ELRC890-19/20WC
ELRC890-19/20WC
Award Date:
23 October 2020
Case Number: ELRC890-19/20WC
Province: Western Cape
Applicant: Mvuyisi Ngcelwane
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Virtually
Award Date: 23 October 2020
Arbitrator: A C E Reynolds
Panelist : A C E Reynolds
Case Number : ELRC890-19/20WC
Date of Award : 23 October 2020
In the ARBITRATION between:
Mvuyisi Ngcelwane
(Union/Applicant)
and
Department of Education – Western Cape
(Respondent)
Union/Applicant’s representative : Mr X Zigebe (NAPTOSA)
Union/Applicant’s address : 39166 Foni Street
Harare
KHAYELITSHA 7784
Union/Applicant’s Telephone No’s : (021) 3610164 / 0795703229 / 0719721208
Union/Applicant’s E-mail : claranceekhaya@yahoo.com
xolilez@naptosa.org.za
Respondent’s representative : Mr K Mbobo
Respondent’s address : Private Bag X9114
CAPE TOWN
8000
Respondent’s Telephone No’s : (021) 4672846 / 0721732725
Respondent’s E-mail : councilsWC@westerncape.gov.za
kaizer.mbobo@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal referred in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995 as amended (the LRA) relating to an expectation to have a fixed- term contract renewed or to be employed on an indefinite basis. The arbitration was completed by way of two Zoom virtual meetings conducted on 21 September 2020 and 13 October 2020.
2. The applicant, Mr M Gcelwane, was represented by Mr X Zigebe of NAPTOSA and the respondent, Department of Education – Western Cape (WCED), by Mr K Mbobo, Labour Relations Officer.
3. The proceedings were conducted in English with digital and Zoom recordings made.
4. An explanation of the arbitration proceedings was provided for the benefit of the applicant.
5. A pre-arbitration minute dated 24 February 2020 was on record signed by the parties and is referred to with respect to the facts which are common cause and in dispute.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Mr M Gcelwane, had a reasonable expectation that his fixed-term contract with the respondent would be renewed in 2020 or that he would be offered permanent employment by way of the respondent’s process converting temporary educators to permanent employment and whether an unfair dismissal had applied when the respondent had failed to do either. The onus of proof was on the applicant in this matter, with the relief sought of reinstatement with retrospective back pay.
BACKGROUND TO THE DISPUTE
The following facts were common cause as obtained from the pre-arbitration minute, with certain additions included at the arbitration proceedings:
7. The applicant was employed at Luleka Primary School in Kayelitsha, Cape Town, in the capacity of Post Level 1 Educator teaching English, Social Sciences and Life Orientation on fixed-term contracts since 1 January 2017. The initial fixed-term contract was for six months and thereafter his contract was consistently renewed every three months until 31 December 2019 when his contract was terminated by the respondent. His Persal number was 21822727 and his gross earnings were R302334.00 per annum at the time that his last contract was terminated.
8. During July 2019 application was made for the applicant’s position to be converted to a permanent post, to which no response was received and his contract continued to be renewed until 31 December 2019. When he reported for duty at the beginning of the first term for 2020, he was informed that his contract had been terminated and was not renewed again.
9. The conversion process for the applicant required Primary School Intermediate Phase qualifications whilst the applicant possessed Senior Phase qualifications.
The following facts were in dispute as obtained from the pre-arbitration minute and amplified at the arbitration proceedings:
10. Whether no reasons were provided to the applicant in respect of the respondent’s failure to convert his position to a permanent position.
11. Whether the applicant qualified for conversion.
12. Whether no reasons were furnished for the non-renewal of the applicant’s contract pending the conversion.
13. Whether the applicant had a reasonable expectation that his contract would be renewed or that he would be employed indefinitely as a result of the conversion process.
14. Whether a dismissal had applied in the circumstances.
SURVEY OF EVIDENCE AND ARGUMENT
15. The applicant, Mr M Ngcelwane, testified under oath for himself. Mr G Mtoba, Principal of Luleka Primary School and Mr H Wyngaard, Deputy Director Recruitment and Selection, testified under oath for the respondent.
16. Documents were presented and exchanged by both parties and admitted as evidence, except where indicated otherwise.
17. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE APPLICANT’S EVIDENCE
18. The applicant’s case was that at the end of each year since 2017 he was notified that his contract will be terminated, with his contract subsequently renewed the following year, being 2018 and 2019. During 2019 the applicant was advised by the Principal that he had been teaching in a temporary capacity at the school for 24 months whereas the collective agreement stated that after three months he could qualify for conversion to a permanent position. He was also informed by the Principal that it was the intention of the school to apply for his conversion to a permanent position. The applicant duly completed the required forms, which he submitted to the Principal and were also signed off by the Chairperson of the School Governing Body (SGB) and the District Director for Metro East. While the applicant was waiting for his conversion during September 2019, he did not receive his salary payment, whilst all the other contract employees received their salaries. He was also required to do the security clearance check during this period. While he was waiting for the respondent to affect the conversion, he on 21 November 2019 received the normal notice that his services will be terminated at the end of the year. In January 2020, as he had done each year, he reported for duty on 13 January 2020 when the Principal informed him his services were no longer needed and that somebody else had been appointed in his post. The applicant had occupied a vacant substantive post for three years and was eligible to be placed in a post since the respondent had renewed his contract consistently. The applicant was aggrieved since no reason was provided to him why his contract was not renewed on that occasion. This compelled the applicant to refer a dispute relating to the non-renewal of a fixed-term contract and that a legitimate expection had been created during the three years with the same practice having been followed every year, followed by the instruction that he apply for conversion to a permanent post. With reference to the conversion process, the respondent had cited that the applicant’s qualifications were not compatible with the post that he had occupied, and they questioned why his qualifications were compatible when he was working on contract and not in a permanent post. Since the applicant was out of employment since January 2020 and was ready to resume duties should a suitable post become available, the relief sought was reinstatement and compensation for the embarrassment and humiliation for not being provided with reasons for the non-renewal of his contract.
19. Mr M Ngcelwane, the applicant, testified as follows under oath in his evidence in chief: Before he joined Luleka Primary School he taught at Primary and High Schools in Gauteng. He taught grades 5, 6 and 7 at Lukela Primary School with subjects of English, Social Science and Life Orientation. He explained the fixed-term contracts which he was appointed on and how they were renewed. The practice of the school before the end of each year was that in November, they received a communication that their contracts will be terminated on 31 December. When they returned in January of the next year, they found that their contracts had been renewed and the information that the contract was terminated was just a formality. There was no reason presented when he received the notification on 21 November 2019 that his contract was to be terminated. He received the same letter in 2017, also with no reason provided why his contract was to terminate. He occupied a Post Level 1 substantive vacant post from 2017 to 2019 and was not substituting for another educator. He was shocked when he reported at the school in January 2020 and was told by the Principal that his post was occupied and he must return home. He asked the Principal the same day what happened to his application for conversion and was informed by the Principal that he did not know and was still waiting for the outcome. He afterwards on the same day contacted HR to enquire about the conversion and was informed by HR that the Principal had told them to withhold the process and that he should ask the Principal for the reason. Reference was made to the verification certificate for permanent appointment as a Post Level 1 Educator (the conversion application) which he confirmed was signed by the Principal, the Chairperson of the SGB and District Director on 31 July 2019. He did not think the Principal had the authority to withdraw the application and conversion process since he had signed it. The Principal had never at any stage informed him of his intention to withdraw the process. In October 2019 when the other contract teachers were renewing their contracts, he was told by the Principal that there was no need to complete his contract renewal forms due to the conversion application already having been submitted and processed. The only reason that he could think of why the Principal decided to intercept the process was that he wanted a bribe from him (the applicant) as the Principal had asked him for a bribe before by referring to it as a “colddrink”. He had a good relationship with the Principal for all the years, with no problems between them. There were several other teachers on contract and the Principal kept them all, including himself, on contract for a long time. Some teachers converted and there was a rumour that they were paying the Principal, with mainly female teachers converted. He believed that he was eligible to be converted since he met all the requirements for conversion in terms of Clause 4.2 relating to the conversion of temporary educators to permanent posts of Collective Agreement 4 of 2018 dated 25 September 2018. Reference was made to his certifications and qualifications as contained in the applicant’s bundle of documents, which is not repeated here. He had a reasonable expectation that he would be converted into a permanent post since he had been with the respondent for three years, had met all the requirements, was experienced and performed well, with no criminal record and it was his Principal who had told him that they would be converting him and then intercepted the process after he (the Principal) had signed the conversion application himself.
