Case Number: PSES 949-19/20GP
Province: Eastern Cape
Applicant: Sibiya Thembekile Precious and 1 other
Respondent: Western Technical Vocational Education and Training College, Randfontein Campus.
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 15 October 2020
Arbitrator: Thomas Murimisi Mahasha
Case No: PSES 949-19/20GP
Applicants: Sibiya and 1 other
Respondent: Western TVET College
Issue: Termination of a fixed term contract, with or without a notice
Date of the hearing: 22 September 2020
Form of the hearing: On line.
Date of the award: 15 October 2020
Arbitrator : Thomas Murimisi Mahasha
Applicants : Sibiya Thembekile Precious and 1 other
Respondent: Western Technical Vocational Education and Training College, Randfontein Campus.
Union/Applicant’s representative: Sipho Mphakathi from Mphakathi Sipho Attorneys.
Respondent’s representative: Doctor Phaka
DETAILS OF THE HEARING AND REPRESENTATION.
1) The Applicants referred a dispute in terms of section 186 (2) (c) of the Labour Relations Act, herein referred to as the “LRA”. Upon enquiry, it was evident that the applicants’ dispute was in terms of section 186 (1)(b)(i) - (ii) 0f the LRA.
2) The matter was set down as an on line arbitration process on 22 September 2020.
3) The applicant,Jeniffer Salome Tebogo Mochongoane was in attendance and represented by Sipho Mphakathi from Mphakathi Sipho Attorneys. The applicant’s representative indicated that Sibiya Thembekile Precious had withdrawn the dispute.
4) The respondent,Western Technical Vocational Education and Training College, was also in attendance, and represented by Doctor Phaka.
5) The proceedings were digitally recorded.
ISSUES TO BE DECIDED.
6) The issues to be decided are whether the applicant had reasonable expectation of the renewal of her fixed term contract of employment, or to be retained in employment on an indefinite basis; and if so, whether non-renewal of the fixed term contract constituted an unfair dismissal.
BACKGROUND TO THE DISPUTE.
7) The Applicant declared a dispute in terms of section 186(2 (c) of the Labour Relations Act, herein referred to as the “LRA”. When determining the real dispute, it because clear that the dispute was incorrectly categorized. It should have been referred in terms of section 186(1)(b) of the LRA.
8) The applicant was appointed by the respondent as a lecturer on a series of fixed term contracts of employment since 2017.The applicant’s contract of employment terminated on 14 June 2019. The applicant was furnished with a notice of termination of the fixed term contract on 22 May 2019.
9) At the time of her dismissal, the applicant was earning a monthly salary of R20 000.00. Every time the fixed term contract was nearing its end, it was renewed by the respondent.
10) The respondent exchanged one set of bundle of documents with 74 pages.
11) The applicant exchanged four sets of bundles, i.e Collective Agreement 2 of 2013, Organogram, Letter addressed to the applicant’s representative and a schedule of lecturers.
12) The Applicant sought reinstatement.
SURVEY OF EVIDENCE AND ARGUMENT.
13) Jeniffer Salome Tebogo Mochongoane testified that she worked for the respondent as an administration clerk for a short period in 2015. During the period, 30 June 2016 to 30 June 2017, she worked as a part time lecturer. As a part time lecturer, she would offer night classes. She also worked as a full time lecturer, meaning that she would work five days a week for the whole month. Thereafter, the fixed term contract of employment was renewed for the period July 2017 to 30 June 2018 as shown on page 57 of the respondent’s bundle. The fixed term contract was renewed for the period 6 February 2018 to 22 June 2018. The contract was extended to December 2018. At times she would be invited for interviews when the fixed term contract was to be extended. In January 2019, she was invited for interviews, and was successful. Every time the fixed term contract was renewed, she was just called by the Human Resources Manager asking her to report for duty. The fixed term contract of employment was again renewed for the period February 2019 to June 2019.
