PSES 776-18/19NW
Award  Date:
18 November 2020
Case Number: PSES 776-18/19NW
Province: North West
Applicant: SW PHALADI
Respondent: Department of Education North West
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Madibeng Sub-District Offices of the Department of Education, North West Province
Award Date: 18 November 2020
Arbitrator: Kenneth Dlamini
Case Number PSES 776-18/19NW

In the matter between

SW PHALADI Applicant

and

Department of Education NW Respondent

ARBITRATOR: Kenneth Dlamini

HEARD: 19 October 2020

CLOSING ARGUMENTS: 23 October 2020

DATE OF AWARD: 18 November 2020

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1)(b) – Refusal by employer to renew fixed term contract – whether employee had a reasonable expectation of renewal or permanent appointment – Factors to be taken into account to establish whether employee has such reasonable expectation

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1 The arbitration hearing was part-heard on 14 June 2019, 16 September 2019 and again on 11 November 2019. It was postponed on 18 February 2020 and again on 31 July 2020 at the Madibeng Sub-District Offices of the Department of Education, North West Province. It was finalized on 19 October 2020.

2 The Applicant, Mr Stephen Wissy Phaladi appeared in person. The Respondent, Department of Education, North West was represented by Mr Martin Keetile, the Respondent’s Employment Relations Practitioner.

3 The proceedings were digitally and manually recorded. All witnesses testified under oath.

ISSUE TO BE DECIDED

4. I am required to decide whether or not the Respondent’s failure to retain the Applicant on an indefinite basis following the expiry of the Applicant’s fixed term contract constituted an unfair dismissal as the Applicant had a reasonable expectation to be retained indefinitely.

5. The Applicant is seeking to be appointed permanently retrospectively from January 2019 in line with section 186 (1)(b)(ii) of the Labour Relations Act 66 of 1996 (the Act) as amended. The Respondent wants the matter to be dismissed as the Applicant was not dismissed, but a fixed term contract expired.

THE BACKGROUND TO THE DISPUTE

6. The Applicant had been employed on a vacant substantive post on a temporary basis from 09
September 2017 up until 31 December 2018. At the expiry of the fixed term contract, the contract was not renewed. The Applicant was earning an annual salary of R 343, 032. 00 (With benefits). Aggrieved by the non-renewal of his fixed term contract, the Applicant referred a dispute to the Council on 09 January 2020. After conciliated failed, the Applicant referred the dispute for arbitration.

SURVEY OF EVIDENCE AND ARGUMENT

7. The Applicant testified himself and further called two witnesses who testified in support of his case. The Applicant also submitted a bundle of paginated documents, bundle A, pages 1-69. In turn the Respondent led evidence through one witness and further submitted a bundle of paginated documents, bundle R, pages 1-36 in support of its case.

The Applicant’s evidence
8. The Applicant, Mr Stephen Wissy Phaladi testified that he worked as a teacher for the Department of Education from January 1987, whereby he taught Mathematics from Standard 5 to Standard 10, Physical Science from standard 8 to standard 9, English for standard 8 and Accounting Grade 9. He also taught Economics at ABET level for the senior certificate. He was promoted to be the School Principal of Sefatanare Combined School from January 1999 to June 2009. He was then appointed as the Principal of Micha Kgasi High School from July 2009 to December 2009. He was later appointed as an ISC (Circuit Manager) from January 2010 until March 2013. He thereafter resigned to join the private sector.

9. He obtained a Secondary Teacher’s Diploma in 1986 with the following: specialization with English
and Physical Science. Ancillary Subjects were Librarianship and School Guidance. He furthered his qualifications, he obtained English 1 and Education 1 with UNISA. He then shifted focus and enrolled for a BSc Degree, whereby he obtained Statistics 3, Mathematics 2, Physical 1 and Chemistry 1. He is left with Mathematics 3 in order to complete his BSc Degree. He also enrolled with UNISA for a BCompt degree, whereby he had obtained Business Management 1A & 1B, Economics 1A & 1B, Accounting Systems in a computer environment and Introductory Financial Mathematics.