20. Mr Ngcelwane testified as follows under cross-examination: He confirmed his teaching experience at the school, in that he had only taught grade 7, which was Senior Phase, in 2017 and taught grades 5 and 6, which were Intermediate Phase, in 2018 and 2019 in the same subjects of English, Social Sciences and Life Orientation. He did not ask his Principal why he was not teaching grade 7 in 2018 and 2019 because he knew there were teachers at grade 7 then and he was given grades 5 and 6 to teach. He knew about the conversion process since 2017 but did not ask the Principal to be converted already in 2017 because he did not want to confront the Principal as he knew how the Principal operated and waited for the Principal to initiate the process since he could have terminated his contract. He had reported to the Union Chairperson at the school his fears about being victimised and having his contract terminated and the failure of the Principal to convert him, but did not lodge a grievance after he spoke to the Union official. The expectation was created for his contract to be extended since he was informed that his temporary employment status was being converted and that he had to go for fingerprinting, which is when the expectation was raised. This was sufficient for him for such an expectation to be created when he was nominated for conversion. He understood from the wording of the verification certificate that permanent appointment is not automatic since specific criteria need to be complied with. He felt that the expectation was that he must be converted if the criteria are met. He agreed that the documents referred to stated the specific criteria that must be met for conversion. He agreed that his contracts had end and start dates and that he had received notification that his last contract was to expire on 31 December 2019 and that he reported for duty on 13 January 2020. The Principal had told him to report for duty 13 January 2020 and he did not volunteer to report for duty. He reported for duty because by 31 July 2019 he was told that he was converted into a permanent post, hence he saw no reason to not report for duty as he knew that he was no longer temporary as the Principal had said that he must not complete the contract renewal forms since they were processing the conversion. He had signed the contract renewal form for October to December since the Principal had told him that he must apply for the renewal otherwise he will not be paid. He had understood that he was converted since the Principal, SGB Chairperson and the District Director had signed the conversion form and the Principal had told him that they were waiting for the conversion process when he did not receive his salary. The expectation had been created that he would be converted since no one told him that he would not be converted for certain reasons and it was unfair not to inform him what was happening. He conceded that his qualifications did not allow him to teach grades 5 and 6 but grade 7 Senior Phase. He taught grades 5 and 6 as allocated by Management and the Principal, but was not in a position to refuse this, since it was their decision, not his, and he could not be blamed for that. He was not the only temporary teacher whose contract was terminated end 2019. There were many of them and some went back in January 2020 and are still at the school. He was not the only teacher who applied for conversion in July 2019. There were others who also applied and they were converted, with only female teachers converted at the time. He could not recall the name of the lady in HR he went to see personally on that same day in January 2020 (when he reported for duty and was informed that his contract was terminated) to enquire about his conversion. He did not think the Principal had acted in good faith when he told him in October 2019 not to sign the contract of renewal because of the conversion process application since the Principal must have been ill informed about the conversion process and could first have checked with HR. He did not report in 2019 that the Principal wanted to bribe him but only reported it this year, with no proof that he could produce in the form of for example SMS communication.
21. Mr Ngcelwane testified as follows under re-examination: Management and the HOD allocated grades and subjects to be taught at the school. He did not have a say, particularly as a temporary educator, and it was unreasonable for Management to instruct him to teach a grade he was not supposed to teach. He should have been placed with a grade compatible with his qualifications, which has now disadvantaged him. It was not reasonable to be informed that his contract was to terminate as a reminder, without a reason provided. With respect to the conversion application he thought the delegated authority to decide on a conversion is the HOD and he believed it did reach the delegated authority. He did not sign the form for the conversion. He was provided the signed form to e-mail to the respondent. The mere completion of the form on 31 July 2019 created the expectation since he was told that he is being converted into a permanent position by the school. He had met all the requirements and criteria for conversion since all the questions on the form were signed off as yes and he had been in the post for three years. Of about seven male teachers since he arrived in 2017 not a single male teacher was converted, only female teachers. No information was ever given to him at the school on why his conversion was intercepted by the Principal. He had reported the issue of kickbacks regarding the Principal in 2020 and had not received a response yet to the respondent’s investigations, which was a separate issue and not part of this dispute.
THE RESPONDENT’S EVIDENCE
22. The respondent’s case was that they did not dismiss the applicant as cited by him. The applicant had fixed-term contracts with start and end dates, which he was aware of. There was an intention to convert the applicant to permanent status since he was employed on a temporary basis for more than three months and he was informed that he could apply for conversion. The School Principal only recommends conversion and the HOD decides on conversion if the conditions are met such as appropriate qualifications and a lack of a criminal record. The applicant’s qualifications were not aligned with the Phase which he was teaching. The applicant was also informed timeously of the respondent’s intention not to renew his contract the following year and that his contract would lapse at the end of December 2019. The applicant could not be appointed nor converted due his qualifications. Somebody else was appointed in the position that he had occupied at the school, with no vacancy left. The applicant could apply to be appointed in future vacant positions, subject to a selection process and if his qualifications are aligned with the grades he would have to teach. The applicant was not asked to return to the school in January 2020, with no correspondence received that he was to return, whereby he created the expectation on his own.
23. Mr G Mtoba, School Principal of Luleka Primary School, testified as follows under oath in his evidence in chief: He explained the Principal’s, SGB’s and the District Director’s role when an educator applies for conversion from temporary to permanent employment, which was to make a recommendation to the HOD for approval. By applying for conversion and submitting the form it did not mean that one was automatically appointed as permanent, which depended on the HOD. The applicant knew that by the form being completed that he was not appointed yet since he was an experienced educator and knew that it depended on the HOD. The applicant never taught grade 7 at the school. The applicant’s last contract terminated 31 December 2019 and he was informed of this by letter in November 2019 timeously to him and other temporary educators. As the person who initiated the conversion process, he discovered that the applicant had only submitted High School qualifications when he said he had Primary School qualifications. He did this in good faith when the applicant said he had left his Primary School certificates in KwaZulu-Natal due to victimisation and had filled in the form on the assumption that he had qualifications for Primary School based on his performance. The respondent encouraged them to appoint the right people in the right place with the right qualifications. It was false that he did not renew the applicant’s contract because he wanted a kickback from the applicant. As an experienced educator the applicant should have reported this to HR since it was corruption to want a bribe. The applicant would not have received salary without signing the contract renewal form in October 2019 and he would have suggested that he not renew the contract because they were waiting for the conversion process to kick in. In his view the applicant’s qualifications were relevant in High School, not in Primary School. He did not only convert female educators, with the HOD’s telling them to convert people who are performing. It would be sexist in terms of the respondent’s policies and there could be other reasons not to convert male educators.