14) She had a reasonable expectation that the respondent would appoint her on a permanent basis. Her expectation was raised because the respondent made it a practice that full time and part time lecturers would be appointed on permanent basis. Ralegogo and Motabeng who came after her were appointed on permanent basis.
15) In 2019 posts for permanent lecturers were advertised with an added requirement that candidates should have a (PEC) teachers diploma. She was not even shortlisted because it was alleged she did not have a teachers diploma.
16) In terms of the schedule of lecturers which she served as her bundle, she was identified as a post level 1 lecturer appointed on a permanent basis. In terms of the document, her name and that of Ralekgokgo were shaded as permanent lecturers. However, only Ralekgokgo was appointed on a permanent basis.The document raised an expectation that she should be appointed on a permanent basis.
17) After June 2019, she was called in a meeting in Doctor Phaka’s office. In that meeting, she met her colleaques, Ms Molefe and Mr Moila. They were called one by one in the principal’s office. She was the last one to be called. The principal told her that her fixed term contract of employment could not be renewed because she had declared a dispute. He further told her that Moropa would be appointed because she promised to withdraw the dispute. She also wrote a letter withdrawing the dispute, but was not appointed. She then decided to re-refer the dispute. She could not understand why Moropa, would be appointed because he was Human Resources lecturer.
18) Sibiya Thembekile Precious was also appointed because she withdrew the dispute. It does not need a genius to realize that she was victimized.
19) She does not know if the other candidates met the requirements of the advertised post.
20) When cross examined, she testified that she was not forced to sign the fixed term contract on page 57 of the respondent’s bundle. She read in to record that in terms of the contract, she had no expectation for permanent employment. She also read into record that she understood the contents of the fixed term contract.
21) She also read into record the provisions of section 57 of the Continuing Education Act 16 of 2006 found on page 26 of the respondent’s bundle which gives the executive authority, powers not to appoint anyone in contravention of regulations 65 and 67 of Public Service Regulations. She agreed that she was not the only one teaching the subject she was teaching and that every trimester, TVET Colleges do enrol new students. She could not confirm if the number of enrolled learners differed in each trimester because she did not have the statistics. Although in TVET Colleges education is not compulsory, there are always learners enrolling for day and night classes.
22) She does not know if she was appointed by the Council additional to the staff. What she knows is that she was appointed by the College for over two years. She disagreed that a decision not to appoint her was for reasons relating to availability of funds because it that was the case, her colleagues could not have been appointed. She was told by Doctor Phaka and Mr Mashele that she could not be appointed because she had declared a dispute. She maintained that the organogram, though not signed was an official document. She wrote a letter to the principal requesting to be appointed. She was surprised about the contents of the letter from the principal refusing to deal with her complaint considering that Moropa was appointed after withdrawing the dispute. She agreed that Moropa, Sibiya and herself withdrew the dispute voluntarily, however, she was surprised that she is the only one not appointed. Although she agreed that part time lecturers are appointed over enrolment, she maintained that that could not be for over three years. During reexamination she testified that she expected to be recalled when the contract was terminated for the last time.
23) Doctor Phaka testified that the applicant was appointed on a fixed term contract of employment which came to an end. The respondent had authority to appoint and not to appoint in terms of section 57(1) of the Continuing Education Act 16 of 2006, and is therefore bound to comply with clause 65 and 67 of the regulation.
24) The applicant signed a fixed term contract acknowledging that she was appointed to teach over- enrolled students. The respondent had to reduce the number of lecturers in proportion to the number of admitted learners. The respondent could only appoint lecturers who met the requirements of the advertised post. The applicant did not have PEC. In terms of clause 1.1 of ELRC Resolution 4 of 2018, lecturers can only be appointed by the College Council into a post which is vacant and funded. The Council could not appoint the applicant because it had no funds due to low enrolment.
25) The respondent had no budget to appoint the applicant. The relief sought is impossible.
26) Under cross examination, he agreed that it was not stated anywhere in the contract that appointment of the applicant was on the basis of over enrolment.He testified that it was an error which was corrected in subsequent contracts. Currently there are lecturers appointed on part time and full time basis who were allocated students. He agreed that although in January the College was faced with an over supply of students, it managed to deal with the situation.
