Case Number: ELRC874-19/20KZN
Applicant: G. GANDIWA & 2 OTHERS
Respondent: DEPARTMENT OF HIGHER EDUCATION AND TRAINING – KWAZULU-NATAL
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Thekwini TVET College, Durban.
Award Date: 30 November 2020
Arbitrator: Humphrey Ndaba
G. GANDIWA & 2 OTHERS Applicants
DEPARTMENT OF HIGHER EDUCATION AND
TRAINING – KWAZULU-NATAL Respondent
Case Number: ELRC874-19/20KZN
Date of Hearing: 12 November 2020 and 19 November 2020
Closing Argument submitted: 27 November 2020
Date of award: 30 November 2020
ELRC Arbitrator: Humphrey Ndaba
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
Details of hearing and representation
1. This arbitration hearing took place on the 12 November 2020 and 19 November 2020 at Thekwini TVET College, Durban.
2. Givas Gandiwa was represented by a union official from NAPTOSA and Dennis Musengi and Lindah Muchayi were represented by Luntu Nocha a NEHAWU official. The Respondent, Department of Higher Education and Training was represented by Nokukhanya Gcumisa a Human Resource official.
Background to the dispute
3. The applicants were employed as lecturers, L Muchayi in March 2013, G Gandiwa in March 2013 and D Musengi in February 2012.
4. They were transferred to DHET with effect from 1 April 2015. The services of the employees were terminated on the 31 December 2019.
5. Muchayi earned a basic monthly salary of R24 283.50, Gandiwa earned a basic monthly salary of R23 732.75 and Musengi earned R250623 per annum.
Issue in dispute
6. The issue in dispute is the substantive and procedural fairness of the dismissals.
Survey of evidence and argument
Penelope Sindisiwe Msomi (Respondent’s 1st witness)
7. Msomi testified that she is an Assistant Director: Human Resource Management and is in charge of the recruitment process, training and other HRM duties.
8. She stated that in the recruitment process, the manager of the post does requisition if there is a need for a specific post and forward the requisition to HRM. An advert is then done accordingly, then there would be shortlisting and interviewing process and a suitable successful candidate will be informed.
9. She knows all three applicants in this matter, and they are her former colleagues. The applicant’s contracts were not renewed as there was a resolution by the council that employees who are foreigners, have no scarce skills and have fixed-term contracts that will expire, their contracts should not be renewed.
10. As HR they then issued all three applicants with notices that their contracts will not be renewed. She is aware that this was communicated in the Labour Forum meeting where organized labour and management sits.
11. A fixed-term contract in this matter expires on the contract end date or when the foreign permit expires. She further stated that she does not believe that the non-renewal of the applicants fixed-term contract is unfair dismissal because of the following reasons:
11.1 They are foreigners and their skills are not scarce skills.
11.2 There was a resolution by the council that foreign nationals must not be appointed on the posts which are not scarce skills.
12. She stated that it is incorrect to say the GEPF is only for permanent employees as employees appointed on fixed-term contracts also contribute to GEPF.
13. During cross-examination by NAPTOSA she stated the following:
13.1 NAPTOSA forwarded an email requesting reasons for the non-renewal of contracts and reasons were given as requested.
13.2 The issue of non-renewal of foreigner’s fixed-term contracts was discussed at the labour forum meeting.
13.3 She knows that the applicants’ skills are not scarce skills which is the reason their contracts were not renewed.
13.4 She confirmed that the positions that they occupied were advertised and that advert did not state foreigners must not apply.
13.5 She stated that there is a chance that the applicants knew about the non-renewal of their contract prior to receiving letters as this was communicated in the labour forum.
13.6 When a version was put that the decision to not renew the applicants’ contract was not the DHET decision but a college decision. She responded by saying she disagrees because the council of the college is appointed by the Department of Higher Education and Training.
13.7 A version was put that it was not DHET decision because if it was it would have been applied in all colleges and also that there is dual employer, which is DHET and the college council. She stated that she was not comfortable to comment on this and a person senior to her will be in the position to answer or comment on this, her answers will be limited.
14. During cross-examination by NEHAWU she stated the following:
14.1 She knows both applicants.
14.2 She stated that the non-renewal of their contracts was fair as they were aware that their contracts were expiring.
14.3 She was present in the labour forum meeting and she knows that the issue of non-renewal of foreign national’s contracts were discussed and reasons were given.