24. Mr Mtoba testified as follows under cross-examination: When he qualified, he was qualified to teach in High School but in those days, one could also teach in Primary School. He confirmed his own, the Chairperson of the SGB’s and District Director’s signatures on the applicant’s conversion application form. He did not receive the applicant’s qualifications on appointment, who told him that he would still bring his qualifications since he ran from KZN due to the conflict there. He did not approve appointments into posts. He assumed that the applicant was qualified for Primary School teaching when he was appointed on the basis that he said he would bring the qualifications. The applicant was kept on and his contracts renewed without the qualifications for three years since the applicant promised he would bring the qualifications and he hoped the applicant would be honest and do that. He may have been mistaken that the applicant taught in KZN, but it could have been in another province such as North West. He signed the conversion nomination form for the applicant confirming that he had seen all the documents because he thought the applicant was honest, who had never told him that he did not have the Primary School qualifications. He had initiated the conversion process in good faith trusting that the applicant had the qualifications. The Principal, and not the employee, initiates the process. Reference was made to the grid completed on the conversion application document. He did not know until the meeting with his HOD’s that the applicant was not performing well and according to himself he thought the applicant was performing well. With respect to item 4 relating to qualifications he thought that the applicant had the qualifications and could have e-mailed the qualifications to the respondent so as not to penalise the applicant. After the applicant did not produce the qualifications, he decided to retract the application since the respondent would have regarded him as being dishonest on the form. He was referred to the applicant’s qualifications and certificates in the applicant’s bundle of documents. He was not sure whether he saw those documents when the applicant applied for the post in 2017 since it was a long time ago. He had grade 7 in his school but the applicant never taught grade 7 at the school in 2017 or later. As the Principal he deployed the applicant to teach Grades 5 and 6 as he had no teachers in those grades. He did not waste the applicant’s time and deliberately disadvantaged him by deploying him in grades which did not fit his qualifications. Based on their need analysis they deployed him where he was needed. The applicant had lied about his qualifications, they were not an employment agency and the applicant could have applied for a post in a High School. He attended a meeting in 2019 where they were instructed to employ people in the correct place. The applicant was never forced to stay there and could have applied to other schools. When they received the communication from the respondent the applicant was informed that he was not employed in the right grade. The applicant was not a first-time educator or bursary holder. He did not dispute that the applicant had many qualifications. He had advised the applicant that he did not have these qualifications and must apply to other schools, but was waiting for the applicant to produce the qualifications that he promised. He informed the respondent to retract the applicant’s conversion application and would re-send it when the applicant provided the correct qualifications, otherwise he as the Principal could have been charged for misconduct. He never recruited the applicant, who was on contract. The applicant was not converted in 2017 because he was waiting for the qualifications. He knew the requirements for conversion and gave the applicant time, with nothing against him personally. There were terms that the applicant was not at school during the period from 2017 for contracts which were not renewed, which records the respondent should have. He never demanded money from teachers, which was a serious allegation and could be reported by an experienced teacher as a chargeable offence for misconduct. Nobody had reported to him that such allegations had been brought against him by the applicant. By keeping a person on contract for three years did not create an expectation and the applicant was reminded that he did not have the requirements and that he should apply to the High School being built in Khayelitsha as well as the TVET College. He repeated that he did not waste the applicant’s time by keeping him on contract for three years since the applicant had other options to apply to other schools. The applicant was happy to be on contract as it earns more money. He had never forced the applicant to be on contract.
25. Mr Mtoba testified as follows under re-examination: There was no vacancy at the school for the applicant to be reinstated in, as requested. He had trusted that the applicant had the Primary School qualifications and that he would bring them. He did not promise the applicant that his contract would be extended into 2020. It was only the HOD who decides and approves appointments.
26. Mr H Wyngaard, Deputy Director Recruitment and Selection testified as follows in his evidence in chief: He confirmed his position in the Recruitment and Selection Department of the respondent, with about 30 years’ experience. He explained the role of this Department, which included permanent appointments and conversions, evaluation of qualifications and determination of salaries. He pointed out that there were two ways in which permanent appointments were made, one through advertised posts and the other through conversions from temporary to permanent employment. He explained the conversion process in terms of section 6 of the Employment of Educators Act, of which the purpose was to get more permanent educators appointed quicker after three months. This only applied to entry level posts at Post Level 1 where a substantive vacancy existed and the educator had to be suitably qualified for the post. Reference was made to the relevant circulars in this regard, which are contained in the respondent’s bundle of documents. In order to teach in Foundation Phase and educator must have Foundation Phase qualifications. The applicant’s quallifications did not make him suitable to teach in Foundation Phase and Intermediate Phase since he had High School qualifications. Deviation could be allowed when an educator is employed on contract due to scarcity of teachers, otherwise the educator had to be suitably qualified for the post applied for. The process for applying for conversion was firstly that the SGB and the Principal must decide on a substantive vacancy and confirm this with the respondent (the Department). The initiative to apply for conversion can come from the educator or the Principal. The Principal must also ensure that the educator is suitably qualified for the conversion before the process continues. The rest of the process for conversion from temporary to permanent status was explained, of which the detail is not repeated here. When qualifications are assessed and it is found that the educator is not suitably qualified for the post level, a letter will be drawn up to explain this. The Principal can at some time stop the conversion process and must explain to the educator that he/she is not suitably qualified. They however preferred that the application be sent to the respondent to make the final decision or overturn the Principal’s decision. The delegated authority for the appointment of staff in the Province was explained. In the case of Post Level 1 appointments the Assistant Director Recruitment and Selection at Head Office had the delegated authority to confirm appointments. To be nominated for conversion did not mean that one would automatically be converted, but was only a recommendation with no expectation of permanent employment created. An appointment was only approved until a letter confirming this is received from the Department and ratified by the delegated authority. He agreed with the contents of the NAPTOSA news flash of 2 September 2020, which accurately summarised the conversion process.
27. Mr Wyngaard testified as follows under cross-examination: The purpose of the conversion process was to get as many suitably qualified educators permanent in a short period of time. They must hold relevant and suitable qualifications to teach in the Phase of the post converted in. He did not have the academic transcript for the applicant, but only the evaluation done of his qualifications. He was referred to the applicant’s salary determination and evaluation of qualifications dated 20 February 2020 as contained in the respondent’s bundle of documents. In the applicant’s case the post was for Intermediate Phase grades 4 to 6 and not Senior Phase grades 7 to 9, which the applicant was qualified in. Certain Primary Schools have grade 7 but it is difficult for a Principal to appoint somebody just to teach Senior Phase grade 7. The applicant’s qualifications are ideal to teach grades 10 to 12 at High School. They have contract teachers appointed to teach in wrong Phases, but going forward they will not make the same mistakes as in the past since this can also lead to unfair labour practice challenges. Most of the High School qualified teachers did not want to go to High Schools but preferred Primary Schools. He had not seen the applicant’s conversion application before and would not have converted the person, which was only a recommendation. A Principal had the right to intercept and stop the conversion process if something wrong was found. Even if the Principal had ticked yes at item 4 on the form that the educator is suitably and professionally qualified, he would not have approved the conversion. No reference was made to a particular post or Intermediate Phase on the form. The application was incomplete since the form to say what the educator is going to teach was not there. An educator can be appointed in a contract post without being suitably qualified, but when it comes to conversion for permanent appointment, they must make sure that he/she is suitably qualified, which is when it will be picked up. He commented on the applicant’s certificates and qualifications contained in the applicant’s bundle of documents, observing that these were not Intermediate Phase qualifications. He could not comment whether it was fair or not to accept a person with unsuitable qualifications to teach for three years in a post, but the person had three years to find or apply for a suitable post at High School in grades 7 to 12. Bursaries referred to in the documents were only available for permanent staff for their own continuing development. If you were not permanent but a contract educator and wanted to qualify in Intermediate Phase you would have go out and pay for your own studies. There was no inconsistency and it would be inconsistent if a bursary was provided to a contract employee. The outcome of a conversion application would be provided to the Principal and SGB, with it being their responsibility to communicate it to the educator concerned. If the Principal did not send in the application, he can tell the applicant that he is not going to recommend the conversion, but they would not have approved it based on the qualifications. If the Principal had not informed the applicant that he had intercepted the conversion a grievance can be lodged. A Principal cannot do anything until a grievance has been lodged or arbitration is completed. He agreed that it would be proper to inform somebody that he did not qualify. He was not an expert to comment on whether a reasonable expectation of renewal of a fixed-term contract would be created after successive fixed-term contracts had been renewed for almost three years, save to observe that only if one was suitably qualified and met all the requirements of the post, but not if one was not suitably qualified. He responded to the statement that the LRA stated that a person may not be employed temporarily for more than three months, that a person could not be employed permanently if there were no suitable qualifications. He could not say whether it was fair or unfair to have an unqualified person to teach for about three years, but it depended on the circumstances at the school.
28. Mr Wyngaard testified as follows under re-examination: It was not compulsory for an educator to be subjected to the conversion process after completion of three months on contract, but it was their wish and they must be suitably qualified to be converted permanently.
CLOSING ARGUMENT
29. Verbal closing arguments were presented by the parties. They are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
30. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the applicant, Mr M Gcelwane, had a reasonable expectation that his fixed-term contract with the respondent would be renewed in 2020 or that he would be offered indefinite (permanent) employment by way of the respondent’s process converting temporary educators to permanent employment, and further whether an unfair dismissal had applied when the respondent had failed to do either.