27) He denied that the organogram submitted by the applicant is an official document because it was not signed nor submitted by the respondent as evidence. Although not all documents must be signed, all those having financial implications must be signed. He cannot confirm nor deny the contents of the organogram because it was not authorized by him. When asked about the letter head on the organogram he refused to comment on the basis that he was not the author thereof.
28) The PEC ( Professional Education Certificate) was a requirement in the advertised posts because of ELRC Resolution 4 of 2008. He is not sure if Manopole, who was appointed on a permanent basis, had a PEC. He agreed that even though Tlamelo had no PEC, she was appointed on a permanent basis in a position that deals with wellness of the learners. Tlamelo was not appointed as a lecturer. He could not comment on whether Tlamelo was appointed as a part time lecturer because according to his knowledge, the hearing is not meant to enquire about every one in the college. A decision to appoint or not to appoint was informed by the volume of work.
ANALYSIS OF ARGUMENTS AND FINDINGS.
29) Considering that Sibiya Thembekile Precious had withdrawn the dispute, the title “applicant”, will in this award,be made with reference to Jeniffer Salome Tebogo Mochongoane. The respondent’s evidence exonerated Department of Higher Education and Training on the basis that the applicant was appointed on a fixed term contract by the College Council. Western TVET College is the sole respondent for purposes of this award.
30) In terms of section 186(1)(b) “dismissal means that an employee employed in terms of a fixed term contract of employment reasonably expected the employer-
(I) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(II) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee;…..”.
31) The onus was on the applicant to prove that she had a reasonable expectation of renewal or to be retained indefinitely. Ordinarily, there can be no dismissal when a fixed term contract of employment automatically terminates by effluxion of time. However, there can be a dismissal if the employee proves that he or she had a reasonable expectation that the contract would be renewed, but was not renewed. The applicant’s case is that she reasonably expected the respondent to renew the fixed term contract of employment on the same or similar terms or to retain her in employment on an indefinite basis. In the case of University of Cape Town v Thomas auf der Heyde (2001) 12 BLLR 1316(LAC) the court held that “the test for reasonable expectation was for two factors; the first factor is whether the employee expected the contract to be renewed, and the second factor is whether the expectation was reasonable”. In my view, the applicant established that she expected the contract to be renewed because it had been renewed since 2017.
32) The applicant had the onus to prove that the expectation was reasonable. Whether the applicant’s expectation was objectively reasonable must be assessed in the light of factors mentioned in Dierks v University of South Africa. These factors are: the evaluation of all the surrounding circumstances, the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer, or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose of or reason for concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice, and the nature of the employer’s business.
33) It was the applicant’s unchallenged testimony that it was a practice that part time and full time lecturers would be absorbed into permanent positions. The applicant made reference to Ralegogo and Motabeng who were absorbed into permanent positions. The respondent could not provide reasons why the applicant could not be absorbed without following the recruitment processes. I agree with the applicant that the respondent acted inconsistently when it failed to absorb her into a permanent position or at least renew the contract of employment.
34) I do not agree with the respondent that the reason why the applicant could not be shortlisted was that she did not meet the requirements of the post. The applicant was not the only one who was not appointed and consequently, declared a dispute; or complained about the respondent’s failure to renew fixed term contracts or to retain them indefinitely. The applicant led uncontested testimony that Sibiya Precious and Moropa were appointed in exchange of them withdrawing their disputes. The fact that Sibiya declared a dispute is a clear indication that she was not happy about the respondent’s decision not to appoint her on a permanent basis after the posts were advertised . It was not the respondent’s evidence that Sibiya was appointed because she was successful during the interviews. I am convinced that Sibiya and Moropa were appointed on a permanent basis because they withdrew disputes.