14.4 She stated that the notice letters were given on 5 December 2019 and agree that giving less than 30 days’ notice is procedurally unfair.
Nokuthula Majali (Respondent’s 2nd witness)
15. Majali testified that she is the Deputy Principal Cooperate Services, she manages HRM, IT, Marketing and skills development. She stated that a fixed-term contract is the type of employment which have a start date and the end date.
16. All three applicants were on fixed-term contracts which were expiring on 31 December 2019.
17. She further stated that no expectations were given by the employer to applicants which could have given them expectations that their contracts will be renewed. Applicants were even given courtesy reminder letters which reminded them that their contracts were expiring and were also informed that their contracts will not be renewed.
18. She further stated that the non – renewal of the applicants’ contracts was fair as they also knew that their employment contracts were expiring on 31 December 2019.
19. She stated that there is a DHET selection and recruitment policy which states that foreign nationals must only be appointed if there is no South African applicant suitable for the post.
20. The posts which were previously occupied by applicants were advertised, shortlisting and interviews were done, and suitable and successful candidates were appointed. All appointed people were South African Citizens.
21. She stated that the college council is the governance of the college and it consists of members appointed by MEC, student representatives, a staff representative and the principal.
22. She further said there is also an HR sub-committee where a member of council sits and issues pertaining to HR are discussed.
23. She further stated that it came out during the sub-committee meeting that there are foreign nationals who were appointed and were not in position of scarce skills. This matter was then escalated to council meeting as a new council was appointed in 2019 and where a resolution was taken that fixed-term contracts of foreign nationals who were not scarce skills will not be renewed.
24. She stated there is no entitlement to the posts. She further stated that the issue was discussed in the labour forum whereby management and organized labour robustly deliberate on mutual interest matters
G. Gandiwa (Applicant’s 1st witness)
25. Gandiwa testified that he was firstly appointed in March 2013 as the Lecturer and he went through the interviewing process. He acknowledged that his contract was always ending on the 31 December of each year.
26. He expected that their 2019 contracts will also be renewed. He then saw an advert of the post that he was occupying, and he applied for the job but was not shortlisted and not interviewed. He was not given a reason why his contract was not renewed.
27. He was not aware of the council resolution that foreigners on fixed term contracts without scarce skills would no longer be renewed. He was notified on 5 December 2019 that his contract will no longer be renewed. For the past six years, his contract was automatically renewed. His position was advertised and somebody else was appointed. He applied and he was not even shortlisted. He was not given reasons why he was not shortlisted. He is currently unemployed without an income. He was seeking compensation.
L Muchayi (Applicants 2nd witness)
28. She was firstly appointed in 2013 as a lecturer for Mathematics literacy and new venture. She feels that she was unfairly dismissed because, she was not given a reason for her dismissal, there was no proper notice given as the notice was less than 30 days. Her post was advertised and filled, she applied and was not shortlisted, her contracts were previously renewed, she worked for the college since 2013 with no break in service.
29. She did not know about the DHET recruitment policy. She was enjoying benefits of being permanent. In 2020 her subject was still needed and nothing was said about foreigners in the advert. She was currently unemployed. She is seeking compensation.
D. Musengi (Applicants 3rd witness)
30. Musengi testified that he was firstly appointed by the college in 2013 and has worked for the college until December 2019. The non-renewal of his contract constitute an unfair dismissal because of the past conduct of the employer who used to renew his previous contracts.
31. The employer even sent him for training in 2012 at the employer’s cost and from 2016, he was enjoying benefits that are usually given to permanent employees. He does not know any law that prohibits the employer from employing him.
32. There are no student enrolment problems and he had a good relationship with his previous supervisor. He thought his supervisor would recommend him and his contract will be renewed.
33. He thought section 186 (b) will protect him but his post was advertised, and he applied but was not shortlisted and no reason was given to him. He was not made aware of the DOHE recruitment policy which impacted negatively on him. He was teaching entrepreneurship business management N4 and public relations N6. He was not aware of the labour forum meeting which took place on 5 December 2019. He got notice of the nonrenewal of his contract on 5 December 2019. In his view, this was short notice.