31. The relevant section of the LRA reads as follows at section 186(1)(b):
(1) ‘Dismissal’ means that –
(b) 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;
32. It should be borne in mind that the onus of proof is on the applicant in this matter to prove that a reasonable expectation was created in the above circumstances. The Courts have also guided that this expectation should be based on objective and not only subjective grounds, as articulated in NUM obo Mpaki vs CCMA & Others JR 1983/2014 handed down on 9 September 2016, in which the Court held that apart from the subjective perception there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances, and identified a number of factors which may influence such a finding, such as agreements, undertakings by the employer, custom or practice in regard to renewal, the availability of the post, the purpose or reason for conclusion of the fixed-term contract, inconsistent conduct, failure to give reasonable notice and the nature of the business.
33. The following facts had emerged as either common cause or remained undisputed during these arbitration proceedings:
34. The applicant was employed on a series of fixed-term contracts at Luleka Primary School since 1 January 2017 until 31 December 2019.
35. He received a written notification on 21 November 2017 to remind him that his contract was to end (terminate) on 31 December 2017, which was renewed again in January 2018.
36. He received a similar notice on 21 November 2019 that his contract would be expired (terminated) on 31 December 2019 and then reported for duty again in January 2020 as he had done in previous years, when he was notified by the School Principal that his contract was terminated and had therefore not been renewed.
37. The applicant’s qualifications are aligned to the teaching of Senior Phase subjects which are normally taught at High School.
38. He was employed to teach Intermediate Phase subjects at Luleka Primary School in grades 5 to 6 for the duration of his temporary employment at the school. The applicant had contended that he also taught grade 7 in 2017 at the school, which was not improbable as the evidence was that some Primary Schools also taught at grade 7 level. This was however denied by the School Principal, who testified that the applicant only taught grades 5 to 6 for the full period that he was there.
39. The respondent’s conversion policy as contained in Circular 0006/2019 dated 5 January 2019 stated that a temporary educator could be converted to permanent after being employed in a temporary capacity for a continuous period of three months if all the elibility criteria for conversion were met, which included that the educator should have been employed in an approved substantive vacant entry level Post Level 1 position and was suitably qualified for the Phase which was being taught in. In terms of these criteria the applicant was not eligible for conversion in the post that he had occupied temporarily since he did not possess the suitable qualifications for the Intermediate Phase that he had taught in.
40. The evidence was that due to the needs of schools’, temporary educators were often deployed in posts that they were not qualified for, which practice the respondent wished to stop to achieve consistency and avoid the potential of unfair labour practice disputes arising.
41. The School Principal had testified that the applicant was aware that he needed Primary School qualifications to teach at the level he was employed in, that the applicant had stated to him that he possessed such qualifications and had promised he would provide these to him. He had completed the conversion documents in good faith stating that the applicant had the required qualifications for the post and had retracted the application when the proof of qualifications was not forthcoming. Mr Wyngaard confirmed in his evidence that a Principal had the right to retract or intercept a conversion application before it reached the relevant Department if they found something wrong with it. The version that the applicant had promised to provide his Primary School qualifications to the Principal was not put to the applicant, nor was the Principal’s evidence in this regard adequately challenged, hence the Principal’s evidence in this regard is viewed as the more probable.
42. The conversion application document (verification certificate) stated clearly that conversion was not automatic and that specific eligibility criteria had to be met. The respondent’s evidence supported that the submission of the application was a recommendation for approval by the appropriate delegated authority and not a confirmation of permanent employment, which would be in the form of a written communication to the educator concerned.
43. The applicant was not notified by the School Principal of the reason why his final fixed-term contract was terminated and not renewed.
44. The School Principal did not notify the applicant that his conversion application was intercepted or that he had not met the eligibility criteria for conversion, which he only became aware of when he enquired from Human Resources after he was told by the Principal on 13 January 2020 that his contract was not renewed.
45. In considering the above facts and the evidence presented by the parties, I firstly find that a reasonable expectation had been created, on the balance of probabilities, that the applicant’s fixed-term contract would be renewed again in 2020 based on the practice which had occurred over previous years, as well as the conversion application during July 2019, which in the applicant’s knowledge was still being processed, and of which the status had not been advised to him until he sought clarity in January 2020 from Human Resources.
46. I secondly find that a reasonable expectation had not been created with respect to the prospect of indefinite or permanent employment through the conversion process, which both the evidence of witnesses and the documentary evidence supported was a recommendation and not an assurance that conversion to permanent employment would be granted, as well as that the applicant would have been reasonably aware that he did not qualify for the post in question, with reference to the eligibility requirements for conversion as set out at clause 4 relating to the conversion of temporary educators to permanent educators of Collective Agreement 4 of 2018 titled The Appointment and Conversion of Temporary Educators to Posts on the Educator Establishment.
47. An observation needs to be made that many of the issues that gave rise to this dispute could have been prevented if the applicant had been timeously apprised of reasons for the respondent’s actions such as the termination of his fixed-term contract and that his qualifications were not suited to the Phase that he was teaching in, as well as had been timeously updated on the status of his conversion process by way of clear and pertinent communications, particularly from his School Principal. Of concern too is the length of time that the applicant was retained in temporary employment in a Phase which he was not qualified for.
48. In the circumstances a dismissal is found relating to the non-renewal of a fixed-term contract, which is also deemed to be unfair, and for which the applicant is entitled to relief.
49. It was not disputed that the applicant’s post had been filled and that there was presently no other vacancy at Luleka Primary School, hence it would not be possible to re-instate or re-employ him in another fixed-term contract for the same period of three months on the same terms and conditions as had applied to his previous contract with the same school.
50. It was confirmed that the applicant’s qualifications at hand related to Senior Phase education (unless he could produce the Primary School qualifications that the School Principal had referred to). In line with the respondent’s stated intention to correct past errors of deploying educators in the wrong Phase relevant to their qualifications, reinstatement or re-employment into an Intermediate Phase temporary contract at either the same or another school in the Western Cape would also be inappropriate, unless the applicant can produce qualifications acceptable by the respondent to teach at a Primary School in the Province. I would not be empowered either to order re-employment of the applicant on a new fixed-term contract that matched his qualifications with a High Shool in the Province where a substantive vacancy exists since this would not relate to the expectation of the renewal of the fixed-term contract on which he was previously employed. As testified by the respondent’s witnesses, the applicant was however entitled to apply to a High School of TVET Collge for a post compatible with his qualifications.
51. The applicant party had also requested additional relief of retrospective compensation to account for the period that the applicant has been unemployed and for embarrassment and humiliation suffered as a result of the respondent’s conduct. It is trite that an arbitrator is not empowered to make an award relating to the latter in determining a dismissal dispute such as this, but only to consider reinstatement, re-employment or compensation in respect of the unfairness of the dismissal itself.
52. Since it was found that a dismissal had occurred due to the non-renewal of a fixed-term contract, the normal relief is that an applicant be either appointed on another fixed term-contract on the same terms and conditions which applied to the last contract, or to be compensated for the duration of such contract if re-employment is not possible.
53. Since re-employment is not possible I will in the circumstances consider an award as to compensation of three months for the contract that the applicant had a reasonable expectation would have been renewed from January 2020.
54. In making this award I will take into account the applicant’s confirmed gross remuneration of R302334.00 per annum or R25194.50 per month, which would amount to R75583.50 for the three months’ duration of the fixed-term contract which he could reasonably have expected to have been renewed from January 2020.
AWARD
55. A reasonable expectation had been created that the respondent, Department of Education – Western Cape, would renew the applicant, Mr M Ngcelwane’s, fixed-term contract which expired 31 December 2019, for a further three-month period from January 2020.
56. No reasonable expectation was created that the respondent would convert the applicant to permanent or indefinite employment.
57. The respondent is ordered to pay the applicant compensation in the amount of R75583.50, being three months’ remuneration for the duration of the fixed-term contract which was not renewed, less statutory deductions if applicable, by not later than 30 November 2020 into his bank account.
58. No order is made with respect to costs.
SIGNED AT DE RUST ON THIS 23rd DAY OF OCTOBER 2020.
