Case Number: PSES 105-19/20 WC
Province: Western Cape
Applicant: Angela Daniels
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Constructive Dismissal
Award Date: 19 December 2019
Arbitrator: Hilary Mofsowitz
Panelist Hilary Mofsowitz
Case Number PSES 105-19/20 WC
Date of Award 19 December 2019
In the ARBITRATION between:
(Union / Applicant)
The Western Cape Education Department
Union/Applicant’s representative: Wikus Kriel
Telephone: 082 4655 766
Respondent’s representative: Bernadine Noble
Telephone: 023 348 4685
Details of hearing and representation
1. This is the award in the matter between Angela Esmelia Daniels (“the applicant”) and the Western Cape Education Department (“the respondent”).
2. The matter was scheduled for arbitration in Worcester in the Western Cape on 25 September 2019 and 2 December 2019. Parties requested and were given the opportunity to submit written closing argument on 9 December 2019. Submissions were received and have been duly considered.
3. Wikus Kriel (“Kriel”) an attorney with Kriel and Wentzel Attorneys represented the applicant.
4. Bernadine Noble (“Noble”) a labour relations official represented the respondent.
5. The proceedings were digitally recorded. The documentary evidence forms part of the record. The services of an Afrikaans interpreter were used.
Issue to be determined
6. I have to decide whether the applicant was dismissed and if so whether the dismissal was procedurally and substantively fair. The dispute was referred in terms of section 186 (1) (b) (i) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) as well as the applicable prescripts regulated by the ELRC. The applicant sought to be compensated for a further contractual period. The respondent denied dismissal.
Background to the dispute
7. The applicant was employed as an educator at De Villiers Primary School which is situated in Robertson in the Western Cape. She commenced employment at the school in March 2014 and it is undisputed that the applicant was employed on a contractual basis. The initial contract ran for the period of three months and thereafter she was employed for further contractual periods of three months duration which was rolled over until the end of March 2019. Her services were terminated at the end of March 2019. The termination of her services is the subject matter of this dispute. It is undisputed that only the first contract was reduced to writing and thereafter, the parties reached verbal agreements. The parties agreed that the applicant’s contract of employment was automatically renewed at the conclusion of each school term. At the time that the applicant’s services were terminated, she earned a monthly salary of R 22 797.25. Three other contract educators were also terminated at the same time.
8. The essence of the applicant’s case is that the respondent created a reasonable expectation that her contract would be renewed at least for a further contractual period. The school principal and members of the school governing body reassured her (at the beginning of January 2019) that her contract would be renewed and they reassured her that she need not worry “until her position was advertised in the school’s bulletin”. The expectation also arose out of the applicant’s long service at the school, approximately five to six years.
9. It is undisputed that the position that the applicant held, was advertised on 12 March 2019. The successful incumbent’s appointment was effective from January 2019 (a few months earlier than the advertisement). The applicant’s termination letter (dated 22 March 2019 and received a few days later), forms part of the record. It was therefore argued that the respondent’s failure to appoint the applicant for a further contractual period amounted to a dismissal and that the dismissal was procedurally and substantively unfair.
10. The respondent denied dismissal. The essence of its case is that the applicant’s termination resulted from the expiry of her contract. All contractual positions were advertised in the local newspaper in March 2019. The applicant competed in the process. She handed her application to the principal. The respondent denied creating any expectation of renewal of contract. Her contract was due to expire at the end of 2018, but on account of the late placement of the advertisement, the applicant was requested to come back to the school for the first term in 2019 (which she did). Her last contractual period ran from January to March 2019.
