PSES 796-18/19 WC
PSES 796-18/19 WC
Award Date:
12 December 2019
Case Number: PSES 796-18/19 WC
Province: Western Cape
Applicant: NAPTOSA obo R Myburgh
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Metro East District Office of the Western Cape Education Department (WCED), Kuilsriver
Award Date: 12 December 2019
Arbitrator: Retief Olivier
Arbitrator: Retief Olivier
Case number: 796-18/19 WC
Date of Award: 12 December 2019
NAPTOSA obo R Myburgh Applicant
and
Western Cape Education Department Respondent
Applicant representative: Xolile Zigebe - NAPTOSA
Telephone: 021 686 8521
Telefax: 021 689 2998
Respondent: Western Cape Education Department
Telephone: 021 - 467 2846
Telefax: 021 - 425 8612
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing took place at the Metro East District Office of the Western Cape Education Department (WCED), Kuilsriver on 12 April 2019, 22 July 2019, 6 September 2019, 5 November 2019 and 8 December 2019. Mr Xolile Zigebe, NAPTOSA official represented the applicant, Mr Ricardo Myburgh. Mr Zola Dayimani, represented the employer, WCED. It was agreed that written closing arguments would be presented not later than 25 November 2019.
ISSUE TO BE DECIDED
2. The applicant Mr Myburgh referred the matter to the ELRC as a dismissal dispute. The employer denied that the applicant was dismissed, stating that the employee’s fixed term contract had expired and no dismissal had taken place. The applicant stated that he was on a fixed term contract, that he had been nominated for extension and/or conversion of his fixed term contract to a permanent contract by the SGB, and that he had a reasonable expectation of renewal of his fixed term contract.
3. I must therefore decide if the applicant was dismissed, and if he was dismissed, whether the employer had dismissed him fairly.
BACKGROUND TO THE ISSUE
4. The applicant was appointed on a year fixed term contract at a new school in Macassar, False Bay Primary. Most of the teachers appointed were appointed on this basis. The applicant like other educators had shown interest in becoming permanent. The school had to extend its classes in 2019, and the educators could either indicate whether they wished to have their contracts renewed or having their contracts converted. In addition the applicant also completed forms as required and requested by the SGB for conversion of his fixed term contract to one of permanency. His nomination was recommended by the SGB. The applicant’s contract was however not renewed or converted. He then referred a dismissal dispute.
5. The respondent submitted that no dismissal had occurred and that his contract had expired as it was a fixed term contract for one year. He was notified that the contract would not be extended on 30 November 2018. The circuit manager, Mr De Wet noted that his nomination for the renewal or conversion of his contract was not recommended, as Mr De Wet submitted he did not meet the required performance standards and performed below average.
6. During the year school based assessments were conducted by the circuit advisor and the respondent submitted that on the basis of particularly the final assessment conducted in October 2018 the applicant was not meeting the required performance standard. However the respondent then elected to charge the applicant with misconduct related to poor performance. This was decided by the circuit manager, who then instructed the acting principal Ms. Fairbairn to institute progressive disciplinary proceedings, and a disciplinary enquiry was held and she issued a final written warning. It was noted that she issued the final written warning without a specific outcome, as she did not did make any specific findings relating to the charges laid against the applicant in that instance.
7. The applicant indicated that he disputed some of the findings of the curriculum advisor’s assessments, and noted that was he not found to be incompetent, and that in the only relevant performance management instrument, the IQMS, his performance was evaluated as above average. The applicant further submitted that he had an expectation of renewal of his contract and that the alleged poor performance had been dealt with by the respondent as a misconduct issue, and a warning was issued, and can not be used as pretext not to renew his contract.
SURVEY OF EVIDENCE AND ARGUMENT
8. The parties led detailed and exhaustive evidence and submitted written closing arguments. Bundles of documents were also submitted as evidence. It should be noted that much of the evidence however presented over 5 days of testimony in the arbitration hearing related to the school based assessments and disciplinary enquiry, and this is not the key issue in dispute in this arbitration hearing. I am not repeating all of this evidence, am only referring to those aspects relevant to determine the dispute regarding an expectation of renewal, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.
Employee’s version:
9. Mr Ricardo Myburgh testified in summary that he was recruited and resigned from his previous school and was appointed on contract to teach a multi-grade 2 and 3 class in False Bay Primary in 2018. The school only started in 2018. He stated he was a qualified teacher and could teach all three grades 1 to 3, although he has been teaching a special needs pre-vocational class and grade 4 mainstream. He explained the situation in the school and the class, where many learners could not speak or write in English. He explained that for the first semester he had a multi grade English class grade 2 and 3, with Ms. Fairbairn having the multi-grade Afrikaans grade 2 and 3 class. She become the acting principle and in the second semester the Afrikaans learners were put in his grade 3 class and similarly his grade 2 learners were put together with the Afrikaans learners in a grade 2 class. He then had a combined Afrikaans English grade 3 classes. He explained the assessment process followed by the curriculum adviser and he expressed concerns about the lack of support and the lack of teaching material and the difficulties he had with the learners who did not know English. He also paid for a teacher assistant.
10. Regarding the assessment processes he also stated that the curriculum advisor confused the classes as Ms. Fairbairn’s had not marked all her learners’ books, and he was then assessed on her work because they were now in his class in the second semester. He also submitted that his concerns and complaints were not attended to. Following the last assessment he was charged with misconduct related to poor performance, and was called to a progressive disciplinary meeting. The acting principal Ms. Fairbairn chaired this hearing, and she issued a final written warning valid for six months. She did not issue an outcome or any findings related to the charges of the disciplinary hearing. Although it was stated that the disciplinary charges followed from the assessment by the curriculum advisor Ms. Sulfah Cloete, he stated she never neither discussed this with him, nor indicated that he would be facing disciplinary charges. He was never found to be incompetent. He was issued with a final written warning on 16 November 2018. He stated and alleged that the final written warning was in fact issued to him by the principle on the instruction of the circuit manager Mr. De Wet, who had a vendetta against him.
11. Regarding the non-renewal of his contract, he stated that when he started with the school in 2018 it was already made clear that the classes will be extended in the next year with grades 4 to 6 to be added and that the posts would continue. He stated that on 15 October 2018 he was informed that the SGB approved the renewal of their contracts, including his own and that the principal, together with chair of the SGB, would be forwarding the letters of recommendation for the conversion process terms of section 6(b) of the Collective Agreement 4 of 2018. They submitted the signed conversion letters to the circuit manager Mr De Wet.
12. He was later informed by the principal that, in a letter dated 15 November 2018, from the Metro East District office, that neither the renewal of his contract, nor conversion of his contract was recommended by the District Office and therefore not approved. The letter was signed by the circuit manager, Mr De Wet, but was not signed by the District Director. Of the five educators recommended and nominated by the SGB for conversion, only his was not approved. The letter indicating the non-renewal did not provide any reasons for the decision. He submitted a grievance and at the grievance hearing on 14 December 2018 he was informed that the reason for the non-renewal and non-conversion was due to his poor performance as per the subject (curriculum) advisor’s report. He submitted that there was no incapacity procedure related to poor performance and that no further disciplinary action was taken against him following the issuing of the final written warning dated 15 November 2018.
13. Ms. Muneelwe Dalvey, a teacher, testified about an affidavit that she submitted that Ms. Fairbairn had told her on 16 November 2018 that the circuit manager Mr De Wet had instructed her to issue a final written warning to the applicant and that Ms. Titus was also present when Ms. Fairbairn told her this. The applicant also challenged Ms. Fairbairn about this when he heard about it.