Panelist
Province: Western Cape
Applicant: Mvuyisi Ngcelwane
Respondent: Department of Education Western Cape
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Virtually
Award Date: 23 October 2020
Arbitrator: A C E Reynolds
Panelist : A C E Reynolds
Case Number : ELRC890-19/20WC
Date of Award : 23 October 2020
In the ARBITRATION between:
Mvuyisi Ngcelwane
(Union/Applicant)
and
Department of Education – Western Cape
(Respondent)
Union/Applicant’s representative : Mr X Zigebe (NAPTOSA)
Union/Applicant’s address : 39166 Foni Street
Harare
KHAYELITSHA 7784
Union/Applicant’s Telephone No’s : (021) 3610164 / 0795703229 / 0719721208
Union/Applicant’s E-mail : claranceekhaya@yahoo.com
xolilez@naptosa.org.za
Respondent’s representative : Mr K Mbobo
Respondent’s address : Private Bag X9114
CAPE TOWN
8000
Respondent’s Telephone No’s : (021) 4672846 / 0721732725
Respondent’s E-mail : councilsWC@westerncape.gov.za
kaizer.mbobo@westerncape.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal referred in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995 as amended (the LRA) relating to an expectation to have a fixed- term contract renewed or to be employed on an indefinite basis. The arbitration was completed by way of two Zoom virtual meetings conducted on 21 September 2020 and 13 October 2020.
2. The applicant, Mr M Gcelwane, was represented by Mr X Zigebe of NAPTOSA and the respondent, Department of Education – Western Cape (WCED), by Mr K Mbobo, Labour Relations Officer.
3. The proceedings were conducted in English with digital and Zoom recordings made.
4. An explanation of the arbitration proceedings was provided for the benefit of the applicant.
5. A pre-arbitration minute dated 24 February 2020 was on record signed by the parties and is referred to with respect to the facts which are common cause and in dispute.
ISSUE TO BE DECIDED
6. The purpose of this arbitration is to determine whether the applicant, Mr M Gcelwane, had a reasonable expectation that his fixed-term contract with the respondent would be renewed in 2020 or that he would be offered permanent employment by way of the respondent’s process converting temporary educators to permanent employment and whether an unfair dismissal had applied when the respondent had failed to do either. The onus of proof was on the applicant in this matter, with the relief sought of reinstatement with retrospective back pay.
BACKGROUND TO THE DISPUTE
The following facts were common cause as obtained from the pre-arbitration minute, with certain additions included at the arbitration proceedings:
7. The applicant was employed at Luleka Primary School in Kayelitsha, Cape Town, in the capacity of Post Level 1 Educator teaching English, Social Sciences and Life Orientation on fixed-term contracts since 1 January 2017. The initial fixed-term contract was for six months and thereafter his contract was consistently renewed every three months until 31 December 2019 when his contract was terminated by the respondent. His Persal number was 21822727 and his gross earnings were R302334.00 per annum at the time that his last contract was terminated.
8. During July 2019 application was made for the applicant’s position to be converted to a permanent post, to which no response was received and his contract continued to be renewed until 31 December 2019. When he reported for duty at the beginning of the first term for 2020, he was informed that his contract had been terminated and was not renewed again.
9. The conversion process for the applicant required Primary School Intermediate Phase qualifications whilst the applicant possessed Senior Phase qualifications.
The following facts were in dispute as obtained from the pre-arbitration minute and amplified at the arbitration proceedings:
10. Whether no reasons were provided to the applicant in respect of the respondent’s failure to convert his position to a permanent position.
11. Whether the applicant qualified for conversion.
12. Whether no reasons were furnished for the non-renewal of the applicant’s contract pending the conversion.
13. Whether the applicant had a reasonable expectation that his contract would be renewed or that he would be employed indefinitely as a result of the conversion process.
14. Whether a dismissal had applied in the circumstances.
SURVEY OF EVIDENCE AND ARGUMENT
15. The applicant, Mr M Ngcelwane, testified under oath for himself. Mr G Mtoba, Principal of Luleka Primary School and Mr H Wyngaard, Deputy Director Recruitment and Selection, testified under oath for the respondent.
16. Documents were presented and exchanged by both parties and admitted as evidence, except where indicated otherwise.
17. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.
THE APPLICANT’S EVIDENCE
18. The applicant’s case was that at the end of each year since 2017 he was notified that his contract will be terminated, with his contract subsequently renewed the following year, being 2018 and 2019. During 2019 the applicant was advised by the Principal that he had been teaching in a temporary capacity at the school for 24 months whereas the collective agreement stated that after three months he could qualify for conversion to a permanent position. He was also informed by the Principal that it was the intention of the school to apply for his conversion to a permanent position. The applicant duly completed the required forms, which he submitted to the Principal and were also signed off by the Chairperson of the School Governing Body (SGB) and the District Director for Metro East. While the applicant was waiting for his conversion during September 2019, he did not receive his salary payment, whilst all the other contract employees received their salaries. He was also required to do the security clearance check during this period. While he was waiting for the respondent to affect the conversion, he on 21 November 2019 received the normal notice that his services will be terminated at the end of the year. In January 2020, as he had done each year, he reported for duty on 13 January 2020 when the Principal informed him his services were no longer needed and that somebody else had been appointed in his post. The applicant had occupied a vacant substantive post for three years and was eligible to be placed in a post since the respondent had renewed his contract consistently. The applicant was aggrieved since no reason was provided to him why his contract was not renewed on that occasion. This compelled the applicant to refer a dispute relating to the non-renewal of a fixed-term contract and that a legitimate expection had been created during the three years with the same practice having been followed every year, followed by the instruction that he apply for conversion to a permanent post. With reference to the conversion process, the respondent had cited that the applicant’s qualifications were not compatible with the post that he had occupied, and they questioned why his qualifications were compatible when he was working on contract and not in a permanent post. Since the applicant was out of employment since January 2020 and was ready to resume duties should a suitable post become available, the relief sought was reinstatement and compensation for the embarrassment and humiliation for not being provided with reasons for the non-renewal of his contract.
19. Mr M Ngcelwane, the applicant, testified as follows under oath in his evidence in chief: Before he joined Luleka Primary School he taught at Primary and High Schools in Gauteng. He taught grades 5, 6 and 7 at Lukela Primary School with subjects of English, Social Science and Life Orientation. He explained the fixed-term contracts which he was appointed on and how they were renewed. The practice of the school before the end of each year was that in November, they received a communication that their contracts will be terminated on 31 December. When they returned in January of the next year, they found that their contracts had been renewed and the information that the contract was terminated was just a formality. There was no reason presented when he received the notification on 21 November 2019 that his contract was to be terminated. He received the same letter in 2017, also with no reason provided why his contract was to terminate. He occupied a Post Level 1 substantive vacant post from 2017 to 2019 and was not substituting for another educator. He was shocked when he reported at the school in January 2020 and was told by the Principal that his post was occupied and he must return home. He asked the Principal the same day what happened to his application for conversion and was informed by the Principal that he did not know and was still waiting for the outcome. He afterwards on the same day contacted HR to enquire about the conversion and was informed by HR that the Principal had told them to withhold the process and that he should ask the Principal for the reason. Reference was made to the verification certificate for permanent appointment as a Post Level 1 Educator (the conversion application) which he confirmed was signed by the Principal, the Chairperson of the SGB and District Director on 31 July 2019. He did not think the Principal had the authority to withdraw the application and conversion process since he had signed it. The Principal had never at any stage informed him of his intention to withdraw the process. In October 2019 when the other contract teachers were renewing their contracts, he was told by the Principal that there was no need to complete his contract renewal forms due to the conversion application already having been submitted and processed. The only reason that he could think of why the Principal decided to intercept the process was that he wanted a bribe from him (the applicant) as the Principal had asked him for a bribe before by referring to it as a “colddrink”. He had a good relationship with the Principal for all the years, with no problems between them. There were several other teachers on contract and the Principal kept them all, including himself, on contract for a long time. Some teachers converted and there was a rumour that they were paying the Principal, with mainly female teachers converted. He believed that he was eligible to be converted since he met all the requirements for conversion in terms of Clause 4.2 relating to the conversion of temporary educators to permanent posts of Collective Agreement 4 of 2018 dated 25 September 2018. Reference was made to his certifications and qualifications as contained in the applicant’s bundle of documents, which is not repeated here. He had a reasonable expectation that he would be converted into a permanent post since he had been with the respondent for three years, had met all the requirements, was experienced and performed well, with no criminal record and it was his Principal who had told him that they would be converting him and then intercepted the process after he (the Principal) had signed the conversion application himself.
