Case Number: PSES 107-18/19 WC
Province: Western Cape
Applicant: NAPTOSA obo JV RUKA
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 8 October 2019
Case No PSES 107-18/19 WC
In the matter between
NAPTOSA obo JV RUKA Applicant
DEPARTMENT OF EDUCATION WESTERN CAPE Respondent
ARBITRATOR : A.Singh-Bhoopchand
HEARD : 21 January 2019; 28 March 2019; 19 September 2019
DELIVERED : 8 October 2019
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing was held over a period of three days, the 21 January 2019, 28 March 2019 and was concluded on 19 September 2019. The applicant was represented by Mr Xolile Zigebe, an official of the trade union NAPTOSA. The Respondent was represented by Mr B.Mketso Baxolele, assisted by Ms Deborah Matshaya, both labour relations officials with the Respondent’s labour relations directorate.
2. Proceedings were digitally recorded.
3. One bundle of documents was handed in as evidence.
4. The parties submitted closing arguments in writing, the last of which was received on 3 September 2019.
THE ISSUE IN DISPUTE
5. The Applicant referred an unfair dismissal dispute in terms of section 186(1)(b)(i), (ii) of the LRA as amended. I am required to determine whether the applicant was dismissed and if so whether the dismissal was fair.
6. The Applicant was appointed on successive six-month contracts at the Parliament Street Primary School from January 2016 until December 2017. It is common cause that the necessary forms for the renewal of her contract for 2018 were completed and submitted to the Respondent. However, her contract was not renewed. In addition, the Applicant also completed forms for the conversion of her fixed term contract to one of permanency.
7. Applicant claims that she was not informed that her contract would not be renewed and this together with the fact that she was asked to complete the necessary forms for renewal of her contract, created a reasonable expectation that her contract would be renewed. She claims that her expectation was further bolstered by the fact that she was also asked to complete forms for the conversion of her fixed term contract to one of permanency.
8. It is the Respondent’s case that the completion of the necessary forms does not in itself create a reasonable expectation of renewal. Applicant’s contract was not renewed because of poor work performance. Good work performance is also a criterion for conversion of a fixed term contract to permanency and the Applicant fell short in this regard.
SUMMARY OF EVIDENCE
9. The Applicant testified that towards the end of 2017 , she as well as other educators on the staff, completed nomination forms for conversion of their fixed-term contracts to permanent contracts. The form was signed by the Chairperson of the SGB as well as the school principal and submitted to the Department . She was not informed that her application for permanency had been declined . She conceded that the forms stipulate that permanent appointment is not automatic upon completion of the forms and that specific criteria needed to be met. In her view, she met all the criteria.
10. At no stage during her employment at the school was she told that her performance was not satisfactory, and no interventions were put in place to improve her performance. Her response to minutes of an SMT meeting signed by her which sets out a remedial plan to monitor her and assist her, was that she had simply signed the document because she was asked to do so but that she had not read the document. The plan as contained in those minutes was never implemented. When the subject adviser, Ms Terblanche visited her class, she did not speak to her. She simply approached learners directly and collected a few books from them . She did not receive any feedback from the subject adviser on her work performance and neither did the adviser assist her in any way. Neither did she receive any negative feedback nor any guidance or assistance from the Head Of Department at the school. She also denied any knowledge of any of the written reports contained in the bundle of documents. She denied that when Ms Terblanche visited that learners were rubbing her back and playing with her hair. She also claimed to have no knowledge of a letter from the Director, Mr Millar , (page 31 of the bundle) addressed to the school principal stating that the conversion of her contract to one of permanency would not be approved.
11. She reported back to school on 15 January 2018 at the start of the new year. The principal called her into his office. The chairperson of the SGB was also present .The principal told her that he knew that she had a problem with Mr Spencer (the circuit manager) in that he wanted her out of the school. He went on to say that as there was now a new circuit manager, and that he would address him about what was happening at the school. He told her to go home and that he would call her in 10 days. She then went home and waited. However, the principal did not call. She then wrote a letter to the chief director and the MEC about her concerns.
12. Ms N.Mpiti, the chairperson of the SGB testified that the school principal had told her that there had been complaints about Ms Ruka’s work performance . He said that the department wants to give her a chance to improve. There was no discussion that Ms Ruka would not be returning to work in 2018. She was present at school on the first day of the new year in 2018. The principal accused her of telling Ms Ruka to report for work in 2018. She told him that she had not done so. He then called her to his office and he also called Ms Ruka. He reminded Ms Ruka that he had told her in December 2017 that the Director had said that she should not return to work in 2018. He went on to say that he thought that he and Ms Ruka were on the same page in this regard. Ms Ruka denied being told that she should not come back in 2018. The principal then told Ms Ruka that she should go home and that she should remain at home for ten days and that he would in the meantime speak to the new circuit manager about her post.