35) The applicant also led unchallenged evidence that the post which she was occupied was still in existence at the time the respondent failed to renew her fixed term contract. I was not convinced about the purpose of or reason for concluding a series of fixed term contracts. The respondent mentioned over-enrolment to justify fixed term contracts. Surely, if the college was experiencing over-enrolment for three consecutive years, that should have been enough a reason to consider appointing the applicant on a permanent basis. Availability or lack of agreements and/or undertakings by the respondent, cannot specifically be relied upon to exclude reasonable expectation for renewal of a fixed term contract. It is common cause that every time the fixed term contract came to an end, the applicant was issued with a notice of termination of service. The fact that the applicant was issued with a notice of termination during May 2019, is therefore, not a factor that should, objectively, exclude the applicant’s reasonable expectation.
36) I agree with the respondent that the wording of the fixed term of contract of employment itself was clear that parties thereto did not envisage renewable contracts.It is however also common cause that they were renewed. It is also true that in terms of clause 2.3 of the contract of employment found on page 57 of the respondent’s bundle,renewal of a fixed term contract was envisaged not to create any expectation of permanent employment. The applicant knew that her contract of employment was for a fixed term period and that there was no expectation of permanent employment. It is my considered view that such clauses should not be interpreted to mean that employees who sign fixed term contracts with such clauses may not claim reasonable expectation as envisaged by section 186(2) (c). If that was the case section 186(2)( c) would be superfluous.
37) I am not persuaded by the respondent’s argument that the applicant could not be appointed on a part time or full time basis because the Council had no funds due to low learners enrolment. I do not agree that the Council did not have funds to finance part time and full time lecturing. The respondent could not give an explanation as to why Moropa, who was appointed on a permanent basis, was also offered a job on a full time basis if lack of funds was an issue. It was not clear to me why the applicant could not be appointed in that position and teach students on a full time basis. In his own testimony, Doctor Phaka admitted during cross examination that currently, there are lecturers appointed on a part time and full time bases. He however, failed to justify why the applicant could not be appointed or at least state that she was considered for such appointments. In my view, the respondent’s aim was to get rid of the applicant.
38) My finding is that the applicant succeeded in proving that she had reasonable expectation that the fixed term contract would be renewed, and that she was therefore, dismissed. However, the last fixed term contract that the applicant was engaged in was for a five months period. She however failed to discharge the onus of proving that she had reasonable expectation for permanent appointment. In terms of section 192 (2) the employer must, if the existence of the dismissal is established, prove that the dismissal was fair.
39) The respondent’s argument that the applicant could not just be absorbed into a permanent position without complying with clauses 65 and 67 of the Public Service Regulations which requires a prescribed process for appointments or any conversion of temporary status to a permanent status is without merit.
40) .The argument by the respondent representative that the respondent was bound to apply clauses 65 and 67 of the Public Service Regulations is therefore, without legal bases. The provisions of section 186 trumps those of the Public Service Act where employees rely on reasonable expectation of permanent employment or renewal of a fixed term contract. I do not agree with the respondent that the reason why the applicant could not be retained in her post was because she did not meet the requirements.
41) An explanation was not given why Sibiya and Moropa were appointed on a permanent basis. What became obvious was that the two were only appointed after they withdrew their disputes. However, it was not the applicant’s case that Sibiya and Moropa did not meet the requirements to be appointed on a permanent basis; nor that both Sibiya and Moropa did not have a matric certificate.
42) I find the applicant’s dismissal to be procedurally and substantively unfair.
It was not the respondent’s evidence that the circumstances surrounding the dismissal are such that continued employment relationship would be intolerable. It is therefore my finding that the appropriate remedy would be to retain the applicant in a fixed term contract of employment on the same or similar terms of employment that existed before the date of her dismissal.
43) The respondent, Western Technical Vocational Education and Training College is ordered to reinstate the applicant, Jeniffer Salome Tebogo Mochongoane in a five months fixed term contract of employment on the same or similar terms of employment that existed from the date of her dismissal.
44) The applicant, Jeniffer Salome Tebogo Mochongoane is ordered to report for work at Western Technical Vocational Education and Training College on 25 October 2020 at 08:00.