20. Mr Ngcelwane testified as follows under cross-examination: He confirmed his teaching experience at the school, in that he had only taught grade 7, which was Senior Phase, in 2017 and taught grades 5 and 6, which were Intermediate Phase, in 2018 and 2019 in the same subjects of English, Social Sciences and Life Orientation. He did not ask his Principal why he was not teaching grade 7 in 2018 and 2019 because he knew there were teachers at grade 7 then and he was given grades 5 and 6 to teach. He knew about the conversion process since 2017 but did not ask the Principal to be converted already in 2017 because he did not want to confront the Principal as he knew how the Principal operated and waited for the Principal to initiate the process since he could have terminated his contract. He had reported to the Union Chairperson at the school his fears about being victimised and having his contract terminated and the failure of the Principal to convert him, but did not lodge a grievance after he spoke to the Union official. The expectation was created for his contract to be extended since he was informed that his temporary employment status was being converted and that he had to go for fingerprinting, which is when the expectation was raised. This was sufficient for him for such an expectation to be created when he was nominated for conversion. He understood from the wording of the verification certificate that permanent appointment is not automatic since specific criteria need to be complied with. He felt that the expectation was that he must be converted if the criteria are met. He agreed that the documents referred to stated the specific criteria that must be met for conversion. He agreed that his contracts had end and start dates and that he had received notification that his last contract was to expire on 31 December 2019 and that he reported for duty on 13 January 2020. The Principal had told him to report for duty 13 January 2020 and he did not volunteer to report for duty. He reported for duty because by 31 July 2019 he was told that he was converted into a permanent post, hence he saw no reason to not report for duty as he knew that he was no longer temporary as the Principal had said that he must not complete the contract renewal forms since they were processing the conversion. He had signed the contract renewal form for October to December since the Principal had told him that he must apply for the renewal otherwise he will not be paid. He had understood that he was converted since the Principal, SGB Chairperson and the District Director had signed the conversion form and the Principal had told him that they were waiting for the conversion process when he did not receive his salary. The expectation had been created that he would be converted since no one told him that he would not be converted for certain reasons and it was unfair not to inform him what was happening. He conceded that his qualifications did not allow him to teach grades 5 and 6 but grade 7 Senior Phase. He taught grades 5 and 6 as allocated by Management and the Principal, but was not in a position to refuse this, since it was their decision, not his, and he could not be blamed for that. He was not the only temporary teacher whose contract was terminated end 2019. There were many of them and some went back in January 2020 and are still at the school. He was not the only teacher who applied for conversion in July 2019. There were others who also applied and they were converted, with only female teachers converted at the time. He could not recall the name of the lady in HR he went to see personally on that same day in January 2020 (when he reported for duty and was informed that his contract was terminated) to enquire about his conversion. He did not think the Principal had acted in good faith when he told him in October 2019 not to sign the contract of renewal because of the conversion process application since the Principal must have been ill informed about the conversion process and could first have checked with HR. He did not report in 2019 that the Principal wanted to bribe him but only reported it this year, with no proof that he could produce in the form of for example SMS communication.
21. Mr Ngcelwane testified as follows under re-examination: Management and the HOD allocated grades and subjects to be taught at the school. He did not have a say, particularly as a temporary educator, and it was unreasonable for Management to instruct him to teach a grade he was not supposed to teach. He should have been placed with a grade compatible with his qualifications, which has now disadvantaged him. It was not reasonable to be informed that his contract was to terminate as a reminder, without a reason provided. With respect to the conversion application he thought the delegated authority to decide on a conversion is the HOD and he believed it did reach the delegated authority. He did not sign the form for the conversion. He was provided the signed form to e-mail to the respondent. The mere completion of the form on 31 July 2019 created the expectation since he was told that he is being converted into a permanent position by the school. He had met all the requirements and criteria for conversion since all the questions on the form were signed off as yes and he had been in the post for three years. Of about seven male teachers since he arrived in 2017 not a single male teacher was converted, only female teachers. No information was ever given to him at the school on why his conversion was intercepted by the Principal. He had reported the issue of kickbacks regarding the Principal in 2020 and had not received a response yet to the respondent’s investigations, which was a separate issue and not part of this dispute.
THE RESPONDENT’S EVIDENCE
22. The respondent’s case was that they did not dismiss the applicant as cited by him. The applicant had fixed-term contracts with start and end dates, which he was aware of. There was an intention to convert the applicant to permanent status since he was employed on a temporary basis for more than three months and he was informed that he could apply for conversion. The School Principal only recommends conversion and the HOD decides on conversion if the conditions are met such as appropriate qualifications and a lack of a criminal record. The applicant’s qualifications were not aligned with the Phase which he was teaching. The applicant was also informed timeously of the respondent’s intention not to renew his contract the following year and that his contract would lapse at the end of December 2019. The applicant could not be appointed nor converted due his qualifications. Somebody else was appointed in the position that he had occupied at the school, with no vacancy left. The applicant could apply to be appointed in future vacant positions, subject to a selection process and if his qualifications are aligned with the grades he would have to teach. The applicant was not asked to return to the school in January 2020, with no correspondence received that he was to return, whereby he created the expectation on his own.
23. Mr G Mtoba, School Principal of Luleka Primary School, testified as follows under oath in his evidence in chief: He explained the Principal’s, SGB’s and the District Director’s role when an educator applies for conversion from temporary to permanent employment, which was to make a recommendation to the HOD for approval. By applying for conversion and submitting the form it did not mean that one was automatically appointed as permanent, which depended on the HOD. The applicant knew that by the form being completed that he was not appointed yet since he was an experienced educator and knew that it depended on the HOD. The applicant never taught grade 7 at the school. The applicant’s last contract terminated 31 December 2019 and he was informed of this by letter in November 2019 timeously to him and other temporary educators. As the person who initiated the conversion process, he discovered that the applicant had only submitted High School qualifications when he said he had Primary School qualifications. He did this in good faith when the applicant said he had left his Primary School certificates in KwaZulu-Natal due to victimisation and had filled in the form on the assumption that he had qualifications for Primary School based on his performance. The respondent encouraged them to appoint the right people in the right place with the right qualifications. It was false that he did not renew the applicant’s contract because he wanted a kickback from the applicant. As an experienced educator the applicant should have reported this to HR since it was corruption to want a bribe. The applicant would not have received salary without signing the contract renewal form in October 2019 and he would have suggested that he not renew the contract because they were waiting for the conversion process to kick in. In his view the applicant’s qualifications were relevant in High School, not in Primary School. He did not only convert female educators, with the HOD’s telling them to convert people who are performing. It would be sexist in terms of the respondent’s policies and there could be other reasons not to convert male educators.