13. The respondent presented the evidence of four witnesses namely, Mr Spencer, the curriculum advisor, Mr B.Mhlom , the former school principal of Parliament Street Primary School, Mr Harry Wyngaard , the Deputy Director Recruitment and Selection, and Ms V. Terblanche, the subject advisor , Metro North Education District.
14. Mr Spencer testified that he requested that Ms Ruka’s contract not be renewed because she was not performing her duties according to the required standard This was evident from the Curriculum Advisor’s various reports. He had had discussions with the school principal about Ms Ruka’s non-performance and he asked him to intervene to get her to improve. To this end there was an SMT meeting where a plan was devised to assist Ms Ruka. However, her work performance did not improve. Despite her poor performance , the school nevertheless sent through nomination forms requesting that her contract that expired in July 2017 be extended until December 2017. He expressly indicated on the forms that the renewal of her contract was not recommended. Despite this, the school principal allowed her to continue to work and a contract was submitted to him for approval after she was already allowed to work beyond her last contract. When he did not recommend her appointment, the principal took the contract directly to head office, bypassing him. Thus, her contract was extended until December 2018.
15. With regard to the conversion of Ms Ruka’s fixed-term contract to a permanent contract, he testified that it is the principal’s responsibility to fill in the checklist in the conversion forms. Ms Ruka did not meet the criteria as her performance was not satisfactory. Neither he nor the school principal recommended Ms Ruka’s conversion to permanency. (page 26 of bundle) An email was sent to the school principal by the District Director , Mr D. Miller , stating that he would not be recommending Ms Ruka’s conversion.
16. Mr Mhlom testified that they became aware during the first semester that Ms Ruka was not performing satisfactorily. They had a meeting as the School Management Team (SMT) , during October 2016, where they formulated a special program to assist her to improve her performance. The intervention was carried out and monitored by the HOD . However, there was no improvement in work performance. The subject adviser has visited the school on numerous occasions and she has observed Ms Ruka’s performance. Her reports reflect that Ms Ruka’s performance was not up to standard. When advisers visit a class , they discuss their findings and observations with the particular educator and with the HOD thereafter. They also advise educators about what needs to be done to improve. Ms Ruka was aware of the fact that she was underperforming. During or about September 2017 after he received and an email from the Director informing him that Ms Ruka would not be recommended, he informed Ms Ruka that her contract would not be renewed for 2018. The content of the email was also brought to her attention.
17. When he saw Ms Ruka at school in January 2018, he reminded her that she was not supposed to be at school as her contract was not going to be renewed. He never promised her a position at school and he never created an expectation that her contract would be renewed.
18. Towards the end of 2017 he received letters form the Department regarding educators who qualified for conversion. Ms Ruka qualified to be considered for conversion based on her years of service and the fact that she had never been appponted on a permanent basis. However , in order to be converted , the educator must also meet certain criteria. He did not recommend her for conversion as she was not performing satisfactorily which is one of the criteria for conversion. Performance is part of the criteria in order for a contract to be renewed and also for an educator to be considered for conversion. The circuit manager did not approve the conversion.
19. Mr Wyngaard testified about the process of conversion. A newly qualified educator and an educator, like Ms Ruka that has never been appointed on a permanent basis, does qualify to apply for conversion of their contract to a permanent contract. However, conversion does not follow automatically upon application in that specific criteria need to be met before final approval is granted by the Head of Education . Completion of conversion forms does not create an expectation that a person will be employed , neither does it create an expectation that a contract will be renewed.
20. Ms Terblanche testified that she is responsible for social sciences in grade 4 to grade 7 and as part of her duties she visits schools to observe , report on and guide educators. She had observed Ms Ruka , moderated her class books . She compiled reports which were communicated to her and to the HOD and school principal. Ms Ruka’s performance was poor.
The Applicable legal Provisions
21. In terms of section 186(1)(b)(i) of the LRA a dismissal means :
(b). an employee employed on a fixed term contract of employment reasonably expected the employer-
(i). 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
(ii). To retain the employee in employment on an indefinite basis but otherwise on the same or similar terms and conditions as the fixed term contract, but the employer offered to renew it on less favourable terms or did not offer to retain the employee.
In an unfair dismissal dispute where the dismissal of an employee is in dispute, it is the applicant that bears the onus to prove that he was dismissed. It is only after the employee has succeeded in establishing the existence of a dismissal that an employer would be required to prove the fairness thereof.
22. Ordinarily a fixed term contract lapses by effluxion of time on the agreed date. Section 186(1)(b) creates a unique type of dismissal in that it is only when the employee successfully proves that the respondent has failed to fulfil a reasonable expectation of renewal of the contract or of retaining the employee that the employee is regarded as having been dismissed within the extended meaning of a dismissal contemplated in section 186(1)(b) of the LRA. A subjective belief by the applicant that his/her contract would be renewed does not count as a reasonable expectation of renewal. The applicant must prove objectively that the respondent engendered in him/her a reasonable expectation that his fixed term contract would be renewed on same or similar terms.