14. Mr Marco Williams, chairperson of the SGB in 2018 testified about the decision of the District Office about the applicant’s non-renewal and non-conversion of his contract and stated that he wrote a letter to the Department requesting information and reasons for the decision. He also called a SGB meeting for 3 December 2018 to discuss the matter, and then drafted a letter on behalf of the SGB to the Department. He submitted that it did not appear fair that only the applicant’s contract was not renewed, when all the other educators had been nominated and recommended for either renewal of their contracts or conversion of their contracts. He did not receive any feedback from the Department however. He had expected that they would at least be provided with reasons. The SGB had recommended at their meeting of 15 October 2018 that the applicant’s contract is extended and it also recommended that his contact be converted and the necessary documentation had been submitted accordingly. The meeting also decided that the documents and contracts be signed on 18 October 2018 and that all teachers involved will be informed accordingly. It was noted that all these decisions were accepted by the whole SGB.
15. Regarding the disciplinary hearing of the applicant and the final written warning that was issued on 15 November 2018 he testified that this letter had not been copied to the SGB and the principal did not inform them of the issuing of the final written warning. This is also not conveyed to them when the district office issued the letter on 30 November 2018, indicating that the district and the circuit manager does not approve the request for conversion to a permanent appointment or the extension of the applicant’s contract. He reiterated when questioned that the disciplinary process was not reported to him by the principal and never reflected in any minutes of the SGB
16. Mr Seipati Momoi testified that he was a parent who had a child in the applicant’s class and the applicant informed him of the problems his child had with not being able to speak English and they worked together to help the child. He indicated that he was very happy with the support the applicant provided and that his child improved and he was very happy with the applicant’s abilities and teaching, as he went the extra mile for the learners.
17. In closing it was submitted that the applicant was appointed on a year contract at a new school in Macassar. The applicant like other educators had wanted to become permanent. The school had to extend its classes in 2019. (Extension of curriculum to grade 4-6.) Application forms for renewal of the applicant’ contract for 2019 was completed and submitted to the respondent. The applicant’s contract was not renewed. In addition the applicant also completed forms for conversion of his fixed term contract to one of permanency. The SGB considered the renewal of contracts and the conversion of those who wanted to be made permanent and supported the applicant’s renewal of contract and conversion.
18. Regarding the disciplinary action the applicant was issued with notice of progressive discipline based on poor work performance. The acting principal issued the final outcome without findings being made. The circuit manager instructed the acting principal to conduct the process based on the subject advisors report and instructed her to issue the final written warring. Attention is drawn to the last sentence in this instruction “failing to adhere to this formal instruction will possibly result in disciplinary action being instituted against you.” The circuit manager threatened the acting principal. The acting principal further during cross-examination testified that she would not have charged the applicant for the above matter. The final written warning was issued as valid for 6 months; meaning that the outcome would be on the applicant for a period of 6 months. It is unfair to the applicant that he should be punished twice for the same offence. The matter should have been regarded as moot after the disciplinary meeting.
19. The circuit manager conceded that he had not considered the Labour Relations Act Item 8 schedule 8 and he further testified that it was his personal decision not to renew the contract and the repudiation of the conversion. The reference to the discretion of the Head of Department was not exercised by a competent person. This is contrary to the Collective Agreement on conversion of the employment contract. The criteria to be followed when considering conversion is based on section 6.3 (a-d) of Collective Agreement 4 of 2018.
20. Regarding the allegation that the applicant performed poorly, according to the circuit advisor reports, it is important to note that Collective Agreement number 8 of 2003 on the Integrated Quality Management System (IQMS) is the recognized tool used for assessment and in this the applicant did exceptionally well and scored above average. It was further submitted the circuit manager misled the hearing that the report was discussed with the circuit advisor. He changed his version and conceded in the hearing that the reports were not discussed with her and that he gave the instruction to discipline based on how he interpreted the reports.
21. Regarding the legal principles 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 is only when the employee successfully proves that the respondent has failed to fulfil a reasonable expectation of renewal of the contract or retaining the employee that the applicant 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 the contract would be renewed does not count unless the applicant proved objectively that his fixed term contract would be renewed on the same or similar terms. The evidence led by the applicant’s witnesses and the concessions made by the respondent witnesses confirm that an expectation was created. The minutes of the SGB from October and December meetings all point to one direction that the applicant’s renewal of his contract was agreed upon. The circuit manager had grudges against the applicant and acted ultra vires. The SGB requested reasons why the applicant’s contract was not renewed. Until this date the request of the SGB has not been answered by the stake holders involved.
22. The applicant referred to matter in the Constitutional Court in Walele v City of Cape Town and Others 2008(6) SA 129 (CC) where the court held;
“The court 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 contract would be renewed on the same or similar terms.”
23. Based on this ruling it was submitted that the applicant had proven that he had an expection of renewal of his fixed tems contract and that the repondent has dismissed him. it is acknowledged that the employment relationship between the applicant and the respondent was broken down and the applicant’s integrity and professionalism was damaged beyond control by the circuit manager, by bad referencing. The applicant suffered emotionally and financialy as a result of the conduct of the respondent and requested to be compensated.
Respondent’s version:
24. Ms Zulfah Cloete, subject advisor, testified about the school based assessments she did, including at the applicant’s school, indicating it fell within her area and explained that schools are informed before hand of her visits and that teachers had to prepare schedules and books for her visit. She did three assessments at the school and before her first visit the applicant had contacted her seeking information. After the first assessment she found the applicant’s performance satisfactory and made some recommendations for improvement. She acknowledged that she was not aware that the acting principal Ms. Fairbairn had taught some of the learners in the class in the first semester, and that she was therefor assessing some of the work of Ms Fairbairn, which reflected as a criticism of the applicant in that she noted there were some documents missing. In the second assessment she found that there was not sufficient space in the classroom and it impacted on learning and there was insufficient number of activities in the learner’s workbooks. The applicant knew the content and they spoke about what he could do more. She found that the learner’s ability was quite elementary for a grade 3 class. Not all the books were marked and but she also found that the department did not supply all the necessary textbooks.
25. She stated that in her last assessment visit in October 2018 she was disappointed as the applicant had not prepared properly and there was lot of material and information missing. She discussed the findings with the applicant and indicated that she had not seen any improvement from previous visit and that this performance was below standard. She stated that at some point later the applicant contacted her about the reports and informed her that because of the reports they were going to dismiss him, and she indicated she was not aware of this and did not know anything about it, as she did not know what happens afterwards with the reports. She was not aware of or involved in the disciplinary hearing.
26. When questioned she indicated that the applicants performance in the first assessment was found to be satisfactory. She confirmed that she never found him be incompetent, but that she found his performance as below average after the third visit. She stated that she was unaware of the disciplinary hearing, but confirmed that the circuit manager had discussed her reports.
27. Ms Fairbairn, acting principal, stated that the applicant was not dismissed, but his contract expired on 31 December 2018, and that he was informed of this on 30 November 2018. The decision not to renew his contract or to convert his contract was not taken by the SGB, but the district office. They were not given reasons, but the circuit manager informed the applicant of the reasons at his grievance hearing. She stated that the SGB does not appoint, but can only recommend and make a nomination for conversion or renewal. In this instance that SGB followed the proper procedures when they made nominations and the applicant was also nominated for renewal of contract and/or conversion of his contract.
28. Regarding the disciplinary process she stated that she issued the final written warning based on his poor performance as an educator at the school. She stated that she came to the decision to issue the final written warning in consultation with the district office, as she was newly appointed, and there was nothing wrong to seek advice. She confirmed she received instruction from the circuit manager to institute the disciplinary proceedings. She denied the allegation made by Ms Dalvey that the circuit manager instructed her to issue the final written warning. Regarding the curriculum advisors reports she stated the applicant had not complied with all the strategies and processes, and denied that they did not provide support to him.