10. When he was appointed at Mogale Technical High School in 2017, he was appointed in a vacant substantive post that was vacated by Mr Kola, who was transferred to Tshepagalang High School in Lethlabile. The school needed the services of a Mathematics and Science teacher on an urgent basis. The profile of the post was Mathematics and Physical Science. Both Mr Kola and himself matched the profile of the post.

11. In 2018, there were three temporary Educators in vacant substantive posts, namely, Messrs. Moswa, Mohlala, Nkwanyana, and one temporary Educator appointed against vacant Deputy Principal post one VP Khuluvhe.

12. On 07 January 2019, he went to school for the re-opening. The principal informed the staff during a meeting that none of the temporary Educators should report for duty until they were called, with the exception of Ms. Nkwanyana, who lived very far in KZN. He said such a statement was false in that Mr.Moswa and himself had reported for duty. Mr Mohlala was engaged on a private matter in Brits, otherwise he would have reported for duty as well. The Principal further informed the meeting that the School Management Team would meet later in the day to decide which of the Temporary Educators would be needed for the year meaning 2019

13. Mr Moswa and himself left the school premises immediately after receiving such information. The Applicant said Messrs Moswa and Mohlala were also from far away as they are both from Limpopo. In terms of the Post Provisioning Model (PPM) for 2017 and 2018 the school was provided with two posts for Educators who would teach Technical Subjects. The Educators were Messrs Moswa and Mohlala Ms Nkwanyana, was appointed against the post that was vacated by Ms. Lerumo, who was transferred to Jethro-Pelle High School.

14. The Applicant further pointed out that the school was and still is, in the process of acquiring personnel with the skills for a Technical High School by way of replacing the Educators who leave the institution with the relevant skills. As such, when the Department Head of Commercial subjects (Ms. Lekgetho) left the institution, she was replaced with Mr Nthodi who headed the Technical Stream, the then Deputy Principal (Mr Nthangeni), who taught Accounting, was transferred to make way for a Deputy Principal with a technical background. Ms. Mathebula, an Accounting Educator, was transferred in 2019.

15. On 25 September 2018, A collective agreement was signed by parties to the ELRC relating to the appointment and conversion of temporary educators to posts on the educator establishment. The basic requirement for conversion was at least three months of service, provided the educator was on a vacant substantive post that exists in terms of the PPM. The effective date of implementation 25 September 2018.

16. At the time that the collective agreement became effective, he had a service of one year and sixteen days. The Applicant further said that the collective agreement binds all parties, namely the Department of Education as the employing party and all Educators. He also argued that the parties at a Provincial Level do not have the authority to amend the collective agreement.

17. On 25 September 2018, the Applicant stated that he was in a vacant substantive post. When the Head of Department issued the PPM for 2019, the post still existed. In terms of collective agreement 4 of 2016, the Principal must inform the staff at a formal staff meeting about the new PPM. The views of the staff must be noted. It further requires posts to be profiled to match with the number of posts so that the curricular needs of the institution will be satisfied.

18. The Applicant argued that the School Principal failed to profile the posts in terms of the new PPM even though there was ample time to do so. This can be verified further (for an example) by the fact that the post for the Departmental head of Technical Subjects have been advertised even though there is an incumbent in the post.

19. The Department failed to inform the School Governing Body (SGB) about the steps that the SGB needed to invoke the conversion of the temporary appointments on the educator establishment. The Applicant further argued that he had been prejudiced in that the Respondent had failed to convert his temporary status to permanent appointment in the educator establishment. The Respondent further failed to extend his appointment even though the post that he occupied still existed.

20. The first witness of the Applicant, Mr Timothy Malemane Tshoane testified that he had since retired from the employment of the Respondent after twenty-five years as an Educator. He went on to say that before going on retirement he participated in various structures and task teams established by Respondent. He stated that at some point he was the Chief Negotiator at chamber level, which is the highest making decision body where policy formulation, processes, monitoring and ratification take place amongst all stakeholders including organised by Labour or unions.