34. He was currently unemployed and was seeking compensation.
Analysis of evidence and argument
The Employees reasonable expectation of renewal – Case Law
35. An important decision in this context is SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218(LAC) “In this case, the Labour Appeal Court made the following salient and important points:
35.1 The onus is on the employee to prove that he or she had a reasonable expectation of renewal;`
35.2 To discharge this onus the employee must place facts before the commissioner to show on what basis the expectation was based. The test is objective. It does not focus solely on the employees wish or subjective feeling or perceptions;
35.3 The test can be summarized as follows ‘the enquiry is whether a reasonable employee in the circumstances prevailing at the time would have expected the employer to renew his or her fixed term contract on the same or similar terms;
35.4 There was no clause in the contract stating that the employee should have no expectation of renewal.
35.5 If the employer has renewed the contract more than once before, then the employee’s expectation becomes more reasonable every time the contract is renewed (SACTWU & another v Cadema Indistries (Pty) Ltd (2008) 8 BLLR 790 (LC);”
36. In this matter, the renewal happened 6 times;
37. In DeMilander v MEC for the Department Finance: Eastern Cape and others (2013) 34 ILJ 1427 (LAC), The Labour Appeal Court held that the question whether an employee had a reasonable expectation of renewal involves a two-legged test, namely: the existence of the expectation and the reasonableness of the expectation. The test for the former is subjective and for the latter is objective.
38. The applicants have confirmed that due to the following reasons their expectation did exist and are reasonable.
38.1 Their contracts were renewed for 6 consecutive years;
38.2 Their job descriptions and requirements never changed;
38.3 Their position still existed;
38.4 They were placed on the timetable for 2020, as well as on the marking schedule for December 2020;
38.5 They had no knowledge of any new recruitment policy cited by the employer;
38.6 They were never consulted about the non-renewal of their contracts. They are not aware of any communication at the labour forum meeting which took place on 5 December 2019.They did not participate in those meetings. The labour forum meeting was held on 5 December 2019 .This is the date they received their letters which were dated 28 November 2019.
39. In King Sabata Dalindyebo Municipality v CCMA & other (2005) 26 ILJ 474 (LC), the Labour Court found that employees (cleaners) had established a reasonable expectation, and consequently that the dismissal was deemed to be fair in circumstances in which there were repeated renewals of the contract, their services as cleaners was still required, and the Municipality had sufficient funds to sustain the renewal. (The important principles to establish a reasonable expectation is the repeated renewal of contracts which indicate that services are still required and that funds are available.)
40. In this matter, the employer should have informed the employees about the resolution to no longer employ foreigners without scarce skills at least a month before giving employees letters of non-renewal. The labour forum meeting even if it took place it would have constituted short notice because it took place on 5 December 2019.
41. In the circumstances, I find that the employees had a legitimate expectation that their contracts will be renewed. The non-renewal of their fixed term contracts constitutes an unfair dismissal.
Appropriate Remedy for Unfair Dismissal
42. In terms of S193(2) of the Labour Relations Act, the Labour Court or arbitrator must require the employer to reinstate or re-employ the employee unless: The employee does not wish to be re-instated or re-employed.
43. In this matter applicants no longer wish to be reinstated, they seek compensation.
44. Taking into consideration the fact that applicants have been without work for more than 10 months. Four (4) months’ salary to each will be reasonable and fair in the circumstances.
45. The applicants should be paid each four months’ salary each calculated as follows; Gandiwa R23 732.75 months’ salary x4 months = R94 931.00; Muchayi R24 283.50 x 4 = R97 154.00 and Musengi R20 885.25 x 4 = R83 541.00.
46. I make the following award;
47. The non-renewal of the fixed term contracts of Givas Gandiwa, Dennis Musengi and Lindah Muchayi constitute an unfair dismissal.
48. The Respondent. Department of Higher Education is ordered to pay Givas Gandiwa an amount of R94 931.00 (Ninety-Four Thousand Nine Hundred & Thirty-One Rand) Lindah Muchai an amount of R97 154.00 (Ninety-Seven Thousand One Hundred & Fifty-Four Rand) and Dennis Musengi an amount of R83 541.00 (Eighty-Three Thousand Five Hundred & forty- One Rand) to be paid by no later than 29 January 2021.