, that is, Policy on Utilisation of Foreign Nationals does not allow him to be appointed permanently. However, if he has permanent residence he can be appointed permanently provided that vacancies exist and are advertised. Due to operational requirement of the respondent, a decision was taken that all temporary positions should be advertised and people should be appointed permanently. The respondent denied having promised the applicant that he would renew his contract of employment. He did not undertake to renew the applicant’s contract of employment. The environment is highly regulated and there are processes and procedures to be followed before appointments are confirmed. If there was an offer to the applicant, that would have been reduced in writing. It is a lie that he promised to renew the applicant’s contract of employment.
[14] The respondent said it was not aware of any special arrangement made between the applicant and the Human Resources Manager.
[15] Under cross examination the respondent said the renewal of contracts was based on the needs of the college. All fixed term employees were affected and their positions were made permanent. He said he did not promise to renew the applicant’s contract of employment. He said he would seek advice from the Department of Higher Education and Training regarding the status of temporary lecturers. The decision was that all temporary positions should be made permanent and the advert ensued. All affected employees were duly notified of this decision.
[16] Mr Gilbert Mafojane testified under oath that he is employed by the respondent as a Human Resources Manager. He was appointed on 1 June 2018. He knows the applicant as an English Lecturer at Orbit College. He said the applicant was given a three months fixed term contract of employment and he was never told that his contract would be renewed. On the 10 January 2019, he invited the applicant and other lecturers to a meeting. The purpose of the meeting was to inform the lecturers who were employed on a temporary basis that their contracts of employment would not be renewed and the temporary positions they occupied have been made permanent. As a result, the positions would be advertised and those interested were encouraged to apply. The applicant elected not to apply for the permanent position. In the meeting the attendees were told the reason why the respondent decided to do away with these temporary positions. It was because of the respondent’s operational requirements and the need to have these positions filled permanently. All lecturers were given written notices a month in advance reminding them that their contracts of employment would expire on 30 March 2019 and would not be renewed. The respondent stated that at no stage did he promise the applicant that his temporary fixed term contract of employment would be renewed. He said it was a blatant lie that he promised to renew his contract of employment.
[17] He said under no circumstances that certain positions were reserved for certain individuals. Mr Solomon Matjiane has no power to appoint. Recruitment and Selection processes are above board.
[18] Under cross examination the respondent reiterated that the applicant was informed well in advance about the meeting of the 10 January 2019 even though he arrived late. The applicant was brought on board and informed of the purpose of the meeting. The respondent was not in a position to treat the applicant in any special way. The application for permanent residence or work-permit does not create an expectation for renewal of a fixed term contract.
ANALYSIS OF ARGUMENT AND EVIDENCE
[19] 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.
[20] 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.
[21] It is common cause that the parties entered into a written temporary fixed term contract of employment. The duration of the contract was three months. Despite the written contract, the Applicant was informed verbally and in writing that his fixed term contract of employment will not be renewed. I am not persuaded by the applicant’s argument that Mr Solomon Matjiane’s encouraging words, that is, “apply for permanent residence so that you can enjoy more benefits” created an expectation for the renewal of his fixed term contract. The reason I am not persuaded is because Mr Solomon Matjiane does not have powers to appoint lectures nor was he mandated to do so. The power to appoint lecturers resides with the Head of Department of Higher Education and Training. Moreover, the message from Mr Matjiane was explicitly clear in that it said apply for permanent residence so that you can enjoy more benefits. The message did not say after applying for permanent residence he will renew the applicant’s temporary contract of employment. The message did not talk about the renewal of a contract. The applicant new well in advance that his contract of employment would not be renewed. The applicant was given notice of termination well on time. This is substantiated by the meeting he attended on the 10 January 2019. In this meeting, the respondent made it clear to all the attendees that their temporary contracts of employment would not be renewed and their positions would be permanent. This was due to the respondent’s operational requirements. All the temporary lecturers, including the applicant were encouraged to apply for these permanent positions. The applicant elected not to apply for employment. The temporary position did not belong to the applicant. He was simply employed to occupy the position temporarily.