29. During questioning she acknowledges that SGB nominated to the applicant that the SGB meeting on 15 October 2019, and that she became aware of the applicants inadequacy from the curriculum advisors final report submitted after that date. She had no reason to object to the curriculum advisers report, however the decision not to renew or appoint the applicant was not her decision and she was not part of that decision. Regarding the disciplinary process she acknowledged that she did not give an outcome in writing but she had a dscussion with the circuit manager, but she issue the final written warning. Should further acknowledged that she was instructed to institute disciplinary proceedings against the applicant by the circuit manager, and that she would not have instituted such action herself.
30. Ms Tiutus, acting head of department at the school since July 2018, testified that she did the minutes of the disciplinary meeting and that she amended it at the request of applicant. He indicated that it was not correct, and she made certain amendments.
31. Mr Jerome Mevissen, SGB chairperson since April 2019, stated that he was the deputy chair in 2018. He testified about the letter sent by the chairperson, Mr Williams, dated 4 December 2018, to the District Office about the non-approval of the conversion or extension of the applicant’s contract. He acknowledged that the applicant had been nominated and when that was done there was no reason to question the nomination, but since then issues came to the fore and he would have objected. He did not however dispute the letter on behalf of the SGB on 4 December 2018 requesting the reconsideration of the non-conversion of applicant’s contract. He confirmed that SGB did not receive any reasons for the non-conversion, but that the circuit manager Mr. De Wet later provided reasons.
32. Mr Keith De Wet testified that he had been circuit manager since 2016 and explained his role and duties. He testified about establishment of the school in 2018, and that he had contacted the applicant to check his availability to take up a position at the school, and that the applicant was then appointed on a 12 month fixed term contract. He stated that he instituted the misconduct action his office and he wrote the letter after they received the reports from the curriculum adviser. In the report the applicant’s performance was mentioned and he decided to institute disciplinary action. He instructed the principal, who was acting principal at that stage, to engage in progressive discipline. He denied that he determined the sanction of a final written warning.
33. Regarding the applicant’s extension or conversion of contract he stated that he did not approve the conversion or extension, based on the applicant’s poor performance. The letter was signed by him and he discussed the matter with Mr Schereka, the district director, who however was not available to sign and someone else signed on his behalf. He stated that they were entitled to look at the performance of non-permanent contract employees and they must have a record of good performance before the contract can be converted to a permanent contract, and the same applies in terms of renewal of contract. He denied that he has a vendetta against applicant and only looked at his performance, which was not good. He stated that they received the letters from the SGB requesting reasons for the non-renewal and non- conversion and that he escalated the matter to head office and he did not give any reasons himself. He did not know what response the head office gave.
34. Regarding the non-conversion of applicant he was referred to the Circular 6/2019 indicating that the temporary appointment to a permanent appointment is done at the discretion of the Head of Education, in this instance Mr Brain Schreuder, and he indicated it did not go to the Head of Education because they did not approve the recommendation. He exercised his discretion as the circuit manager not to recommend conversion.
35. During questioning he explained how he understood progressive discipline and indicated that it is used to make a teacher aware of transgressions and this is what was done in this instance. He made a determination to act against the applicant on the basis of the curriculum advisor reports he received and instructed the principal accordingly. He was happy with the final written warning that was issued; progressive discipline had taken its course and was there. There was now a 6- month written warning on the applicants file. He denied that the applicant was punished twice when his contract was not renewed, stating that the contract expired.
36. Regarding the allegation of poor work performance he testified that the he did not follow schedule 8 of the Code of Good Practice in LRA as they did not follow a labour process, and that he was not a labour law expert. There was no incapacity process as they could not start such a process after the final written warning letter was issued. However he re-iterated that the applicant’s contract could not be renewed due to his poor performance. The applicant’s renewal of contract was not approved by the District office and therefore it was not necessary for the Head of Education to exercise any discretion. It was not necessary for the process to go any further. He confirmed that the district director did not sign the letter of non-renewal because he was not available to sign it, but there was no written communication to confirm this. He further acknowledged that the IQMS is the recognized performance appraisal instrument and that according to the IQMS the applicant had performed and met all the required performance standards.
37. Regarding the conversion of a contract to a permanent contract, he stated that that is done at the discretion of the Head of Education. In this instance the applicant’s nomination for conversion did not go to the Head of Education, because he as circuit manager did not support the conversion. It was not forwarded to Head of education; he used a loop hole to stop the process. He referred to section 6.3, which was in line with the Collective Agreement 4 of 2018, stating that he did not approve the nomination for conversion because on the basis of section 6.3 (c ), the applicant did not meet this criteria, and therefore could not recommend his conversion. When pointed out that 6.3 does not refer to the educator’s performance, but whether the educator met the requirement of the post, he indicated that he did not consider it like that.
38. When questioned by the arbitrator he stated that a contract can be renewed if there are no problems, he however accepted in this instance it was not found that applicant should have been dismissed for misconduct related to poor performance, and neither was there any finding that the applicant was incompetent. He further acknowledged that no incapacity poor performance procedure was followed either. Regarding the assessment by the circuit adviser he also acknowledge that he did not consult her about disciplinary action, but interpreted her report and exercised his discretion to take action
39. In closing the respondent submitted that the applicant was not dismissed, but that his contract expired and he was given notice informing him of said decision on 30 November 2018. The fact that the reason was not written in the notice does not constitute a dismissal, the circuit manager testified that he had informed the school principal as to why the district office did not recommend or approve the applicant’s nomination for renewal and/or conversion. The decision was taken in the best interests of learners, and there was no personal vendetta against the applicant. Further it was submitted that the applicant was a professional person, and he was expected to know the performance standards which he must meet and be capable of meeting. All the things that he had done wrong were found by the subject advisor in her report. All the things that he could do, he could do correctly if he had displayed sufficient care and diligence. The applicant has the capacity to do so if he wanted to. The reason the respondent was correct in not renewing his contract or converting it to permanency, was because of his negligence and not because of incapacity. This decision by the District Office, taken by the circuit manager, in consultation with the district director, was accordingly correct and cannot be construed as double jeopardy.
40. The respondent further submitted the employer did not use misconduct not to renew the applicant’s contract, as he was punished for his misconduct and received a final written warning as was testified by the acting principal. However the month later his contract come to an end. The circuit manager stated that they had to consider the performance of all contract workers before deciding whether to renew or to convert contracts. The respondent applied a normal practice.
41. Regarding possible relief sought by the applicant, in reference to a conversion of contract, it was submitted that the arbitrator does not have the authority to provide such relief as the arbitrator cannot order an appointment. The applicant’s contract can also not be deemed to be indefinite nature. In conclusion it was submitted that the respondent did not create a reasonable expectation of renewal and that his contract had the starting date and an end date. The circuit manager explained the reasons why they did not recommend the applicant’s nomination for renewable conversion and denied that he had a vendetta against applicant and that no such evidence was presented by the applicant. It was thus requested that the application for an unfiar dismisal be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
42. It was noted that the issue in this dispute related to an alleged unfiar dismissal, based on an expectation of renewal, as per section 186 (1) (b) (i) of the LRA. It is trite law that there are two types of fixed-term contracts: those concluded for a particular chronological period, and those in which the employee is engaged for a particular project. When drafting the LRA, the lawmakers gave some attention to these types of contract. The LRA in Section 186 (1) (b) makes provision that one of the definitions of a dismissal is that an employee 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 favorable terms, or did not to renew it at all. Without such an expectation, those employed on fixed-term contracts have no remedies under the LRA (see, for instance some of the latest examples, Joseph v University of Limpopo & others [2011] 12 BLLR 1166 (LAC); MEC for the Department of Finance, Eastern Cape v De Milander & others [2011] 9 BLLR 893 (LC)). In the matter of Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) the Court in fact determinded that such a fixed them contact terminates by operation of law at the end of its term, and such termination does not constitute a dismissal.