21. He said his last sitting at Council level was on 15 November 2018 wherein the issue of Temporary Educators and their conversion to permanent substantive posts was discussed in line with the department Circular 42 of 2018.He stated that policy formulation takes place at Chamber or Council level, but implementation is cascaded to lower levels such as District, Sub- Districts, Circuit Offices and School Principals’ level and the lower level structures are not allowed to amend or change such agreements from top structures.

22. The witness said in 2015 the School in question was changed from being a normal or standard Secondary School to a Technical High School.

23. The witness continued to say that even the notice of termination issued to the Applicant, bundle R, page 13 is questionable because the notice came from Madibeng Sub-District instead of being issued by the office of the District Director situated in Rustenburg, Bojanala District.

24. Circular 42 of 2018, bundle A, pages 37-39 come from the office of the Administrator and not from the office of the District Director or HOD (Head of Department) whose offices are situated in Mmabatho. In terms of clause 4 of circular 42 of 2018. The School Principal (witness of the Respondent) should have at the very least submitted a list of the temporary Educators on substantive posts not affected by the placement of a Funza Lushaka (Bursary holder) to the Human Resources Development for a programmatic extension to be done through the system control change, which did not happen.

25. The witness went on to say that circular 42 of 2018 was issued on 06 December 2018 after the Applicant’s notice letter of termination had been issued on 01 November 2018. He said circular 42 of 2018 therefore has an authoritative and overriding effect over the Applicant’s notice of termination letter.

26. Regarding Annexure D Form which is the request to fill vacant substantive Educator PL1 posts in a temporary capacity bundle A pages 16-18 which was completed and duly signed by all role players firstly, by the School Principal and Chairperson of the SGB on 16 November 2018, then by the Circuit Manager on 16 November 2018. On 19 November 2018, the Area Manager made recommendations of the 4 PL1 posts which were subsequently approved by the District Director on 27 November 2018. The witness questioned the manner which the School Principal completed or filled in the Temporary Educators column in Annexure D for 2019, wherein the Principal indicated that there were no Temporary Educators, whereas they were still in employment and getting paid at the time. The witness stated that Principal made a misrepresentation.

27. On the other hand the Circuit Manager further made an error on the same Annexure D Form by indicating that there were 4 PL1 Educators currently utilised for PI 2 and PL3 promotional posts. He argued that showed that there were vacancies. The Circuit Manager went on and indicated that there were no Funza Lushaka graduate or excess Educators who can teach the required Technical Subjects and Mathematics literacy or who had the profile matching the requirement of the posts. Despite such contradictions on the Annexure A Form by the School Principal and Circular Manager, the Area Manager who is one level above the Circuit Manager recommended the appointment of the 4 Pl1 Temporary Educators and such recommendation were subsequently approved by the District Director on 27 November 2018.

28. The second witness of the Applicant, Ms Gladys Amanda Lekalakala testified that in 2018 and 2019 she was the Chairperson of the SGB at Mogale Technical High School. She stated that the School had increasingly became a Technical high School. Subjects like EMS, Geography, Social Sciences and others were to be phased out over time and were going to be replaced by Technical subjects.

29. In 2018 the school had five Temporary Educators Messrs Moswa, Mohlala Nkwanyana, Khuluvhe and Phaladi the Applicant. Technical Subjects Educators were Messrs Moswa, Mohlala and Nkwanyana. The Applicant taught Mathematics and she was not sure whether it was pure Maths or Maths Literacy. Ms Khuluvhe taught EMS (Economic Management Sciences and Accounting).

30. When the School re- opened in January 2019 the School Principal told her that the SMT (School Management Team) and herself had resolved that some of the Temporary Educators will be let go. The School Principal asked her to sign appointment forms for Messrs Moswa, Mohlala, Nkwanyana and Tiyane. At the time she insisted that a SGB meeting be convened before she could sign the appointments. Subsequently, a meeting was convened, and she signed the appointments.