[22] It is my view that the applicant cannot later raise his hands and cry foul for not being employed whilst he was given an opportunity to contest a position of employment. The applicant is a victim of his own actions and the blame cannot be apportioned to the respondent. It is my finding that the statement by Mr Solomon Matjiane did not create any reasonable expectation of employment.
[23] In the absence of evidence before me that show that the applicant was promised a renewal of his contract of employment, I have no reason not to believe Mr Solly Matjiane’s argument that he did not promise to renew the applicant’s temporary contract of employment.
[24] I am convinced that the applicant was informed timeously of the reason why the position he occupied was made permanent and he and other job applicants were given an opportunity to apply and contest the position. The applicant was not the only employee affected by this change. I am convinced by the respondent’s testimony that the reason why it decided to do away with these temporary positions was because of its operational requirements and the need to have these positions filled permanently. I believe the decision to phase out these temporary contracts of employment was communicated to the applicant and his colleagues.
[25] It is my finding that the applicant knew as early as the 1 of January 2019 that his fixed term contract will not be renewed and will expire on 30 March 2019. This decision was repeated and emphasised by the respondent in the meeting held on the 10 January 2019 where the applicant was in attendance. The applicant failed to disprove the respondent’s argument that he lied and he was not promised that his contract of employment would be renewed. It is further my finding that the applicant dismally failed to adduce evidence that would plainly show that the respondent created an expectation that his temporary contract of employment would be renewed.
[26] In my view, it was improbable of the managers to create an expectation for the renewal of a single fixed term contract whilst the operational requirements of the respondent called for permanent appointments in all the lecturers temporary positions.
[27] The applicant failed to adduce evidence that proved that he had a reasonable expectation that his contract would be renewed.
[28] 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.
[29] It is my finding that the applicant has failed, on a balance of probabilities, to prove that the respondent created an expectation that his temporary fixed term contract of employment would be renewed.
AWARD
[30] It is my finding that the respondent did not create an expectation of a renewal of a fixed term contract of employment.
[31] The applicant is not entitled to any relief.
[32] The applicant’s referral of a dispute is dismissed.
ELRC PART-TIME PANELLIST: PAUL PHUNDU
Province: North West
Applicant: Mr Munemo Manasa Eria
Respondent: Department of Higher Education and Training
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Orbit College Offices, Rustenburg.
Award Date: 7 October 2019
Arbitrator: Paul Phundu
Case Number: PSES165-18/19NW
Panellist: Paul Phundu
Date of Award: 7 October 2019
In the ARBITRATION between:
Mr Munemo Manasa Eria Employee
And
Department of Higher Education and Training - (North West Employer
Employer’s representative: Ms Masego Motshele
Employer’s address: Department of Higher Education & Training
Private Bag x 82096
Rustenburg
0300
Telephone: 014 592 7014 / 081 090 4791
Employee’s representative: Mr Joe Marikosi
Respondent’s address: House No 3609
Zone 3 Itsoseng
2744
Telephone: 083 269 8549
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Mr Munemo Manasa Eria, (hereinafter referred to as the Applicant) and Department of Higher Education and Training, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 2 September and 1 October 2019 at Orbit College Offices, Rustenburg.
[2] The Applicant was present at the arbitration and was represented by, Mr Joe Marikosi, a Legal Representative from Joe Marikoni Attorneys. The Respondent was represented by, Ms Masego Motshele, 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] Both parties submitted bundles of documents marked Annexure “A” and “B”, the content was not in dispute.
ISSUE TO BE DECIDED
[6] I am required to determine whether the respondent had created a reasonable expectation in that the applicant’s temporary fixed term contract would be renewed or not. If reasonable expectation for a renewal of the fixed term contract is established, I must order the renewal of the fixed term contract.
BACKGROUND TO THE ISSUE
[7] The Applicant was employed on a temporary basis as an educator, earning a salary of R16, 564. 5 per month.
[8] The recent fixed term contract entered into by the parties commenced on the 1st of January 2019 and ended on the 31st of March 2019. Previously, the applicant was employed on a fixed term contract starting on 1 February 2013 till 18 January 2015. From 2015 till 2018 the applicant worked temporarily without a contract of employment. The duration of the last contract was three months.