43. In terms of section 192(1) of the LRA an employee must establish the existence of a dismissal. In order for an employee to prove that he or she was dismissed in terms of s 186(1) (b) the employee bears the onus of proving that he or she had a reasonable expectation that the contract would be renewed. According to Grogan Workplace Law (6 ed.) at 106: 'The notion of a reasonable expectation clearly suggests an objective test: the employee must prove the existence of facts, which would lead a reasonable person to anticipate renewal. The facts that will found a reasonable expectation will differ from case to case, but will most commonly take the form of some prior promise or past practice - eg where the employer has habitually renewed the contract.'
44. Without repeating al the evidence it was noted in this instance the applicant was appointed on fixed term contract for 12 months, as were the other educators starting at the school in its first year of existence. The work for which the applicant was appointed and the classes would continue on 2019, and the school would extend its classes in 2019 to grades 4-6. In this instance application forms for renewal of the educators, including the applicants contract for 2019, was completed and submitted to the respondent. It was confirmed by evidence that was not disputed, that the SGB had recommended at their meeting of 15 October 2018 that the applicant’s contract be extended and also recommended that his contact be converted and the necessary documentation submitted to the District Office accordingly. The meeting also decided that the documents and contracts should be signed on 18 October 2018 and that all teachers involved will be informed accordingly. It was noted that all these decisions were accepted by the whole SGB.
45. In the matter of Pik-It-Up Johanneburg Pry Ltd v SALGA & others, 32 ILJ 2728 (LC) it stated that the LRA does not provide a definition of the concept of “reasonable expectation”. The concept has however been defined by case law to include (a) equity and fairness, (b) existence of substantive expectation that the fixed term contract would be renewed, (c) the employee subjectively expecting the contract to be renewed or extended, (d) objective factors that support the expectation. It was thus stated that the employee must prove a subjective belief of an expectation of renewal, as well as objective factors that supported such an expectation, looking at the totality of the evidence. Considering the decisions and recommendations from the SGB and the subsequent notification to the educator’s, including to the applicant, I find that as noted in the above case the applicant had proven a subjective belief of an expectation of renewal, as well as proven the objective factors that supported such an expectation. This is further proven in that all the other educators who had been appointed on the same basis on fixed term contracts, had their contracts either renewed and/or converted, which proves that the work and position had not ‘expired’, otherwise their contracts would have terminated by operation of law on the date of expiry on 31 December 2018. I find that the applicant has proven an expectation of renewal and that a dismissal occurred.
46. It is further patently clear that the applicant’s renewal of contract and/or conversion had been dealt with and was treated very differently by the respondent in comparison to the other educators. It is in this respect that the respondent’s submission that the applicant’s contract expired by effuxion of time as a fixed term contract, meaning a termination of contract by operation of law, is very contradictory, because the respondent then submits the reason why the applicant’s contract was not renewed was because of his poor performance. The respondent then further attempts to distinguish between poor performance related to incapacity and poor performance misconduct and submits and implies that in this instance the respondent states that because the applicant misconducted himself, his contract could not be renewed. But by stating it was not a incapacity issue, it also confirms that that the applicant was not incompetent to perform. No evidence was presented before the arbitration hearing that the applicant either committed any further misconduct, or that an incapacity procedure for poor performance was instituted against the applicant.
47. It was found SACTWU & another v Cadema Industries (Pty )Ltd, Labour Court case no. C277/05 dated 24 January 2008, unreported; SILCS 2008:4 the Labour Court held that in circumstances where the contract is not renewed because of operational requirements and the employee has a reasonable expectation that that contract would be renewed, the employer is obliged to comply with the operational requirement procedures in the LRA for the dismissal, to be fair. And for the dismissal to be substantively fair, in these case circumstances, the employer has to prove that the dismissal was for a valid and legitimate reason. Once the expectation of renewal has been proven and that a dismissal ocurred, the burden shifts to the employer to prove dismissal was fair.
48. In this instance the employer submitted that the applicant was found guilty of poor performance, therefore he could not be considered for renewal of his contract. It is common cause that the applicant was charged with misconduct for poor performance and issued with a final written warning and with that the matter became moot. No further disciplinary offenses was brought against the applicant following the issuing of the final written warning. The applicant was not dismissed during the misconduct proceedings, and I am in agreement with the applicant that considering the misconduct of the applicant after the fact, does in fact constitute a form of double jeopardy.
49. A further contradiction from the respondent in this regard is that the respondent submits in argument that the poor performance was unrelated to the applicant’s capacity and that no poor performance procedure needed to be instituted. The circuit manager however considered the issue of poor performance without clearly distinguishing between whether this was a disciplinary issue or incapacity issue. In his testimony he confirmed that he did not consider these issues and did not comply with Schedule 8, Code of Good Practice of the LRA. His testimony where he stated that the employer need not have instituted incapacity proceedings, because the contract was going to terminate at the end of the year in any case, is significant in this instance. The respondent did not apply the principles of the LRA and specifically Schedule 8 of the Code of Good Practice in dismissing the applicant. I find that the dismissal was unfair.
50. I therefore find that the applicant has discharged the burden of proving that he had a reasonable expectation of renewal and that a dismissal had taken place. I further find that such dismissal was unfair.
51. The applicant also submitted that he had an expectation of conversion to a permanent contract, for the very same reasons that I have agreed and find that the applicant had an expectation renewal of his fixed term contract, based on the actions of the SGB and his nomination for conversion of his contract, I find he has an expectation of a permanent contract through conversion of his contract. The employer submitted that I do not have jurisdiction to consider this as it that would imply that I am making an appointment. In terms of the amended section 186 (1) (b) (ii) of the LRA all fixed term contract employees are entitled to claim a legitimate expectation of a definite employment contract. The matter is however moot in this instance as the applicant indicated he was seeking compensation as relief.
52. It should be noted however that I find that the circuit manager Mr De Wet acted without the authority when he determined that he need not submit the application for conversion to the Head of Education for consideration. He in effect testified that he used a loophole because he did not approve the conversion. He is however not the decision-maker, and the reason he forwarded for declining the approval was the applicant’s poor performance, but this was clearly not in accordance with the the Collective Agreement 4 of 2018, stating that he did not approve the nomination for conversion because on the basis of section 6.3 (c ) the applicant did not meet this criteria, but the criteria that he referred to was not related to an employees performance, but whether the educator met the requirements of the post.
53. I do however therfor advise that in the light of the unfair dismissal of the applicant, should he apply for any appropriate position for which he qualifies within the WCED in the future, that his application be accepted and considered and treated without any prejudice.
AWARD
54. I find that the applicant Mr Ricardo Myburgh has proven that he had an expectation of renewal of his 12 month fixed term contract and that there had been a dismissal in terms of s186 (1) (b) (i), and that such dismissal was unfair.
55. I order the following:
54.1. That the respondent the Western Cape Education Department pay compensation equal to the 12 month fixed terms contract salary that the applicant would have earned had his contract been renewed. Section 194 of the LRA provided for a maximum compensation equal to 12 months compensation, which I deem to be just and equal in this circumstance.
54.2. The applicant indicated and quantified the 12 month salary of a fixed term contract at his level for 2019 as R 382 500-00. Should there be a discrepancy in this amount, the parties can address me on the issue and I will issue a variation ruling accordingly.
54.3. I order payment of the full amount of compensation of R 382 500-00 to the applicant Mr Myburgh by not later than the 24 January 2020.