31. The Applicant’s paperwork and that of Ms Khuluvhe were not submitted to the SGB. The SGB was not keen to sign Ms Khuluvhe’s paperwork because the Applicant had not been re-appointed. Ms Khuluvhe was only re-appointed after the Circuit Manager had intervened.and engaged the SGB.

32. The witness stated that initially she was not aware that the Applicant was on a fixed term contract until later. The witness admitted that a Mathematics teacher was needed at the School and the Applicant had been teaching Mathematics prior to his contract termination. However, the School Principal had indicated that she was best placed to understand the needs of the School. The witness stated that she can neither confirm nor deny whether the figure or number of theTemporary Post indicated on Annexture D Form had been altered as it was handwritten. She admitted that a Funza Lushaka graduate was placed at the school to teach technical subjects. The witness stated that she does not know whether the Respondent had an obligation to renew the fixed contract of the Temporary Educators including the Applicant.

Applicant’s closing argument
33. It is now common cause that the post in which he was appointed existed in the 2017, 2018 and 2019 PPM’s.
34. Even though the curriculum of the school was being converted to the Technical Stream, there was still a need for Mathematics and Science Educators to be retained. This evidence was adduced by both Mr. Tshoane and ME Lekalakala.

35. The witness of the Respondent was not forthcoming in that she did not explain that Mathematics and Physical Science are part of the Curriculum that is offered by all Technical High Schools.

36. The Administrator, Mr. Mohlala, issued a directive through circular 42 of 2018 that “The contracts of temporary Educators who are in schools that retains or gain posts and are not affected by the placement of Funza Lushaka will be extended.”

37. This paragraph is important to the case of the Applicant as the Administrator has the authority to appoint or dismiss in terms of the Employment of Educators’ Act. It is important to point out that Funza Lushaka bursars are appointed only on post level 1 posts. In this regard, the Administrator is referring to those temporary educators whose appointments would not be affected by the placement of Funza Lushaka bursars. This means that whenever a Funza Lushaka bursar is placed against a vacant substantive post, the temporary Educator who is occupying such a post must vacate it in favour of the bursar.

38. In this regard, the temporary educator “is affected by the placement of Funza Lushaka.” The whole paragraph must be read to understand that the Administrator referred to the contracts of those Educators who were occupying the posts that would be used to place Funza Lushaka. There are two possibilities that are depicted by the Administrator in this regard: firstly, a school may gain posts whereby a Funza Lushaka bursar would be placed. In this regard, a temporary Educator in a vacant substantive post in that school would not be affected by the placement. On the other hand, a school may retain the vacant substantive post filled by a temporary Educator. If this post is not filled by a Funza Lushaka bursar, then the educator is not affected. It is the directive that such a Educator’s contract should be extended.

39. The Respondent tried to argue that Mogale High School lost a post.It is true, but this post was a promotional post occupied by ME Mathabe who resigned and left the school before the end of 2018. In this regard, there was no educator who was affected firstly by the loss of this post, nor by the placement of a Funza Lushaka bursar. It becomes disingenuous of the Respondent to purport that the reduction in promotional posts should be the basis for the nonrenewal of the contract of the Applicant.

40. If that were so, Moswa,Mohlala and Nkwanyana’s contracts would not have been extended. In terms of paragraph 6 of the circular, the “processes MUST be finalized before the closure of schools for the current academic year as a matter of extreme urgency.” This directive did not leave any room for any other official to initiate a different process. The fact that Principal decided in January 2019 who to appoint points out that she defied the directive whereby she had no authority to deviate. IT IS CLEAR THAT THE PROCESS OF THE EXTENSION OF THE CONTRACTS OF TEMPORARY EDUCATORS, INCLUDING THAT OF THE APPLICANT, HAD TO BE DEALT WITH BEFORE THE 31ST OF DECEMBER 2018.

41. The initial case of the Respondent was that the Applicant’s contract was not renewed due to the appointment of Tivane, a Funza Lushaka bursar. The case was changed at a later stage to the
fact that it is now Khuluvhe who is appointed in the post that was previously occupied by the Applicant.