23. In Dierks v University of South Africa (1999) 20 ILJ 1227, at 1246, the court held that the following factors will have to be taken into account in considering whether a reasonable expectation existed or not, they include : “…. The evaluation of the surrounding circumstances , the significance or otherwise of the contractual stipulation , agreements, undertakings by the employer , or practice or custom in regard to renewal or re-employment , the availability of the post, the purpose or reason for concluding the fixed term contract , inconsistent conduct , failure to give reasonable notice , and the nature of the employer’s business.”
24. In Minister of Land Affairs v GPSSBC & Others 2011 ZALC Jhb 162 LC at para 9 the court had this to say:
“The test for establishing a reasonable expectation is an objective one. The court will consider whether a reasonable employee in the circumstances prevailing at the time would have expected the employer to renew his or her fixed term contract on same or similar terms.”
The aforementioned test is consistent with the judgment of the Constitutional Court in Walele v City of Cape Town & Others 2008 (6) SA 129 (CC) where it was held that the inquiry for determining the existence of a legitimate expectation is primarily factual, and the focus is on the objective facts giving rise to the expectation and is based on provable facts that tend to show that it was the respondent or its decision makers that stimulated a reasonable expectation on the applicant that his fixed term contract would be renewed on same or similar terms .
Applying the Law to the Facts
25. In essence, the applicant claims that she had no knowledge of any shortcomings in her work performance and the fact that forms were completed and submitted for renewal of her contract and for the conversion thereof to a permanent contract , created a reasonable expectation that her contract would be renewed or that she would be retained on an indefinite basis. Whilst it is plausible that the completion and submission of the forms would have created a subjective expectation of renewal, I find it unlikely that the applicant had no knowledge of her poor work performance. Her claim that she was ignorant of the content of reports relating to her performance that she signed is equally unlikely. It is also unlikely that not a single person, including the curriculum adviser that observed her performance, the school head of department to whom she reported nor the school principal who was aware of her poor performance , alerted her to her poor performance.
26. The applicant’s own witness, the chairperson of the SGB, corroborated the evidence of the school principal that he had alerted her to the fact that her contract would not be renewed in 2018. She also confirmed that the school principal had expressed his concerns to her about the applicant’s poor performance. His surprise at seeing the applicant at school on the first day of the 2018 school year, which was again corroborated by the chairperson of the SGB , is consistent with his version that he told her that her contract would not be renewed. He went so far as to mention in the presence of the chairperson that he thought that “they were on the same page”, meaning that he believed that the applicant understood that she should not report for work in 2018.
27. I got the impression that the principal was somewhat ambivalent when it came to the applicant’s continued employment. The circuit manager informed the principal that the applicant’s contract was not recommended for renewal for even the last six months of 2017, let alone for the 2018 year. Her contract came to be renewed for the period July 2017 to December 2017, only because the principal bypassed the district office and sent the forms directly to the head office and allowed the applicant to continue working at the school. I can only speculate that he did this to assist her to keep her job, this despite knowing full well that she was underperforming. It is unlikely that he would not have made the applicant aware that her contract only came to be renewed for that last period only through his (misplaced) benevolence .
28. However, when it came to the renewal of the contract for 2018 or for the conversion of the Applicant’s contract to permanency, the evidence points clearly to him having communicated to the applicant that she should not report to work for 2018. In fact, he did not recommend her for a permanent appointment. A letter from the Department was sent to the principal stating expressly that her contract would not be renewed. He had to have made her aware of this given that this was the second time that department officials were informing him that her contract would not be renewed or that her employment would be continued. The applicant’s claim of ignorance of the content of the letter and of her poor work performance, is thus rejected.
29. The unions argument that the respondent failed to follow proper procedure by not disciplining the applicant for poor work performance instead of choosing not to renew her contract is misplaced. Work performance according to the required standard was a criteria that had to be met before the contract could be renewed. This is the employer’s prerogative. The key consideration for this type of dismissal is whether or not there was a reasonable expectation of renewal. The fact that the applicant was made aware of her poor work performance can hardly translate to the creation of a reasonable expectation. No overt promise was made to her that her contract would be renewed or that she would be retained. On the contrary she was told not to report for work in 2018.
30. The applicant’s subjective hope that her contract would be renewed does meet the objective test for a reasonable expectation . Her expectations of renewal of her contract were based on wrong assumptions. Consequently, they cannot be regarded as reasonable expectations , within the contemplation of section 186(1)(b)(i) of the LRA.
In the premises, I make the following award:
1. The Applicant has failed to prove that she has been dismissed as contemplated in section 186(1)(b)(1) of the LRA.
2. The ELRC does not have jurisdiction to entertain her claim against the
3. Applicant’s claim is dismissed.