The applicant’s evidence and argument
11. The applicant testified. In relation to expectation, it was the applicant’s evidence that the school principal indicated to her that her position was safe, as long as it was not advertised in the school bulletin. The school bulletin is only published in June of each year and therefore at worst, the applicant’s position would have been safe at least until June 2019 or possibly August 2019 to allow for the recruitment process to run its course. She was reassured that there was no reason for concern. In relation to the rolling over of the contracts, it was the applicant’s evidence that the completion of an application form at the start of each school term, was a mere formality. It was usually completed once the term had already started. The expectation was therefore created from the continual rolling over of contracts for such a lengthy period. An expectation was also created in that the respondent did not give the applicant advance notice of three months prior to terminating her services. She painted her classroom (at her own expense) during December 2018. She also started a chess club at the beginning of 2019, again at her own expense. The principal did not discourage her. She would not have become involved in these activities if she thought that her services would be terminated so soon. Two members of the school governing body, Mr Joseph and Mr Seconds reassured her that the post would only be filled in 2020. This would minimize the disruption to learners and therefore members of the school governing body were surprised to discover that the position would be filled in 2019 (as opposed to 2020). Both Mr Seconds and Mr Joseph were not aware that the post would be filled for 2019. Mr Seconds indicated that he was “frightened” to testify at arbitration.
12. The applicant drew my attention to the fact that, the advertisement for her position, was placed in the newspaper on 12 March 2019, yet the decision to recruit new entrants was only taken at a meeting of the school governing body on 19 March 2019. The applicant reported the school principal to the Minister of Education (undisputed). In terms of this complaint, she criticized the principal for his treatment of learners and there was also an issue about late payments of salaries. The complaint came to the attention of the circuit manager. The applicant linked this complaint to the reason behind her “dismissal”.
The respondent’s evidence and argument
13. The principal of the school Russel Sampson (“Sampson”) testified. It was his evidence that the applicant was initially rated as an excellent educator, but over the last two years, there were constant complaints about her performance. In essence, he denied creating any expectation that the applicant would be employed on a definite or indefinite basis. Her employment was always subject to a limited duration. He denied saying to her that she only needed to worry if her position was advertised in the school bulletin. To substantiate his evidence, Sampson confirmed that the applicant would query every term whether she could return to the school. He advised her that she could return to school if the school governing body, did not make any other decision. He acknowledged that when he visited the school over the December holidays, he discovered the applicant painting her classroom. The applicant was fully aware that her post would be advertised at the end of 2018. He personally informed all the staff that all the contractual positions would be advertised at the end of 2018 in the local newspaper. The applicant submitted her application before the advertisement appeared. There was an administrative problem and that caused a delay in placing the advert. On account of the delay, all contract staff were asked to come back to school for the first term of 2019. It was made clear that new entrants would receive preferential treatment for appointments. This was stipulated in the advertisement (part of the record). The preferential treatment afforded to new entrants is a WCED requirement. This year was the first year that so many new entrants applied. In previous years they did not apply and suitable Foundation Phase educators also did not apply. All the new recruits recruited during March of this year, were all new entrants and all the posts were contractual posts. The placing of the advertisements was sanctioned by the school governing body before the positions were advertised (including the applicant’s position). The issue was discussed on numerous occasions.
Analysis of evidence and argument
14. The applicant’s dispute arises from the non-renewal of her fixed term contract and specifically that the respondent created a reasonable expectation that her contract would be renewed on a definite basis (that she would receive a further contract).
15. To succeed in such a claim, the applicant bears the onus to show that she was dismissed in terms of section 186 (1) (b) (i) of the LRA. The applicant bears the onus to show that she “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 favourable terms, or did not renew it”. The applicant confirmed that this section of the LRA was applicable to her claim.
16. The applicant conceded that she was aware that her employment was subject to a contractual basis. When she commenced employment, she conceded that she signed a fixed term contract. She conceded that she completed an application form each term and she conceded that she regularly enquired from the principal about the status of her employment. It was undisputed that the principal had to motivate for her reappointment on a quarterly basis. An example of such a motivation forms part of the record. In the motivation it reflects that new entrants were not available to fill the post she occupied. In other words, she knew that her appointment as an educator at De Villiers Primary School was not permanent or indefinite. She conceded that she knew that her position would be advertised at the end of 2018 and there was no dispute that she completed an application for the post. She was aware that she was participating in a recruitment process and competing with other candidates for the position that she held for a number of years. It was her evidence that she expected to be employed at least until August 2019. The crucial question is whether the respondent created an expectation that she would receive a further contract or contracts and that such an expectation was objectively reasonable or whether she would in fact, be employed until August 2019. There is nothing in the evidence to indicate that the respondent in any way or manner created the impression that the applicant would be employed beyond her contractual basis. The fact that the applicant’s fixed term contract was automatically renewed numerous occasions did not in any way prejudice the applicant. Although this is by no means an ideal situation, there was clearly some uncertainty about the applicant’s status. If there was no uncertainty, there would have been no reason to query her status, which she did on a regular basis. The employment of contract educators in the education sector is a norm. The applicant would have reasonably known that the terms and conditions of her employment aligned with that of a contractual arrangement.