42. The Respondent purports that a letter of termination was given to the Applicant. The Respondent further
alleged that the Applicant signed the acknowledgement of the purported letter. The Applicant denied the receipt of such a letter. The Respondent did not even produce the signed acknowledgement of such a letter. The only letter that was produced as evidence was of a dubious nature. Firstly, the address on the letter did not conform to the address of the official from whom it was purported to have come from. The Office of the Director is in Rustenburg, whereas the said letter was from an address in Brits and the person who is purported to have written the letter is neither authorised to appoint educators, nor to terminate then from their contracts of employment.

43. Without repeating the evidence adduced, it became clear that the principal, the only witness of the
Respondent kept contradicting herself throughout her testimony. She said Khuluvhe was appointed against the post of Mathebula; later Khuluvhe was appointed against the post of Mathabe; later she was appointed against the post vacated by the Applicant. She could not explain why the HR Section captured the appointment of Khuluvhe as against that of a vacant substantive post in 2019. This implies that the Employer refused to appoint Khuluvhe against the post that was previously occupied by the Applicant, as this would have been in contrast to the directive of the Administrator.

44. It became clear that the school submitted its curricular needs to the Department in line with paragraph 13
0f circular 42 of 2018. The District Director approved the application for the appointment of temporary Educators on 27 November 2018, which was before the closure of the schools in terms of the directive. In terms of paragraph 13.2 “the retention of the currently employed educator must be communicated in writing to HR for confirmation of the extension provided that the Annexure D has been approved. i.e. the Educator is professionally qualified and required documents were verified.” It became clear from the testimony of the Principal that she did not only fail to communicate to HR confirmation of the extension of the Applicant’s contract, but also failed to recognize paragraph 4 of the circular. When the school applied for the approval of the appointment of the four temporary educators, the curricular needs were attached to the application.

45. The approval by the District Director was premised on the needs that were attached to the application.
As a consequence, a vacancy list was generated by the department of Education emanating from the curricular needs that were attached to the application. It became clear during the testimony of the Principal that she deviated from Circular 42 of 2018, circular 26 of 2015 and the approval of the District Director in as far as the Curricular needs are concerned.

46. The Principal took a unilateral decision to ignore, firstly, the directive of the Administrator; secondly, she
changed the approved curricular needs of the school on her own. She ignored the input of the SGB who are empowered by legislation to decide on the curriculum of the school (South African Schools’ Act). In Mlengana v Minister of Agriculture, Forestry & Fisheries, the court said at 31 “In any event, the general rule is that where a power to appoint is given to a person to appoint it implies the power to dismiss. The power to dismiss has been described as an “essential corollary’ of the power to appoint” In Mlengana at 27 the court said “Put differently, the first respondent has no express or implied power to appoint or dismiss”

47. The witness of the Respondent admitted that she decided against the renewal of the contract of the
Applicant. In terms of the law and Mlegana case, the witness misapplied herself in this regard as she neither has the power to appoint nor to dismiss.

48. The person who purportedly wrote the letter of termination of the Applicant, Mrs Ramagofu, does not
have the power to either appoint or to dismiss.

49. The Applicant was aware that even though he was appointed on a temporary basis until the 31st
December 2018, the Administrator had already taken a decision that if Applicant’s post was not affected by the placement of Funza Lushaka, his contract should be extended before the closure of the schools in 2018.

50. Based on the above as well as the evidence adduced that has not been commented on, the Applicant
believes that on a balance of probabilities he has proven that he had a reasonable expectation for his contract to be extended and that-

51. He be appointed for an indefinite appointment retrospectively to the date of dismissal.

The Respondent’s evidence

52. The only witness of the Respondent, Ms Happy Mary Doris Makofane testified that she had been the Principal of Mogale Technical High School from 2013 up until 2019. She stated that she is currently on retirement. She went on to say that the Applicant had been appointed on a substantive post on temporary basis teaching Mathematics Grade 8 and 9 and Physical Science Grade 10 since September 2017 up until 31 December 2018 wherein the fixed-term contract was terminated with the requisite notice.