Commissioner: Retief Olivier
Province: Western Cape
Applicant: NAPTOSA obo R Myburgh
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Metro East District Office of the Western Cape Education Department (WCED), Kuilsriver
Award Date: 12 December 2019
Arbitrator: Retief Olivier
Arbitrator: Retief Olivier
Case number: 796-18/19 WC
Date of Award: 12 December 2019
NAPTOSA obo R Myburgh Applicant
and
Western Cape Education Department Respondent
Applicant representative: Xolile Zigebe - NAPTOSA
Telephone: 021 686 8521
Telefax: 021 689 2998
Respondent: Western Cape Education Department
Telephone: 021 - 467 2846
Telefax: 021 - 425 8612
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing took place at the Metro East District Office of the Western Cape Education Department (WCED), Kuilsriver on 12 April 2019, 22 July 2019, 6 September 2019, 5 November 2019 and 8 December 2019. Mr Xolile Zigebe, NAPTOSA official represented the applicant, Mr Ricardo Myburgh. Mr Zola Dayimani, represented the employer, WCED. It was agreed that written closing arguments would be presented not later than 25 November 2019.
ISSUE TO BE DECIDED
2. The applicant Mr Myburgh referred the matter to the ELRC as a dismissal dispute. The employer denied that the applicant was dismissed, stating that the employee’s fixed term contract had expired and no dismissal had taken place. The applicant stated that he was on a fixed term contract, that he had been nominated for extension and/or conversion of his fixed term contract to a permanent contract by the SGB, and that he had a reasonable expectation of renewal of his fixed term contract.
3. I must therefore decide if the applicant was dismissed, and if he was dismissed, whether the employer had dismissed him fairly.
BACKGROUND TO THE ISSUE
4. The applicant was appointed on a year fixed term contract at a new school in Macassar, False Bay Primary. Most of the teachers appointed were appointed on this basis. The applicant like other educators had shown interest in becoming permanent. The school had to extend its classes in 2019, and the educators could either indicate whether they wished to have their contracts renewed or having their contracts converted. In addition the applicant also completed forms as required and requested by the SGB for conversion of his fixed term contract to one of permanency. His nomination was recommended by the SGB. The applicant’s contract was however not renewed or converted. He then referred a dismissal dispute.
5. The respondent submitted that no dismissal had occurred and that his contract had expired as it was a fixed term contract for one year. He was notified that the contract would not be extended on 30 November 2018. The circuit manager, Mr De Wet noted that his nomination for the renewal or conversion of his contract was not recommended, as Mr De Wet submitted he did not meet the required performance standards and performed below average.
6. During the year school based assessments were conducted by the circuit advisor and the respondent submitted that on the basis of particularly the final assessment conducted in October 2018 the applicant was not meeting the required performance standard. However the respondent then elected to charge the applicant with misconduct related to poor performance. This was decided by the circuit manager, who then instructed the acting principal Ms. Fairbairn to institute progressive disciplinary proceedings, and a disciplinary enquiry was held and she issued a final written warning. It was noted that she issued the final written warning without a specific outcome, as she did not did make any specific findings relating to the charges laid against the applicant in that instance.
7. The applicant indicated that he disputed some of the findings of the curriculum advisor’s assessments, and noted that was he not found to be incompetent, and that in the only relevant performance management instrument, the IQMS, his performance was evaluated as above average. The applicant further submitted that he had an expectation of renewal of his contract and that the alleged poor performance had been dealt with by the respondent as a misconduct issue, and a warning was issued, and can not be used as pretext not to renew his contract.
SURVEY OF EVIDENCE AND ARGUMENT
8. The parties led detailed and exhaustive evidence and submitted written closing arguments. Bundles of documents were also submitted as evidence. It should be noted that much of the evidence however presented over 5 days of testimony in the arbitration hearing related to the school based assessments and disciplinary enquiry, and this is not the key issue in dispute in this arbitration hearing. I am not repeating all of this evidence, am only referring to those aspects relevant to determine the dispute regarding an expectation of renewal, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.
Employee’s version:
9. Mr Ricardo Myburgh testified in summary that he was recruited and resigned from his previous school and was appointed on contract to teach a multi-grade 2 and 3 class in False Bay Primary in 2018. The school only started in 2018. He stated he was a qualified teacher and could teach all three grades 1 to 3, although he has been teaching a special needs pre-vocational class and grade 4 mainstream. He explained the situation in the school and the class, where many learners could not speak or write in English. He explained that for the first semester he had a multi grade English class grade 2 and 3, with Ms. Fairbairn having the multi-grade Afrikaans grade 2 and 3 class. She become the acting principle and in the second semester the Afrikaans learners were put in his grade 3 class and similarly his grade 2 learners were put together with the Afrikaans learners in a grade 2 class. He then had a combined Afrikaans English grade 3 classes. He explained the assessment process followed by the curriculum adviser and he expressed concerns about the lack of support and the lack of teaching material and the difficulties he had with the learners who did not know English. He also paid for a teacher assistant.
10. Regarding the assessment processes he also stated that the curriculum advisor confused the classes as Ms. Fairbairn’s had not marked all her learners’ books, and he was then assessed on her work because they were now in his class in the second semester. He also submitted that his concerns and complaints were not attended to. Following the last assessment he was charged with misconduct related to poor performance, and was called to a progressive disciplinary meeting. The acting principal Ms. Fairbairn chaired this hearing, and she issued a final written warning valid for six months. She did not issue an outcome or any findings related to the charges of the disciplinary hearing. Although it was stated that the disciplinary charges followed from the assessment by the curriculum advisor Ms. Sulfah Cloete, he stated she never neither discussed this with him, nor indicated that he would be facing disciplinary charges. He was never found to be incompetent. He was issued with a final written warning on 16 November 2018. He stated and alleged that the final written warning was in fact issued to him by the principle on the instruction of the circuit manager Mr. De Wet, who had a vendetta against him.
11. Regarding the non-renewal of his contract, he stated that when he started with the school in 2018 it was already made clear that the classes will be extended in the next year with grades 4 to 6 to be added and that the posts would continue. He stated that on 15 October 2018 he was informed that the SGB approved the renewal of their contracts, including his own and that the principal, together with chair of the SGB, would be forwarding the letters of recommendation for the conversion process terms of section 6(b) of the Collective Agreement 4 of 2018. They submitted the signed conversion letters to the circuit manager Mr De Wet.
12. He was later informed by the principal that, in a letter dated 15 November 2018, from the Metro East District office, that neither the renewal of his contract, nor conversion of his contract was recommended by the District Office and therefore not approved. The letter was signed by the circuit manager, Mr De Wet, but was not signed by the District Director. Of the five educators recommended and nominated by the SGB for conversion, only his was not approved. The letter indicating the non-renewal did not provide any reasons for the decision. He submitted a grievance and at the grievance hearing on 14 December 2018 he was informed that the reason for the non-renewal and non-conversion was due to his poor performance as per the subject (curriculum) advisor’s report. He submitted that there was no incapacity procedure related to poor performance and that no further disciplinary action was taken against him following the issuing of the final written warning dated 15 November 2018.
13. Ms. Muneelwe Dalvey, a teacher, testified about an affidavit that she submitted that Ms. Fairbairn had told her on 16 November 2018 that the circuit manager Mr De Wet had instructed her to issue a final written warning to the applicant and that Ms. Titus was also present when Ms. Fairbairn told her this. The applicant also challenged Ms. Fairbairn about this when he heard about it.