SURVEY OF ARGUMENTS AND EVIDENCE
Applicant’s case
[9] Mr Manasa Manemu (Zimbabwean National) testified under oath that his contract of employment was performance based. He performed well and met all the performance criteria set by the respondent. He was on a work visa permit and he does not possess a South African identity document. On the 10 January 2019, the respondent convened a meeting where all temporary employed lecturers were in attendance. The applicant also attended this meeting. In the meeting the respondent explained that the fixed term contracts will be advertised for permanent positions and all the lecturers were encouraged to apply for these permanent positions. The applicant did not apply. The applicant was given notice of the termination on time. He signed the three months fixed term contract on the premise that it would be renewed and aligned to his work permit. This did not happen.
[10] He was told by Mr Solomon Matjiane- Deputy Principal-Corporate Services to apply for permanent residence so that he can enjoy more benefits. According to the applicant, this created an expectation that his temporary fixed term contract would be renewed. The applicant said he was told by the respondent not to apply for the permanent position. The applicant said it was unfair to advertise his temporary position.
[11] Under cross-examination the applicant confirmed that he attended a meeting on the 10 January 2019, however, he was not sure about the purpose of the meeting. The applicant conceded that the meeting was attended by South African and Foreign lecturers employed by the respondent. Both South African and Foreign lecturers were also informed that their positions will be advertised. He said he was told by Mr Gilbert Mafojane, Human Resources Manager, not to apply for the permanent position. The applicant further confirmed that he was notified in writing a month in advance that his contract will expire on 30 March 2019.
Respondent’s case
[12] Mr Solly Matjiane testified under oath that he is employed by the respondent as a Deputy Principal-Corporate Services. He knew the applicant as an English Lecturer at Orbit College. He confirmed encouraging the applicant to apply for permanent residence so that he can enjoy more benefits.
[13] The applicant is a Zimbabwean and the legislation, that is, Policy on Utilisation of Foreign Nationals does not allow him to be appointed permanently. However, if he has permanent residence he can be appointed permanently provided that vacancies exist and are advertised. Due to operational requirement of the respondent, a decision was taken that all temporary positions should be advertised and people should be appointed permanently. The respondent denied having promised the applicant that he would renew his contract of employment. He did not undertake to renew the applicant’s contract of employment. The environment is highly regulated and there are processes and procedures to be followed before appointments are confirmed. If there was an offer to the applicant, that would have been reduced in writing. It is a lie that he promised to renew the applicant’s contract of employment.
[14] The respondent said it was not aware of any special arrangement made between the applicant and the Human Resources Manager.
[15] Under cross examination the respondent said the renewal of contracts was based on the needs of the college. All fixed term employees were affected and their positions were made permanent. He said he did not promise to renew the applicant’s contract of employment. He said he would seek advice from the Department of Higher Education and Training regarding the status of temporary lecturers. The decision was that all temporary positions should be made permanent and the advert ensued. All affected employees were duly notified of this decision.
[16] Mr Gilbert Mafojane testified under oath that he is employed by the respondent as a Human Resources Manager. He was appointed on 1 June 2018. He knows the applicant as an English Lecturer at Orbit College. He said the applicant was given a three months fixed term contract of employment and he was never told that his contract would be renewed. On the 10 January 2019, he invited the applicant and other lecturers to a meeting. The purpose of the meeting was to inform the lecturers who were employed on a temporary basis that their contracts of employment would not be renewed and the temporary positions they occupied have been made permanent. As a result, the positions would be advertised and those interested were encouraged to apply. The applicant elected not to apply for the permanent position. In the meeting the attendees were told the reason why the respondent decided to do away with these temporary positions. It was because of the respondent’s operational requirements and the need to have these positions filled permanently. All lecturers were given written notices a month in advance reminding them that their contracts of employment would expire on 30 March 2019 and would not be renewed. The respondent stated that at no stage did he promise the applicant that his temporary fixed term contract of employment would be renewed. He said it was a blatant lie that he promised to renew his contract of employment.