53. She said the School had increasingly becoming a technical high school and for which Educators with technical subjects’ background were needed. In 2018 the School had five Temporary Educators being the Applicant, Ms Khuluvhe and Messrs Moswa, Mohlala and Nkwanyana who were teaching technical subjects. The Applicant and Ms Khuluvhe were not teaching technical subjects. Ms Khuluvhe came later replacing Ms Motaung who was on sick leave at the time.

54. Upon the return of Ms Motaung from sick leave, Ms Khuluvhe replaced one Ms Mathebula who had since been moved to another School. Ms Khuluvhe continue teaching EMS, Accounting and Life Orientation. In December 2018 Ms Tivane, a Funza Lushaka graduate was placed at the School and she started teaching technical subjects like Engineering Graphics and design and Plumbing.The Applicant and Ms Khuluvhe were not teaching technical subjects.

55. Regarding the termination of the Applicant’s fixed-term contract. The witness stated that the fixed-term contracts of all Temporary Educators terminated on 31 December 2018. She said she personally engaged with all the Temporary Educators and they all accepted their termination letters and they signed for their respective letters. She said she told the Temporary Educators that they may be called should a need arise.

56. The witness vehemently denied having mentioned anything to the Applicant which may have created any reasonable expectation on the party of the Applicant for either a renewal of the fixed term contract or permanent appointment.

57. Around November 2018 she compiled, completed and signed Annexure D requesting four PL1 Temporary Educators for 2019, which was also signed by the Chairperson of the SGB. The Annexure D was thereafter sent to the Circuit to be signed by all role players, including Circuit Manager, Area Manager and final approval from the District Office and for which the request was approved. She disputed that there was something sinister with the way Annexure D had been complied.

58. She admitted that there were Temporary Educators until 31 December 2018. The request in question was for 2019. The witness said on 13 December 2018 she convened a staff meeting wherein she gave feedback on issues discussed on 10 December 2018 during a principals’ meeting. It was in this meeting wherein she explained that the School’s PPM had been reduced by one post and that the post of Ms Masilo who had since passed on will not be replaced. The issue of Temporary Educators ending on 31 December 2018 was also discussed, bundle R page 19-20.

59. In 2018, there were three temporary Educators in vacant substantive posts, namely, Messrs. Moswa, Mohlala, Nkwanyana, and one temporary Educator appointed against vacant Deputy Principal post one VP Khuluvhe.Responding to clause 4 of Circular 42 of 2018, the witness said she became aware of the circular in 2018, She disputed that the School had gained a post. She said the school actually lost one post of a Head of Department. She further disputed that Ms Khuluvhe was appointed against a vacant Deputy Principal Post. The witness said it was Moswa who had been appointed against a Deputy Principal Post replacing Mr Nthangeni who had since left the School.

60. The witness went on to say that in line with clause 4 of circular 42 of 2018 his fixed term contract should have been automatically renewed when it expired.

61. She stated that the decision to re-appoint Ms Khuluvhe and not the Applicant was only based on the needs of the School as opposed to the number of Educators. She said EMS, Accounting and LO were still needed at the School the School had Mathematics Teachers. She argued that at no stage an expectation was created for further renewal of the Applicant’s fixed term contract.

The Respondent’s closing arguments

62. No evidence was led to suggest that a person with the necessary authority had created reasonable expectation to the Applicant for the fixed term renewal or permanent appointment. The school never gained any posts instead the school’s posts were reduced. The witness of the Respondent testified that the needs of the school determined the number of posts needed at the time and not the opposite.

63. At the time the school was increasingly becoming a technical school, however there was still a need to offer subjects like EMS, Accounting and LO which Ms Khuluvhe had the teaching experience on these subjects compared to the Applicant. Over and above that the school had Educators on substantive posts who could teach the Applicant’s subjects including Mathematics, hence Ms Khuluvhe was chosen over the Applicant based on the needs of the school.

