Case Number: PSES232-19/20 WC
Province: Western Cape
Applicant: NKITA Z (FIRST APPLICANT); TANDOR MAZILAZILA (SECOND APPLICANT)
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 20 November 2019
Arbitrator: ADVOCATE J P HANEKOM
PANELIST: ADVOCATE J P HANEKOM
CASE NO: PSES232-19/20 WC
AWARD DATE: 20 NOVEMBER 2019
In the matter between:
NKITA Z (FIRST APPLICANT);
TANDOR MAZILAZILA (SECOND APPLICANT) Applicants
DEPARTMENT OF EDUCATION – WESTERN CAPE Respondent
DETAILS OF THE HEARING AND REPRESENTATION:
1. This matter was set down for arbitration on 29 October 2019 concerning an alleged unfair dismissal dispute relating to failure to renew a fixed-term contract on same or similar terms in terms of Section 186 (1)(b) of the Labour Relations Act 66 of 1995 as amended (LRA). The Applicants presented themselves. Mr. F.H. Scholtz of Labour Relations represented the Respondent.
2. I digitally recorded the evidence concluded in one day. Both parties thereafter agreed and requested to submit written argument by 5 November 2019.
ISSUE TO BE DECIDED:
3. I have to decide whether the Respondent created a reasonable expectation for the Applicants’ fixed-term contracts to be renewed on same or similar terms or on an indefinite basis.
4. The Respondent employed both the Applicants, as Level-1 Educators at Middelpos Primary School since 2018, on fixed-term contract that expired on 31 December 2018. The Respondent verbally extended the Applicants’ fixed-terms contracts for a further period from 1 January 2019 to 31 March 2019.
5. The Respondent did not renew the Applicants’ fixed-term contracts thereafter. Accordingly, the Applicants referred a dispute to the Council on 11 June 2019 and had to apply for condonation of a late referral of the dispute. The Council granted the condonation on 12 August 2019.
6. The Respondent denied that it created a reasonable expectation to renew the Applicants’ fixed-term contracts on same or similar terms or on an indefinite basis.
EVIDENCE AND ARGUMENT BY THE APPLICANTS:
7. The Applicants testified that the Respondent verbally extended their fixed- term contracts from 1 January 2019 to 31 March 2019. Prior to that, they were on a fixed-term contract since 2018 that ended 31 December 2019.
8. The Applicants further stated that at a staff meeting in January 2019, the School Principal, Mr. M.H. Sixholo (hereinafter referred to as “Sixholo”), informed them that he would renew their contracts after March 2019, depending on their performance. However, in February 2019 at a staff meeting, the Principal changed his mind and said that he was no longer going to look at their performance, but the needs of the school. In that regard, Sixholo said that he would their CV’s during the school holidays. If he were going to renew their contracts, he would call them during the school holiday.
9. The Second Applicant stated that Sixholo visited him during the March school holiday when they socialised over a bottle of whisky. At the time, Sixholo posed the question to the Second Applicant as to whether or not he should the remove the Second Applicant from the system. The Second Applicant responded; “No”. Sixholo then informed him that the Department no longer wanted to take on former educators who resigned or retired, but rather wanted to appoint new teachers.
10. The Applicants submitted that the Respondent created a reasonable expectation to renew their contracts on same or similar terms.
EVIDENCE BY THE RESPONDENT:
11. The Respondent led the evidence of Sixholo and further submitted documentary evidence in support of its case.
12. Sixholo testified that Respondent appointed him as a Principal at Middelpos Primary School since 1 January 2019 after he applied for the post in 2018. Sixholo stated that during December 2018, the Circuit Manager Mr. A.D. Daniels invited him to the school and introduced him (Sixholo) to the staff. The two of them decided for the sake of stability, to continue with the staff compliment for the first term of 2019, although the educators did not fit in with the needs of the school. At the time in the staff room, they informed the teachers that the contract-teachers would continue to work on fixed-term contracts for the period January 2019 to March 2019 for the sake of stability. Sixholo further stated that at the beginning of the new year in January 2019, he informed the contract-teachers at a staff meeting that he would look at the needs of the school and their CV’s, to determine who would qualify for an extension of a fixed-term contracts.
13. Sixholo denied that he would look at the performance of teachers. To Sixholo, that did not make sense as some other new candidates, who did not work at the school would then be eliminated.
14. Sixholo stated during the March school holiday, he compiled criteria to score all candidates in respect of fixed-terms contracts. The Applicants did not qualify, as they did not fit in with the needs of the school. Both the Applicants made mention in their CV’s of the subjects that they taught without supporting documentation. Sixholo therefore only called the successful candidates during the school holiday, who received fixed-term contracts. Sixholo further denied that he ever created the expectation that he would renew the Applicants’ fixed-term contracts.
15. The Respondent submitted that it never created a reasonable expectation to renew the Applicants’ fixed-term contracts.
ANALYSIS OF THE EVIDENCE AND ARGUMENT:
16. It was common cause that the Applicants were on fixed-term contracts and that their last fixed-term contracts were for the period 1 January 2019 to 31 March 2019. The Applicants claimed that the Respondent created a reasonable expectation to renew their contracts on same or similar terms. The Respondent denied such allegation.
17. The Applicants’ evidence was that Sixholo told them at a staff meeting in January 2019 that he (Sixholo) would look at their performance in order to decide whether he (Sixholo) was going to extend their fixed-terms contracts at the end of March 2019. However, in February 2019 Sixholo changed his mind and said that he was going to look at the needs of the school. I find it unlikely to be the case. In this regard, Sixholo gave a plausible and reasonable explanation as to why he did not look at the performance of the Applicants. According to Sixholo, some other candidates also submitted their CV’s at the school. Sixholo did not know the performance of those candidates. He therefore could not take performance of teachers into account when he decided to issue or renew fixed-term contracts. According to Sixholo, he created a list of criteria according to the needs of the school in respect of the teaching subjects and scored the candidates accordingly.
18. Further, Sixholo gave a satisfactory explanation as to why he scored both Applicants low and why he did not consider them for renewal of their fixed-term contracts. Both the Applicants did not provide supporting documentation as to the subjects, they taught. In that regard, Sixholo referred to the First Applicant who taught Maths at various schools, but did not even have Maths in standard 10, according to his (First Applicant’s) Senior Certificate. The Teachers Diploma that the First Applicant obtained also did not ever make reference of Maths as a major subject as reflected in the First Applicant’s CV. The same applied to the Second Applicant who claimed that he taught English at Grade 4, but failed to provide supporting documentation in that regard. In that regard, Sixholo further stated that neither of the Applicants provided statements of results of the subjects that they passed at University.
19. The Second Applicant during cross-examination took his time to answer the question put to him that Sixholo would deny that he socially engaged with the Second Applicant over a few drinks during the March school holiday of 2019. Sixholo emphatically denied such an occasion.
20. On a balance of probabilities, I find that the Applicants did not discharge onus of proving a reasonable expectation in respect of their fixed-term contracts. Sixholo was a good witness and I have no reason to reject his evidence as false. I therefore cannot find the Applicants version more probable than that of the Respondent. The Applicants on their own version conceded that Sixholo told them that he would look at CV’s and the needs of the school. To my mind, there was therefore no promise made or surety that Sixholo would extend the Applicants’ fixed- term contracts after 31 March 2019.
21. In the premises, I make the following award:
22. I find the Applicants did not discharge the onus of proving a reasonable expectation that the Respondent would renew their fixed-term contracts on same or similar terms. I therefore dismiss the application.
ADV J P HANEKOM