24. Mr Mtoba testified as follows under cross-examination: When he qualified, he was qualified to teach in High School but in those days, one could also teach in Primary School. He confirmed his own, the Chairperson of the SGB’s and District Director’s signatures on the applicant’s conversion application form. He did not receive the applicant’s qualifications on appointment, who told him that he would still bring his qualifications since he ran from KZN due to the conflict there. He did not approve appointments into posts. He assumed that the applicant was qualified for Primary School teaching when he was appointed on the basis that he said he would bring the qualifications. The applicant was kept on and his contracts renewed without the qualifications for three years since the applicant promised he would bring the qualifications and he hoped the applicant would be honest and do that. He may have been mistaken that the applicant taught in KZN, but it could have been in another province such as North West. He signed the conversion nomination form for the applicant confirming that he had seen all the documents because he thought the applicant was honest, who had never told him that he did not have the Primary School qualifications. He had initiated the conversion process in good faith trusting that the applicant had the qualifications. The Principal, and not the employee, initiates the process. Reference was made to the grid completed on the conversion application document. He did not know until the meeting with his HOD’s that the applicant was not performing well and according to himself he thought the applicant was performing well. With respect to item 4 relating to qualifications he thought that the applicant had the qualifications and could have e-mailed the qualifications to the respondent so as not to penalise the applicant. After the applicant did not produce the qualifications, he decided to retract the application since the respondent would have regarded him as being dishonest on the form. He was referred to the applicant’s qualifications and certificates in the applicant’s bundle of documents. He was not sure whether he saw those documents when the applicant applied for the post in 2017 since it was a long time ago. He had grade 7 in his school but the applicant never taught grade 7 at the school in 2017 or later. As the Principal he deployed the applicant to teach Grades 5 and 6 as he had no teachers in those grades. He did not waste the applicant’s time and deliberately disadvantaged him by deploying him in grades which did not fit his qualifications. Based on their need analysis they deployed him where he was needed. The applicant had lied about his qualifications, they were not an employment agency and the applicant could have applied for a post in a High School. He attended a meeting in 2019 where they were instructed to employ people in the correct place. The applicant was never forced to stay there and could have applied to other schools. When they received the communication from the respondent the applicant was informed that he was not employed in the right grade. The applicant was not a first-time educator or bursary holder. He did not dispute that the applicant had many qualifications. He had advised the applicant that he did not have these qualifications and must apply to other schools, but was waiting for the applicant to produce the qualifications that he promised. He informed the respondent to retract the applicant’s conversion application and would re-send it when the applicant provided the correct qualifications, otherwise he as the Principal could have been charged for misconduct. He never recruited the applicant, who was on contract. The applicant was not converted in 2017 because he was waiting for the qualifications. He knew the requirements for conversion and gave the applicant time, with nothing against him personally. There were terms that the applicant was not at school during the period from 2017 for contracts which were not renewed, which records the respondent should have. He never demanded money from teachers, which was a serious allegation and could be reported by an experienced teacher as a chargeable offence for misconduct. Nobody had reported to him that such allegations had been brought against him by the applicant. By keeping a person on contract for three years did not create an expectation and the applicant was reminded that he did not have the requirements and that he should apply to the High School being built in Khayelitsha as well as the TVET College. He repeated that he did not waste the applicant’s time by keeping him on contract for three years since the applicant had other options to apply to other schools. The applicant was happy to be on contract as it earns more money. He had never forced the applicant to be on contract.
25. Mr Mtoba testified as follows under re-examination: There was no vacancy at the school for the applicant to be reinstated in, as requested. He had trusted that the applicant had the Primary School qualifications and that he would bring them. He did not promise the applicant that his contract would be extended into 2020. It was only the HOD who decides and approves appointments.
26. Mr H Wyngaard, Deputy Director Recruitment and Selection testified as follows in his evidence in chief: He confirmed his position in the Recruitment and Selection Department of the respondent, with about 30 years’ experience. He explained the role of this Department, which included permanent appointments and conversions, evaluation of qualifications and determination of salaries. He pointed out that there were two ways in which permanent appointments were made, one through advertised posts and the other through conversions from temporary to permanent employment. He explained the conversion process in terms of section 6 of the Employment of Educators Act, of which the purpose was to get more permanent educators appointed quicker after three months. This only applied to entry level posts at Post Level 1 where a substantive vacancy existed and the educator had to be suitably qualified for the post. Reference was made to the relevant circulars in this regard, which are contained in the respondent’s bundle of documents. In order to teach in Foundation Phase and educator must have Foundation Phase qualifications. The applicant’s quallifications did not make him suitable to teach in Foundation Phase and Intermediate Phase since he had High School qualifications. Deviation could be allowed when an educator is employed on contract due to scarcity of teachers, otherwise the educator had to be suitably qualified for the post applied for. The process for applying for conversion was firstly that the SGB and the Principal must decide on a substantive vacancy and confirm this with the respondent (the Department). The initiative to apply for conversion can come from the educator or the Principal. The Principal must also ensure that the educator is suitably qualified for the conversion before the process continues. The rest of the process for conversion from temporary to permanent status was explained, of which the detail is not repeated here. When qualifications are assessed and it is found that the educator is not suitably qualified for the post level, a letter will be drawn up to explain this. The Principal can at some time stop the conversion process and must explain to the educator that he/she is not suitably qualified. They however preferred that the application be sent to the respondent to make the final decision or overturn the Principal’s decision. The delegated authority for the appointment of staff in the Province was explained. In the case of Post Level 1 appointments the Assistant Director Recruitment and Selection at Head Office had the delegated authority to confirm appointments. To be nominated for conversion did not mean that one would automatically be converted, but was only a recommendation with no expectation of permanent employment created. An appointment was only approved until a letter confirming this is received from the Department and ratified by the delegated authority. He agreed with the contents of the NAPTOSA news flash of 2 September 2020, which accurately summarised the conversion process.
27. Mr Wyngaard testified as follows under cross-examination: The purpose of the conversion process was to get as many suitably qualified educators permanent in a short period of time. They must hold relevant and suitable qualifications to teach in the Phase of the post converted in. He did not have the academic transcript for the applicant, but only the evaluation done of his qualifications. He was referred to the applicant’s salary determination and evaluation of qualifications dated 20 February 2020 as contained in the respondent’s bundle of documents. In the applicant’s case the post was for Intermediate Phase grades 4 to 6 and not Senior Phase grades 7 to 9, which the applicant was qualified in. Certain Primary Schools have grade 7 but it is difficult for a Principal to appoint somebody just to teach Senior Phase grade 7. The applicant’s qualifications are ideal to teach grades 10 to 12 at High School. They have contract teachers appointed to teach in wrong Phases, but going forward they will not make the same mistakes as in the past since this can also lead to unfair labour practice challenges. Most of the High School qualified teachers did not want to go to High Schools but preferred Primary Schools. He had not seen the applicant’s conversion application before and would not have converted the person, which was only a recommendation. A Principal had the right to intercept and stop the conversion process if something wrong was found. Even if the Principal had ticked yes at item 4 on the form that the educator is suitably and professionally qualified, he would not have approved the conversion. No reference was made to a particular post or Intermediate Phase on the form. The application was incomplete since the form to say what the educator is going to teach was not there. An educator can be appointed in a contract post without being suitably qualified, but when it comes to conversion for permanent appointment, they must make sure that he/she is suitably qualified, which is when it will be picked up. He commented on the applicant’s certificates and qualifications contained in the applicant’s bundle of documents, observing that these were not Intermediate Phase qualifications. He could not comment whether it was fair or not to accept a person with unsuitable qualifications to teach for three years in a post, but the person had three years to find or apply for a suitable post at High School in grades 7 to 12. Bursaries referred to in the documents were only available for permanent staff for their own continuing development. If you were not permanent but a contract educator and wanted to qualify in Intermediate Phase you would have go out and pay for your own studies. There was no inconsistency and it would be inconsistent if a bursary was provided to a contract employee. The outcome of a conversion application would be provided to the Principal and SGB, with it being their responsibility to communicate it to the educator concerned. If the Principal did not send in the application, he can tell the applicant that he is not going to recommend the conversion, but they would not have approved it based on the qualifications. If the Principal had not informed the applicant that he had intercepted the conversion a grievance can be lodged. A Principal cannot do anything until a grievance has been lodged or arbitration is completed. He agreed that it would be proper to inform somebody that he did not qualify. He was not an expert to comment on whether a reasonable expectation of renewal of a fixed-term contract would be created after successive fixed-term contracts had been renewed for almost three years, save to observe that only if one was suitably qualified and met all the requirements of the post, but not if one was not suitably qualified. He responded to the statement that the LRA stated that a person may not be employed temporarily for more than three months, that a person could not be employed permanently if there were no suitable qualifications. He could not say whether it was fair or unfair to have an unqualified person to teach for about three years, but it depended on the circumstances at the school.
28. Mr Wyngaard testified as follows under re-examination: It was not compulsory for an educator to be subjected to the conversion process after completion of three months on contract, but it was their wish and they must be suitably qualified to be converted permanently.
CLOSING ARGUMENT
29. Verbal closing arguments were presented by the parties. They are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.
ANALYSIS OF EVIDENCE AND ARGUMENT
30. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the applicant, Mr M Gcelwane, had a reasonable expectation that his fixed-term contract with the respondent would be renewed in 2020 or that he would be offered indefinite (permanent) employment by way of the respondent’s process converting temporary educators to permanent employment, and further whether an unfair dismissal had applied when the respondent had failed to do either.