17. In any event, the applicant’s case is essentially that the respondent raised her hopes of further employment by making certain assurances (the principal and members of the governing body made these assurances) and the fact that she was not prevented from making personal investments in the school such as painting the classroom and starting a chest club (using her own personal finances). Sampson (the principal) denied giving the applicant any assurances regarding her ongoing employment. I find his evidence to be credible and, in any event, all recruitment must be sanctioned by the WCED. Even if I were to accept the applicant’s evidence that the principal reassured her that her position was safe until such time as her position was advertised, this does not materially assist the applicant’s claim. It does not promise or guarantee indefinite renewals. It does not mean that her position will not be advertised. It means that when it is advertised, her position is open to a competitive process. This is exactly what happened. The applicant participated in the competitive process and therefore she must have known there were no guarantees and she must have known that the outcome was not pre-determined. In fact, it was undisputed that the position was advertised as a contract position. So even if she had been successful, her position would have been no more favourable, other than for maybe one more term. It emerged from the evidence that the respondent, the WCED, has been encouraging schools to employ new entrants to the education system. Regardless whether the school governing body was in favour of this or not, the governing body must have been placed under some pressure to follow this guideline. The respondent’s evidence that it had a limited response from new entrants in the past, but a good response from new entrants in March 2019, was not disputed. The respondent’s evidence that the applicant’s post was filled by a new entrant in March 2019, was not disputed. In fact, all the contact posts were filled by new entrants. I find it highly unlikely that the members of the school governing body were not aware about the requirement to employ new entrants. This must have been discussed at meetings prior to March 2019. As neither party called any member of the governing body to testify, I cannot second guess what their testimony would have been. Finally, it was not disputed that the applicant was aware that her position would be advertised at the end of 2018. For whatever reason, the advertisement was delayed and only placed in March 2019. However, it was undisputed that the applicant was requested to return to the school at the beginning of the year for a further term. I have therefore concluded that whatever expectation, she may have had (if any), that expectation would have been squashed when she was told that she would remain at the school for another term, after which the advertisement would be placed. I do not find it material whether the advertisement was placed in the bulletin or the local newspaper. The applicant was still required to compete for her post, regardless whether her post was advertised on a permanent or contract basis.
18. While the applicant was clearly hopeful that her contract would be renewed (and disappointed that it was not), there was insufficient evidence that the respondent created any reasonable expectation that the applicant would be employed beyond the terms of her contractual position. The applicant may have held an expectation, but the expectation was not reasonable when weighing up all the circumstances. There were no guarantees or promises. It is trite that the notion of reasonable expectation suggests an objective test. It is generally held that the referring party must prove the existence of facts that would lead a reasonable person to anticipate renewal. There is nothing in the documentation, intention of the parties or the parties conduct to show that the applicant could have reasonably expected her contract to be renewed after the last contractual period. The fact that the applicant was not prevented or discouraged from painting her classroom or starting a chess club is not a determining factor. It was her own initiative; she was not asked to do it. I cannot see how the principal could have discouraged her, given that she was in the process of competing for her job and the outcome could not (at that stage) have been predetermined. Finally, I have not found any irregular or ulterior motive from the respondent or the school principal to deliberately get rid of the applicant for any reason. On an objective basis, the applicant has not proved the existence of facts that would lead a reasonable person to expect employment beyond the terms of the contractual period.
19. In view of my finding above, the applicant has failed to discharge the onus to show that she held a reasonable expectation of indefinite or definite employment and therefore has failed to discharge the onus to show that she was dismissed. Her employment was terminated as a consequence of fixed term arrangement reaching its expiry period and accordingly the claim of an unfair dismissal cannot be sustained.
20. The applicant has failed to discharge the onus to show that she was dismissed and therefore the claim of an unfair dismissal cannot be sustained.
for the ELRC
PSES 105-19/20 WC
23 May 2016