64. Clause 4 of Circular 42 of 2018 cannot be understood as a licence which entitles the Applicant to have been re-appointed as school did not gain any posts instead there was a posts reduction. Ms Masilo who passed on her post was not replaced and this was announced during a staff meeting in December 2018.

65. The evidence of the Applicant’s first witness was all about decisions which were taken at Chamber level and for which they should been implemented without fail regardless of what was the situation on the ground. Hence the evidence of the Applicant’s first witness should be rejected together with that of the second witness whose testimony could not assist in clarifying what transpired at the school at the time the witness was a Chairperson of the SGB.

66. Regarding allegations relating to Annexure D. The witness testified that there was nothing sinister as far as the request for temporary Educators was concerned. The evidence of the witness was that it is how the request should be compiled.

67. The Respondent’s witness stated that two posts were allocated to the school for technical subjects but disputed that those posts were allocated specifically for Mohlala and Moswa. It is the Respondent’s argument that posts are not allocated to individual Educators but are determined by the needs of the school. The two posts in question were allocated to the school while the Applicant was still employed at the school in 2018 and this has therefore no effect or bearing to the termination of the Applicant’s contract. This also applies to the allegation that the post of Ms Lerumo who was transferred was occupied by Ms Nkwanyana.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

68. Section 186(1)(b) of the LRA clearly states that a 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 failed to renew it or renewed it on less favourable terms, 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”

69. The Applicant bears the onus to establish that he had a “reasonable expectation” that his contract
were to be renewed or be made permanently. He had to place facts which, when objectively considered, a reasonable expectation should be established. The test is objective, the enquiry is whether a reasonable employee would, in the circumstances prevailing at the time, have expected the employer to renew the fixed-term contract on the same or similar terms and on a permanent basis. As soon as the other requirements of section 186(1)(b) have been satisfied it would then be found that the Applicant had been dismissed, and the Respondent would have to establish that the dismissal was both procedurally and substantively fair.

70. 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 two factors; the first factor is whether the employee expected the contract to be renewed and the second factor was whether the expectation was reasonable.

71. The operative terms in section 186(1)(b)(ii) are in my view, that the employee should have a reasonable
expectation to be permanently appointed, and the employer fails to retain the employee permanently or renew a fixed-term contract or renews it on less favourable terms. The fixed-term contract should also be capable of renewal on an indefinite basis.

72. What section 186(1)(b)(ii) provides for is that there would be a dismissal in circumstances where an
employee reasonably expected the employer 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.

73. From the version of the Applicant it is evident that the Applicant’s reasonable expectation for permanent
appointment is in the main based on clause 4 of Circular 42 of 2018 which provides that “The contracts of temporary Educators who are in schools that retains or gain posts and are not affected by the placement of Funza Lushaka will be extended”. This clause talks about an extension of the fixed term contract and not about permanent appoint which was the expectation of the Applicant.

74. The Applicant further relied on the PPMs for 2018 and 2019, directives and audits which the school
Principal did not comply with including how Annexure A Form was completed by the school Principal and by the Circuit Manager. At the end of the day the request for the 4 PL1 vacant posts was recommended by the relevant Area Manager and subsequently approved by the District Director without any issues being raised regarding the number of temporary Educators which were available in 2018.

75. The Applicant also believed that as a Mathematics Educator he should have been prioritised over one
Ms Khuluvhe who was teaching EMS, Accounting and LO. The Applicant stated that Mathematics still forms part of all Technical Schools curriculum something which was not considered.

76. It is not disputed in this matter that the Applicant was appointed at Mogale Technical High School in
2017, the Applicant was appointed in a vacant substantive post that was vacated by Mr Kola, who was transferred to Tshepagalang High School in Lethlabile. The school needed the services of a Mathematics and Science teacher on an urgent basis. The profile of the post was Mathematics and Physical Science. Both Mr Kola and the Applicant matched the profile of the post.
77. It is common cause that the Applicant had been employed on a temporary capacity from
09 September 2017 up until 31 December 2018. It is further common cause that the Applicant was teaching non-technical subjects including Mathematics, Physical Science and Natural Science Grade 8, 9 and 10.