14. Mr Marco Williams, chairperson of the SGB in 2018 testified about the decision of the District Office about the applicant’s non-renewal and non-conversion of his contract and stated that he wrote a letter to the Department requesting information and reasons for the decision. He also called a SGB meeting for 3 December 2018 to discuss the matter, and then drafted a letter on behalf of the SGB to the Department. He submitted that it did not appear fair that only the applicant’s contract was not renewed, when all the other educators had been nominated and recommended for either renewal of their contracts or conversion of their contracts. He did not receive any feedback from the Department however. He had expected that they would at least be provided with reasons. The SGB had recommended at their meeting of 15 October 2018 that the applicant’s contract is extended and it also recommended that his contact be converted and the necessary documentation had been submitted accordingly. The meeting also decided that the documents and contracts be signed on 18 October 2018 and that all teachers involved will be informed accordingly. It was noted that all these decisions were accepted by the whole SGB.
15. Regarding the disciplinary hearing of the applicant and the final written warning that was issued on 15 November 2018 he testified that this letter had not been copied to the SGB and the principal did not inform them of the issuing of the final written warning. This is also not conveyed to them when the district office issued the letter on 30 November 2018, indicating that the district and the circuit manager does not approve the request for conversion to a permanent appointment or the extension of the applicant’s contract. He reiterated when questioned that the disciplinary process was not reported to him by the principal and never reflected in any minutes of the SGB
16. Mr Seipati Momoi testified that he was a parent who had a child in the applicant’s class and the applicant informed him of the problems his child had with not being able to speak English and they worked together to help the child. He indicated that he was very happy with the support the applicant provided and that his child improved and he was very happy with the applicant’s abilities and teaching, as he went the extra mile for the learners.
17. In closing it was submitted that the applicant was appointed on a year contract at a new school in Macassar. The applicant like other educators had wanted to become permanent. The school had to extend its classes in 2019. (Extension of curriculum to grade 4-6.) Application forms for renewal of the applicant’ contract for 2019 was completed and submitted to the respondent. The applicant’s contract was not renewed. In addition the applicant also completed forms for conversion of his fixed term contract to one of permanency. The SGB considered the renewal of contracts and the conversion of those who wanted to be made permanent and supported the applicant’s renewal of contract and conversion.
18. Regarding the disciplinary action the applicant was issued with notice of progressive discipline based on poor work performance. The acting principal issued the final outcome without findings being made. The circuit manager instructed the acting principal to conduct the process based on the subject advisors report and instructed her to issue the final written warring. Attention is drawn to the last sentence in this instruction “failing to adhere to this formal instruction will possibly result in disciplinary action being instituted against you.” The circuit manager threatened the acting principal. The acting principal further during cross-examination testified that she would not have charged the applicant for the above matter. The final written warning was issued as valid for 6 months; meaning that the outcome would be on the applicant for a period of 6 months. It is unfair to the applicant that he should be punished twice for the same offence. The matter should have been regarded as moot after the disciplinary meeting.
19. The circuit manager conceded that he had not considered the Labour Relations Act Item 8 schedule 8 and he further testified that it was his personal decision not to renew the contract and the repudiation of the conversion. The reference to the discretion of the Head of Department was not exercised by a competent person. This is contrary to the Collective Agreement on conversion of the employment contract. The criteria to be followed when considering conversion is based on section 6.3 (a-d) of Collective Agreement 4 of 2018.
20. Regarding the allegation that the applicant performed poorly, according to the circuit advisor reports, it is important to note that Collective Agreement number 8 of 2003 on the Integrated Quality Management System (IQMS) is the recognized tool used for assessment and in this the applicant did exceptionally well and scored above average. It was further submitted the circuit manager misled the hearing that the report was discussed with the circuit advisor. He changed his version and conceded in the hearing that the reports were not discussed with her and that he gave the instruction to discipline based on how he interpreted the reports.
21. Regarding the legal principles 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 is only when the employee successfully proves that the respondent has failed to fulfil a reasonable expectation of renewal of the contract or retaining the employee that the applicant 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 the contract would be renewed does not count unless the applicant proved objectively that his fixed term contract would be renewed on the same or similar terms. The evidence led by the applicant’s witnesses and the concessions made by the respondent witnesses confirm that an expectation was created. The minutes of the SGB from October and December meetings all point to one direction that the applicant’s renewal of his contract was agreed upon. The circuit manager had grudges against the applicant and acted ultra vires. The SGB requested reasons why the applicant’s contract was not renewed. Until this date the request of the SGB has not been answered by the stake holders involved.
22. The applicant referred to matter in the Constitutional Court in Walele v City of Cape Town and Others 2008(6) SA 129 (CC) where the court held;
“The court 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 contract would be renewed on the same or similar terms.”
23. Based on this ruling it was submitted that the applicant had proven that he had an expection of renewal of his fixed tems contract and that the repondent has dismissed him. it is acknowledged that the employment relationship between the applicant and the respondent was broken down and the applicant’s integrity and professionalism was damaged beyond control by the circuit manager, by bad referencing. The applicant suffered emotionally and financialy as a result of the conduct of the respondent and requested to be compensated.
Respondent’s version:
24. Ms Zulfah Cloete, subject advisor, testified about the school based assessments she did, including at the applicant’s school, indicating it fell within her area and explained that schools are informed before hand of her visits and that teachers had to prepare schedules and books for her visit. She did three assessments at the school and before her first visit the applicant had contacted her seeking information. After the first assessment she found the applicant’s performance satisfactory and made some recommendations for improvement. She acknowledged that she was not aware that the acting principal Ms. Fairbairn had taught some of the learners in the class in the first semester, and that she was therefor assessing some of the work of Ms Fairbairn, which reflected as a criticism of the applicant in that she noted there were some documents missing. In the second assessment she found that there was not sufficient space in the classroom and it impacted on learning and there was insufficient number of activities in the learner’s workbooks. The applicant knew the content and they spoke about what he could do more. She found that the learner’s ability was quite elementary for a grade 3 class. Not all the books were marked and but she also found that the department did not supply all the necessary textbooks.
25. She stated that in her last assessment visit in October 2018 she was disappointed as the applicant had not prepared properly and there was lot of material and information missing. She discussed the findings with the applicant and indicated that she had not seen any improvement from previous visit and that this performance was below standard. She stated that at some point later the applicant contacted her about the reports and informed her that because of the reports they were going to dismiss him, and she indicated she was not aware of this and did not know anything about it, as she did not know what happens afterwards with the reports. She was not aware of or involved in the disciplinary hearing.
26. When questioned she indicated that the applicants performance in the first assessment was found to be satisfactory. She confirmed that she never found him be incompetent, but that she found his performance as below average after the third visit. She stated that she was unaware of the disciplinary hearing, but confirmed that the circuit manager had discussed her reports.
27. Ms Fairbairn, acting principal, stated that the applicant was not dismissed, but his contract expired on 31 December 2018, and that he was informed of this on 30 November 2018. The decision not to renew his contract or to convert his contract was not taken by the SGB, but the district office. They were not given reasons, but the circuit manager informed the applicant of the reasons at his grievance hearing. She stated that the SGB does not appoint, but can only recommend and make a nomination for conversion or renewal. In this instance that SGB followed the proper procedures when they made nominations and the applicant was also nominated for renewal of contract and/or conversion of his contract.
28. Regarding the disciplinary process she stated that she issued the final written warning based on his poor performance as an educator at the school. She stated that she came to the decision to issue the final written warning in consultation with the district office, as she was newly appointed, and there was nothing wrong to seek advice. She confirmed she received instruction from the circuit manager to institute the disciplinary proceedings. She denied the allegation made by Ms Dalvey that the circuit manager instructed her to issue the final written warning. Regarding the curriculum advisors reports she stated the applicant had not complied with all the strategies and processes, and denied that they did not provide support to him.