31. The relevant section of the LRA reads as follows at section 186(1)(b):
(1) ‘Dismissal’ means that –
(b) 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;
32. It should be borne in mind that the onus of proof is on the applicant in this matter to prove that a reasonable expectation was created in the above circumstances. The Courts have also guided that this expectation should be based on objective and not only subjective grounds, as articulated in NUM obo Mpaki vs CCMA & Others JR 1983/2014 handed down on 9 September 2016, in which the Court held that apart from the subjective perception there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances, and identified a number of factors which may influence such a finding, such as agreements, undertakings by the employer, custom or practice in regard to renewal, the availability of the post, the purpose or reason for conclusion of the fixed-term contract, inconsistent conduct, failure to give reasonable notice and the nature of the business.
33. The following facts had emerged as either common cause or remained undisputed during these arbitration proceedings:
34. The applicant was employed on a series of fixed-term contracts at Luleka Primary School since 1 January 2017 until 31 December 2019.
35. He received a written notification on 21 November 2017 to remind him that his contract was to end (terminate) on 31 December 2017, which was renewed again in January 2018.
36. He received a similar notice on 21 November 2019 that his contract would be expired (terminated) on 31 December 2019 and then reported for duty again in January 2020 as he had done in previous years, when he was notified by the School Principal that his contract was terminated and had therefore not been renewed.
37. The applicant’s qualifications are aligned to the teaching of Senior Phase subjects which are normally taught at High School.
38. He was employed to teach Intermediate Phase subjects at Luleka Primary School in grades 5 to 6 for the duration of his temporary employment at the school. The applicant had contended that he also taught grade 7 in 2017 at the school, which was not improbable as the evidence was that some Primary Schools also taught at grade 7 level. This was however denied by the School Principal, who testified that the applicant only taught grades 5 to 6 for the full period that he was there.
39. The respondent’s conversion policy as contained in Circular 0006/2019 dated 5 January 2019 stated that a temporary educator could be converted to permanent after being employed in a temporary capacity for a continuous period of three months if all the elibility criteria for conversion were met, which included that the educator should have been employed in an approved substantive vacant entry level Post Level 1 position and was suitably qualified for the Phase which was being taught in. In terms of these criteria the applicant was not eligible for conversion in the post that he had occupied temporarily since he did not possess the suitable qualifications for the Intermediate Phase that he had taught in.
40. The evidence was that due to the needs of schools’, temporary educators were often deployed in posts that they were not qualified for, which practice the respondent wished to stop to achieve consistency and avoid the potential of unfair labour practice disputes arising.
41. The School Principal had testified that the applicant was aware that he needed Primary School qualifications to teach at the level he was employed in, that the applicant had stated to him that he possessed such qualifications and had promised he would provide these to him. He had completed the conversion documents in good faith stating that the applicant had the required qualifications for the post and had retracted the application when the proof of qualifications was not forthcoming. Mr Wyngaard confirmed in his evidence that a Principal had the right to retract or intercept a conversion application before it reached the relevant Department if they found something wrong with it. The version that the applicant had promised to provide his Primary School qualifications to the Principal was not put to the applicant, nor was the Principal’s evidence in this regard adequately challenged, hence the Principal’s evidence in this regard is viewed as the more probable.
42. The conversion application document (verification certificate) stated clearly that conversion was not automatic and that specific eligibility criteria had to be met. The respondent’s evidence supported that the submission of the application was a recommendation for approval by the appropriate delegated authority and not a confirmation of permanent employment, which would be in the form of a written communication to the educator concerned.
43. The applicant was not notified by the School Principal of the reason why his final fixed-term contract was terminated and not renewed.
44. The School Principal did not notify the applicant that his conversion application was intercepted or that he had not met the eligibility criteria for conversion, which he only became aware of when he enquired from Human Resources after he was told by the Principal on 13 January 2020 that his contract was not renewed.
45. In considering the above facts and the evidence presented by the parties, I firstly find that a reasonable expectation had been created, on the balance of probabilities, that the applicant’s fixed-term contract would be renewed again in 2020 based on the practice which had occurred over previous years, as well as the conversion application during July 2019, which in the applicant’s knowledge was still being processed, and of which the status had not been advised to him until he sought clarity in January 2020 from Human Resources.
46. I secondly find that a reasonable expectation had not been created with respect to the prospect of indefinite or permanent employment through the conversion process, which both the evidence of witnesses and the documentary evidence supported was a recommendation and not an assurance that conversion to permanent employment would be granted, as well as that the applicant would have been reasonably aware that he did not qualify for the post in question, with reference to the eligibility requirements for conversion as set out at clause 4 relating to the conversion of temporary educators to permanent educators of Collective Agreement 4 of 2018 titled The Appointment and Conversion of Temporary Educators to Posts on the Educator Establishment.
47. An observation needs to be made that many of the issues that gave rise to this dispute could have been prevented if the applicant had been timeously apprised of reasons for the respondent’s actions such as the termination of his fixed-term contract and that his qualifications were not suited to the Phase that he was teaching in, as well as had been timeously updated on the status of his conversion process by way of clear and pertinent communications, particularly from his School Principal. Of concern too is the length of time that the applicant was retained in temporary employment in a Phase which he was not qualified for.
48. In the circumstances a dismissal is found relating to the non-renewal of a fixed-term contract, which is also deemed to be unfair, and for which the applicant is entitled to relief.
49. It was not disputed that the applicant’s post had been filled and that there was presently no other vacancy at Luleka Primary School, hence it would not be possible to re-instate or re-employ him in another fixed-term contract for the same period of three months on the same terms and conditions as had applied to his previous contract with the same school.
50. It was confirmed that the applicant’s qualifications at hand related to Senior Phase education (unless he could produce the Primary School qualifications that the School Principal had referred to). In line with the respondent’s stated intention to correct past errors of deploying educators in the wrong Phase relevant to their qualifications, reinstatement or re-employment into an Intermediate Phase temporary contract at either the same or another school in the Western Cape would also be inappropriate, unless the applicant can produce qualifications acceptable by the respondent to teach at a Primary School in the Province. I would not be empowered either to order re-employment of the applicant on a new fixed-term contract that matched his qualifications with a High Shool in the Province where a substantive vacancy exists since this would not relate to the expectation of the renewal of the fixed-term contract on which he was previously employed. As testified by the respondent’s witnesses, the applicant was however entitled to apply to a High School of TVET Collge for a post compatible with his qualifications.
51. The applicant party had also requested additional relief of retrospective compensation to account for the period that the applicant has been unemployed and for embarrassment and humiliation suffered as a result of the respondent’s conduct. It is trite that an arbitrator is not empowered to make an award relating to the latter in determining a dismissal dispute such as this, but only to consider reinstatement, re-employment or compensation in respect of the unfairness of the dismissal itself.
52. Since it was found that a dismissal had occurred due to the non-renewal of a fixed-term contract, the normal relief is that an applicant be either appointed on another fixed term-contract on the same terms and conditions which applied to the last contract, or to be compensated for the duration of such contract if re-employment is not possible.
53. Since re-employment is not possible I will in the circumstances consider an award as to compensation of three months for the contract that the applicant had a reasonable expectation would have been renewed from January 2020.
54. In making this award I will take into account the applicant’s confirmed gross remuneration of R302334.00 per annum or R25194.50 per month, which would amount to R75583.50 for the three months’ duration of the fixed-term contract which he could reasonably have expected to have been renewed from January 2020.
AWARD
55. A reasonable expectation had been created that the respondent, Department of Education – Western Cape, would renew the applicant, Mr M Ngcelwane’s, fixed-term contract which expired 31 December 2019, for a further three-month period from January 2020.
56. No reasonable expectation was created that the respondent would convert the applicant to permanent or indefinite employment.
57. The respondent is ordered to pay the applicant compensation in the amount of R75583.50, being three months’ remuneration for the duration of the fixed-term contract which was not renewed, less statutory deductions if applicable, by not later than 30 November 2020 into his bank account.
58. No order is made with respect to costs.
SIGNED AT DE RUST ON THIS 23rd DAY OF OCTOBER 2020.
Panelist