78. It is also common cause that since 2015 the School had increasingly became a Technical High School
and that non-technical subjects such as EMS, LO, Accounting, Geography and others were going to be phased out over time.

79. It is further not disputed that in 2018 the School had five Temporary Educators being the Applicant and
Messrs Moswa, Mohlala, Nkwanyana and Khuluvhe. It is also common cause that Messrs Moswa, Mohlala and Nkwanyana were teaching technical subjects except the Applicant and Khuluvhe, who was teaching EMS, Accounting and Life Orientation.

80. It is further common cause that the Principal did complete and sign Annexure D when requesting to fill four Pl 1 vacant posts. The Chairperson of the School Governing Body also signed the Annexure D Form as required. The Circuit Manager signed, the Area Manager made recommendations and signed. The request was finally approved by the District Director. Basically, all role players duly signed the Annexure as required prior to the re-appointment in January 2019 of Messrs Moswa, Mohlala, Nkwanyana (Technical Stream) and Ms Khuluvhe.

81. It is not disputed that one Ms Tivane, a Funza Lushaka bursar was placed to the School in December 2018 and she started teaching technical subjects in January 2019.

82. It is the version of the Respondent’s witness that all fixed-term contracts came to an end on 30
December 2018 with notice which was also signed by the Applicant. This is also supported by staff meeting minutes dated 13 December 2018. The Applicant denied having been served with a notice of termination. The Applicant’s argument is that the alleged notice letter came from the wrong office in Brits instead of Rustenburg and that the notice letter was signed by someone not having the requisite authority to do.

83. It was the version of the Respondent’s witness that she preferred Ms Khuluvhe over the Applicant simply because the subjects EMS, Accounting and LO were still needed and that there were Mathematics and Physical Educators on funded substantive posts in 2019. As such her decision was informed by the needs of the school and not by the number of available Educators.

84. In some instances, the needs of the school can declare Educators on substantive posts in excess and such Educators will have to be re-deployed elsewhere.

85. The Respondent’s witness vehemently denied that a reasonable expectation was created by herself and or by any other person that the Applicant’s contract will either be renewed or that the Applicant will be permanently appointed.

86 The first test is whether the Applicant have actually expected the fixed term contract to be renewed on a permanent basis. The Applicant testified to the reasons for the expectation that he had formed. Turning to the facts of the present case, I am of the view that the Applicant has not managed to discharge the onus of showing in the very first instance that he objectively had an expectation that his contract would be converted to an indefinite contract. The Applicant was in a substantive post on a temporary capacity in the first and second written contracts from September 2017 up to the 31st of December 2018 which translates to sixteen months. It is my considered view that the renewal period was not that long.

87. The Applicant was not permitted by default to continue in employment after the fixed term has expired. No person with the necessary authority to bind the Respondent created any reasonable expectation for either a renewal or permanent appointment. Nothing suggested that the Applicant had been in a way allocated a post for 2019 or that further renewals were subject to good behaviour and proper work performance which it can be said that it was not communicated to the Applicant prior to the expiry of the fixed term contract which may lead to a reasonable expectation.

88. In conclusion, the Applicant in this matter did not prove that there was a dismissal on 31 December 2018 when his fixed term contract and those of other Temporary Educators came to an end or expired. I find that the termination of the fixed term contract of the Applicant with a one-month notice and payment up to 31 December 2018 that it was substantively and procedurally fair. The Applicant could also not prove that he had a reasonable expectation that his contract would be renewed on an indefinite basis.

Award

89. The Applicant, Stephen Wissy Phaladi, was not dismissed by Respondent, Department of Education-North West, but a fixed term contract expired, or it came to its natural end. Over and above that, the Applicant had no reasonable expectation to be appointed on an indefinite basis.

90. The case of the Applicant is dismissed.

Kenneth Dlamini
Panelist: ELRC
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