29. During questioning she acknowledges that SGB nominated to the applicant that the SGB meeting on 15 October 2019, and that she became aware of the applicants inadequacy from the curriculum advisors final report submitted after that date. She had no reason to object to the curriculum advisers report, however the decision not to renew or appoint the applicant was not her decision and she was not part of that decision. Regarding the disciplinary process she acknowledged that she did not give an outcome in writing but she had a dscussion with the circuit manager, but she issue the final written warning. Should further acknowledged that she was instructed to institute disciplinary proceedings against the applicant by the circuit manager, and that she would not have instituted such action herself.
30. Ms Tiutus, acting head of department at the school since July 2018, testified that she did the minutes of the disciplinary meeting and that she amended it at the request of applicant. He indicated that it was not correct, and she made certain amendments.
31. Mr Jerome Mevissen, SGB chairperson since April 2019, stated that he was the deputy chair in 2018. He testified about the letter sent by the chairperson, Mr Williams, dated 4 December 2018, to the District Office about the non-approval of the conversion or extension of the applicant’s contract. He acknowledged that the applicant had been nominated and when that was done there was no reason to question the nomination, but since then issues came to the fore and he would have objected. He did not however dispute the letter on behalf of the SGB on 4 December 2018 requesting the reconsideration of the non-conversion of applicant’s contract. He confirmed that SGB did not receive any reasons for the non-conversion, but that the circuit manager Mr. De Wet later provided reasons.
32. Mr Keith De Wet testified that he had been circuit manager since 2016 and explained his role and duties. He testified about establishment of the school in 2018, and that he had contacted the applicant to check his availability to take up a position at the school, and that the applicant was then appointed on a 12 month fixed term contract. He stated that he instituted the misconduct action his office and he wrote the letter after they received the reports from the curriculum adviser. In the report the applicant’s performance was mentioned and he decided to institute disciplinary action. He instructed the principal, who was acting principal at that stage, to engage in progressive discipline. He denied that he determined the sanction of a final written warning.
33. Regarding the applicant’s extension or conversion of contract he stated that he did not approve the conversion or extension, based on the applicant’s poor performance. The letter was signed by him and he discussed the matter with Mr Schereka, the district director, who however was not available to sign and someone else signed on his behalf. He stated that they were entitled to look at the performance of non-permanent contract employees and they must have a record of good performance before the contract can be converted to a permanent contract, and the same applies in terms of renewal of contract. He denied that he has a vendetta against applicant and only looked at his performance, which was not good. He stated that they received the letters from the SGB requesting reasons for the non-renewal and non- conversion and that he escalated the matter to head office and he did not give any reasons himself. He did not know what response the head office gave.
34. Regarding the non-conversion of applicant he was referred to the Circular 6/2019 indicating that the temporary appointment to a permanent appointment is done at the discretion of the Head of Education, in this instance Mr Brain Schreuder, and he indicated it did not go to the Head of Education because they did not approve the recommendation. He exercised his discretion as the circuit manager not to recommend conversion.
35. During questioning he explained how he understood progressive discipline and indicated that it is used to make a teacher aware of transgressions and this is what was done in this instance. He made a determination to act against the applicant on the basis of the curriculum advisor reports he received and instructed the principal accordingly. He was happy with the final written warning that was issued; progressive discipline had taken its course and was there. There was now a 6- month written warning on the applicants file. He denied that the applicant was punished twice when his contract was not renewed, stating that the contract expired.
36. Regarding the allegation of poor work performance he testified that the he did not follow schedule 8 of the Code of Good Practice in LRA as they did not follow a labour process, and that he was not a labour law expert. There was no incapacity process as they could not start such a process after the final written warning letter was issued. However he re-iterated that the applicant’s contract could not be renewed due to his poor performance. The applicant’s renewal of contract was not approved by the District office and therefore it was not necessary for the Head of Education to exercise any discretion. It was not necessary for the process to go any further. He confirmed that the district director did not sign the letter of non-renewal because he was not available to sign it, but there was no written communication to confirm this. He further acknowledged that the IQMS is the recognized performance appraisal instrument and that according to the IQMS the applicant had performed and met all the required performance standards.
37. Regarding the conversion of a contract to a permanent contract, he stated that that is done at the discretion of the Head of Education. In this instance the applicant’s nomination for conversion did not go to the Head of Education, because he as circuit manager did not support the conversion. It was not forwarded to Head of education; he used a loop hole to stop the process. He referred to section 6.3, which was in line with the Collective Agreement 4 of 2018, stating that he did not approve the nomination for conversion because on the basis of section 6.3 (c ), the applicant did not meet this criteria, and therefore could not recommend his conversion. When pointed out that 6.3 does not refer to the educator’s performance, but whether the educator met the requirement of the post, he indicated that he did not consider it like that.
38. When questioned by the arbitrator he stated that a contract can be renewed if there are no problems, he however accepted in this instance it was not found that applicant should have been dismissed for misconduct related to poor performance, and neither was there any finding that the applicant was incompetent. He further acknowledged that no incapacity poor performance procedure was followed either. Regarding the assessment by the circuit adviser he also acknowledge that he did not consult her about disciplinary action, but interpreted her report and exercised his discretion to take action
39. In closing the respondent submitted that the applicant was not dismissed, but that his contract expired and he was given notice informing him of said decision on 30 November 2018. The fact that the reason was not written in the notice does not constitute a dismissal, the circuit manager testified that he had informed the school principal as to why the district office did not recommend or approve the applicant’s nomination for renewal and/or conversion. The decision was taken in the best interests of learners, and there was no personal vendetta against the applicant. Further it was submitted that the applicant was a professional person, and he was expected to know the performance standards which he must meet and be capable of meeting. All the things that he had done wrong were found by the subject advisor in her report. All the things that he could do, he could do correctly if he had displayed sufficient care and diligence. The applicant has the capacity to do so if he wanted to. The reason the respondent was correct in not renewing his contract or converting it to permanency, was because of his negligence and not because of incapacity. This decision by the District Office, taken by the circuit manager, in consultation with the district director, was accordingly correct and cannot be construed as double jeopardy.
40. The respondent further submitted the employer did not use misconduct not to renew the applicant’s contract, as he was punished for his misconduct and received a final written warning as was testified by the acting principal. However the month later his contract come to an end. The circuit manager stated that they had to consider the performance of all contract workers before deciding whether to renew or to convert contracts. The respondent applied a normal practice.
41. Regarding possible relief sought by the applicant, in reference to a conversion of contract, it was submitted that the arbitrator does not have the authority to provide such relief as the arbitrator cannot order an appointment. The applicant’s contract can also not be deemed to be indefinite nature. In conclusion it was submitted that the respondent did not create a reasonable expectation of renewal and that his contract had the starting date and an end date. The circuit manager explained the reasons why they did not recommend the applicant’s nomination for renewable conversion and denied that he had a vendetta against applicant and that no such evidence was presented by the applicant. It was thus requested that the application for an unfiar dismisal be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENT
42. It was noted that the issue in this dispute related to an alleged unfiar dismissal, based on an expectation of renewal, as per section 186 (1) (b) (i) of the LRA. It is trite law that there are two types of fixed-term contracts: those concluded for a particular chronological period, and those in which the employee is engaged for a particular project. When drafting the LRA, the lawmakers gave some attention to these types of contract. The LRA in Section 186 (1) (b) makes provision that one of the definitions of a dismissal is that an employee 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 favorable terms, or did not to renew it at all. Without such an expectation, those employed on fixed-term contracts have no remedies under the LRA (see, for instance some of the latest examples, Joseph v University of Limpopo & others [2011] 12 BLLR 1166 (LAC); MEC for the Department of Finance, Eastern Cape v De Milander & others [2011] 9 BLLR 893 (LC)). In the matter of Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) the Court in fact determinded that such a fixed them contact terminates by operation of law at the end of its term, and such termination does not constitute a dismissal.