[17] He said under no circumstances that certain positions were reserved for certain individuals. Mr Solomon Matjiane has no power to appoint. Recruitment and Selection processes are above board.
[18] Under cross examination the respondent reiterated that the applicant was informed well in advance about the meeting of the 10 January 2019 even though he arrived late. The applicant was brought on board and informed of the purpose of the meeting. The respondent was not in a position to treat the applicant in any special way. The application for permanent residence or work-permit does not create an expectation for renewal of a fixed term contract.
ANALYSIS OF ARGUMENT AND EVIDENCE
[19] 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.
[20] 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.
[21] It is common cause that the parties entered into a written temporary fixed term contract of employment. The duration of the contract was three months. Despite the written contract, the Applicant was informed verbally and in writing that his fixed term contract of employment will not be renewed. I am not persuaded by the applicant’s argument that Mr Solomon Matjiane’s encouraging words, that is, “apply for permanent residence so that you can enjoy more benefits” created an expectation for the renewal of his fixed term contract. The reason I am not persuaded is because Mr Solomon Matjiane does not have powers to appoint lectures nor was he mandated to do so. The power to appoint lecturers resides with the Head of Department of Higher Education and Training. Moreover, the message from Mr Matjiane was explicitly clear in that it said apply for permanent residence so that you can enjoy more benefits. The message did not say after applying for permanent residence he will renew the applicant’s temporary contract of employment. The message did not talk about the renewal of a contract. The applicant new well in advance that his contract of employment would not be renewed. The applicant was given notice of termination well on time. This is substantiated by the meeting he attended on the 10 January 2019. In this meeting, the respondent made it clear to all the attendees that their temporary contracts of employment would not be renewed and their positions would be permanent. This was due to the respondent’s operational requirements. All the temporary lecturers, including the applicant were encouraged to apply for these permanent positions. The applicant elected not to apply for employment. The temporary position did not belong to the applicant. He was simply employed to occupy the position temporarily.
[22] It is my view that the applicant cannot later raise his hands and cry foul for not being employed whilst he was given an opportunity to contest a position of employment. The applicant is a victim of his own actions and the blame cannot be apportioned to the respondent. It is my finding that the statement by Mr Solomon Matjiane did not create any reasonable expectation of employment.
[23] In the absence of evidence before me that show that the applicant was promised a renewal of his contract of employment, I have no reason not to believe Mr Solly Matjiane’s argument that he did not promise to renew the applicant’s temporary contract of employment.
[24] I am convinced that the applicant was informed timeously of the reason why the position he occupied was made permanent and he and other job applicants were given an opportunity to apply and contest the position. The applicant was not the only employee affected by this change. I am convinced by the respondent’s testimony that the reason why it decided to do away with these temporary positions was because of its operational requirements and the need to have these positions filled permanently. I believe the decision to phase out these temporary contracts of employment was communicated to the applicant and his colleagues.
[25] It is my finding that the applicant knew as early as the 1 of January 2019 that his fixed term contract will not be renewed and will expire on 30 March 2019. This decision was repeated and emphasised by the respondent in the meeting held on the 10 January 2019 where the applicant was in attendance. The applicant failed to disprove the respondent’s argument that he lied and he was not promised that his contract of employment would be renewed. It is further my finding that the applicant dismally failed to adduce evidence that would plainly show that the respondent created an expectation that his temporary contract of employment would be renewed.
[26] In my view, it was improbable of the managers to create an expectation for the renewal of a single fixed term contract whilst the operational requirements of the respondent called for permanent appointments in all the lecturers temporary positions.
[27] The applicant failed to adduce evidence that proved that he had a reasonable expectation that his contract would be renewed.
[28] 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.
[29] It is my finding that the applicant has failed, on a balance of probabilities, to prove that the respondent created an expectation that his temporary fixed term contract of employment would be renewed.
AWARD
[30] It is my finding that the respondent did not create an expectation of a renewal of a fixed term contract of employment.
[31] The applicant is not entitled to any relief.
[32] The applicant’s referral of a dispute is dismissed.
ELRC PART-TIME PANELLIST: PAUL PHUNDU