43. In terms of section 192(1) of the LRA an employee must establish the existence of a dismissal. In order for an employee to prove that he or she was dismissed in terms of s 186(1) (b) the employee bears the onus of proving that he or she had a reasonable expectation that the contract would be renewed. According to Grogan Workplace Law (6 ed.) at 106: 'The notion of a reasonable expectation clearly suggests an objective test: the employee must prove the existence of facts, which would lead a reasonable person to anticipate renewal. The facts that will found a reasonable expectation will differ from case to case, but will most commonly take the form of some prior promise or past practice - eg where the employer has habitually renewed the contract.'
44. Without repeating al the evidence it was noted in this instance the applicant was appointed on fixed term contract for 12 months, as were the other educators starting at the school in its first year of existence. The work for which the applicant was appointed and the classes would continue on 2019, and the school would extend its classes in 2019 to grades 4-6. In this instance application forms for renewal of the educators, including the applicants contract for 2019, was completed and submitted to the respondent. It was confirmed by evidence that was not disputed, that the SGB had recommended at their meeting of 15 October 2018 that the applicant’s contract be extended and also recommended that his contact be converted and the necessary documentation submitted to the District Office accordingly. The meeting also decided that the documents and contracts should be signed on 18 October 2018 and that all teachers involved will be informed accordingly. It was noted that all these decisions were accepted by the whole SGB.
45. In the matter of Pik-It-Up Johanneburg Pry Ltd v SALGA & others, 32 ILJ 2728 (LC) it stated that the LRA does not provide a definition of the concept of “reasonable expectation”. The concept has however been defined by case law to include (a) equity and fairness, (b) existence of substantive expectation that the fixed term contract would be renewed, (c) the employee subjectively expecting the contract to be renewed or extended, (d) objective factors that support the expectation. It was thus stated that the employee must prove a subjective belief of an expectation of renewal, as well as objective factors that supported such an expectation, looking at the totality of the evidence. Considering the decisions and recommendations from the SGB and the subsequent notification to the educator’s, including to the applicant, I find that as noted in the above case the applicant had proven a subjective belief of an expectation of renewal, as well as proven the objective factors that supported such an expectation. This is further proven in that all the other educators who had been appointed on the same basis on fixed term contracts, had their contracts either renewed and/or converted, which proves that the work and position had not ‘expired’, otherwise their contracts would have terminated by operation of law on the date of expiry on 31 December 2018. I find that the applicant has proven an expectation of renewal and that a dismissal occurred.
46. It is further patently clear that the applicant’s renewal of contract and/or conversion had been dealt with and was treated very differently by the respondent in comparison to the other educators. It is in this respect that the respondent’s submission that the applicant’s contract expired by effuxion of time as a fixed term contract, meaning a termination of contract by operation of law, is very contradictory, because the respondent then submits the reason why the applicant’s contract was not renewed was because of his poor performance. The respondent then further attempts to distinguish between poor performance related to incapacity and poor performance misconduct and submits and implies that in this instance the respondent states that because the applicant misconducted himself, his contract could not be renewed. But by stating it was not a incapacity issue, it also confirms that that the applicant was not incompetent to perform. No evidence was presented before the arbitration hearing that the applicant either committed any further misconduct, or that an incapacity procedure for poor performance was instituted against the applicant.
47. It was found SACTWU & another v Cadema Industries (Pty )Ltd, Labour Court case no. C277/05 dated 24 January 2008, unreported; SILCS 2008:4 the Labour Court held that in circumstances where the contract is not renewed because of operational requirements and the employee has a reasonable expectation that that contract would be renewed, the employer is obliged to comply with the operational requirement procedures in the LRA for the dismissal, to be fair. And for the dismissal to be substantively fair, in these case circumstances, the employer has to prove that the dismissal was for a valid and legitimate reason. Once the expectation of renewal has been proven and that a dismissal ocurred, the burden shifts to the employer to prove dismissal was fair.
48. In this instance the employer submitted that the applicant was found guilty of poor performance, therefore he could not be considered for renewal of his contract. It is common cause that the applicant was charged with misconduct for poor performance and issued with a final written warning and with that the matter became moot. No further disciplinary offenses was brought against the applicant following the issuing of the final written warning. The applicant was not dismissed during the misconduct proceedings, and I am in agreement with the applicant that considering the misconduct of the applicant after the fact, does in fact constitute a form of double jeopardy.
49. A further contradiction from the respondent in this regard is that the respondent submits in argument that the poor performance was unrelated to the applicant’s capacity and that no poor performance procedure needed to be instituted. The circuit manager however considered the issue of poor performance without clearly distinguishing between whether this was a disciplinary issue or incapacity issue. In his testimony he confirmed that he did not consider these issues and did not comply with Schedule 8, Code of Good Practice of the LRA. His testimony where he stated that the employer need not have instituted incapacity proceedings, because the contract was going to terminate at the end of the year in any case, is significant in this instance. The respondent did not apply the principles of the LRA and specifically Schedule 8 of the Code of Good Practice in dismissing the applicant. I find that the dismissal was unfair.
50. I therefore find that the applicant has discharged the burden of proving that he had a reasonable expectation of renewal and that a dismissal had taken place. I further find that such dismissal was unfair.
51. The applicant also submitted that he had an expectation of conversion to a permanent contract, for the very same reasons that I have agreed and find that the applicant had an expectation renewal of his fixed term contract, based on the actions of the SGB and his nomination for conversion of his contract, I find he has an expectation of a permanent contract through conversion of his contract. The employer submitted that I do not have jurisdiction to consider this as it that would imply that I am making an appointment. In terms of the amended section 186 (1) (b) (ii) of the LRA all fixed term contract employees are entitled to claim a legitimate expectation of a definite employment contract. The matter is however moot in this instance as the applicant indicated he was seeking compensation as relief.
52. It should be noted however that I find that the circuit manager Mr De Wet acted without the authority when he determined that he need not submit the application for conversion to the Head of Education for consideration. He in effect testified that he used a loophole because he did not approve the conversion. He is however not the decision-maker, and the reason he forwarded for declining the approval was the applicant’s poor performance, but this was clearly not in accordance with the the Collective Agreement 4 of 2018, stating that he did not approve the nomination for conversion because on the basis of section 6.3 (c ) the applicant did not meet this criteria, but the criteria that he referred to was not related to an employees performance, but whether the educator met the requirements of the post.
53. I do however therfor advise that in the light of the unfair dismissal of the applicant, should he apply for any appropriate position for which he qualifies within the WCED in the future, that his application be accepted and considered and treated without any prejudice.
AWARD
54. I find that the applicant Mr Ricardo Myburgh has proven that he had an expectation of renewal of his 12 month fixed term contract and that there had been a dismissal in terms of s186 (1) (b) (i), and that such dismissal was unfair.
55. I order the following:
54.1. That the respondent the Western Cape Education Department pay compensation equal to the 12 month fixed terms contract salary that the applicant would have earned had his contract been renewed. Section 194 of the LRA provided for a maximum compensation equal to 12 months compensation, which I deem to be just and equal in this circumstance.
54.2. The applicant indicated and quantified the 12 month salary of a fixed term contract at his level for 2019 as R 382 500-00. Should there be a discrepancy in this amount, the parties can address me on the issue and I will issue a variation ruling accordingly.
54.3. I order payment of the full amount of compensation of R 382 500-00 to the applicant Mr Myburgh by not later than the 24 January 2020.
Commissioner: Retief Olivier