Case Number: ELRC 311-20/21 FS
Province: Free State
Applicant: Ntabiseng Augustina Jobo
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 9 March 2021
Arbitrator: Minette van der Merwe
Arbitrator: Minette van der Merwe
Case Reference No.: ELRC 311-20/21 FS
Date of award: 09 March 2021
In the arbitration between:
Ntabiseng Augustina Jobo APPLICANT
Department of Education – Free State RESPONDENT
Applicant’s representative: Adv Motake (Instructed by Pehelo Modise Attorneys)
Respondent’s representative: ABSENT
E-mail: V.Gubuza@fseducation.gov.za; firstname.lastname@example.org; T.Tsunke@fseducation.gov.za ; SS.Moloi@fseducation.gov.za P.Chakela@fseducation.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This is the default arbitration award in the matter between Nthabiseng Augustina Jobo (the Applicant) and the Department of Education – Free State (the Respondent).
2. The dispute was referred to the ELRC (Education Labour Relation Council) in terms of section 186(1) and section 191 of the Labour Relations Act, 66 of 1995, as amended (“LRA”), and was heard and finalized on 22 February 2021 by means of digital platform (Zoom).
3. The Applicant was present and represented by Advocate Motake, instructed by Pehelo Modise Attorneys.
4. The arbitration continued in the absence of the Respondent. The matter was scheduled for 09h00, and at 09h30 I proceeded with the arbitration, as allowed for by section 138(5)(b)(i) of the LRA. The Respondent was duly and properly notified of proceedings on 1 February 2021, and to all the e-mail addresses as reflected on the cover page of this award.
5. Interpretation was required, and was provided by Mr Daniel Skhaza. The proceedings were recorded digitally, and copious notes were taken.
BACKGROUND TO THE DISPUTE
6. The matter was scheduled for arbitration in terms of section 186(1) and section 191 of the LRA as a dispute related to the unfair dismissal of the Applicant.
7. The Applicant is an Educator, and was employed in terms of the Employment of Educators Act, 76 of 1998, as amended (the “EEA”) on multiple fixed term contracts at Zama Primary School in Zastron.
8. The first fixed term contract was for October 2018 to December 2018 (3 months) with no written contract concluded. Thereafter, she was employed on another fixed term contract for January 2019 to June 2019 (6 months), which period was accompanied by a written contract. Thereafter she continued to work for another fixed term period of July 2019 to December 2019 (6 months), with no written contract concluded. She was duly paid for all these periods.
9. She then rendered her services for another and final fixed term period of January 2020 to June 2020 (6 months). A written contract was not concluded and she was not paid her salary for the entire period.
ISSUE(S) TO BE DECIDED
10. I had to determine whether the Applicant was dismissed in terms of section 186(1), or not.
11. In terms of section 74(2) of the Basic Conditions of Employment Act, 75 of 1997, as amended (the “BCEA”) a claim of unpaid salaries for the period January 2020 to June 2020 was consolidated with the main dispute of an alleged unfair dismissal.
12. The Applicant sought as remedy the payment of her outstanding salaries, as well as re-instatement.
SURVEY OF EVICENCE AND ARGUMENTS
13. Documentary evidence, titled “A”, was submitted into evidence by the Applicant. This was the fixed term contract for the period January 2019 to June 2019.
14. The Applicant did not call additional witnesses in support of her case.
15. The testimony is fully captured on the record of proceedings. I therefore do no deem it necessary to repeat it in this award. Only a brief summary is reflected herein.
Evidence from the Applicant:
The Applicant, Nthabiseng Augustina Jobo, testified under oath as follows:
16. She had been employed on multiple fixed term contracts with the Respondent. The first fixed term contract was for October 2018 to December 2018 (3 months) with no written contract concluded. Thereafter, she was employed on another fixed term contract for January 2019 to June 2019 (6 months), which period was accompanied by a written contract. Thereafter she continued to work for another fixed term period of July 2019 to December 2019 (6 months), with no written contract concluded. She was duly paid for these periods.
17. When she reported for the new school year in January 2020, the Principal, Mr Moleko, informed her that she was employed on another fixed term of six months for the period January 2020 to June 2020. She had accordingly rendered her services. She was not paid for the entire period, along with a colleague named Masonyane. She and Ms Masonyane queried the non-payment of her salary on multiple occasions with the Principal as well as the Respondent by visiting the office in Bloemfontein, where they liaised with Thato. During the aforementioned six-month period she continued to report for work daily and executed her duties as an Educator. Her last meeting with the Principal about the unpaid salary was on 1 June 2020, when she was accompanied by Ms Masonyane. On 8 June 2020 she and Ms Masonyane were called to the Principal’s office, where the Chairperson of the School Governing Body was present. They were informed that they should go home until the issue of their salary has been resolved, and Namba and Patswe was removed from the system. On 29 June 2020 she addressed a final letter to the Principal, to which she received no response. She then referred a dispute to the ELRC. Ultimately Ms Masonyane was paid for the six-month period, but the Applicant has not been paid to date.
18. She was employed on consecutive fixed term contracts in a vacant position. The Respondent did not appoint her to replace any Employee that went on retirement or had resigned. The Respondent argued that she was not paid because Employees, who were no longer employed by the School, were still erroneously on the system, being Namba and Patswe and until such time that they are removed from the system, she would not get paid as she was employed in one of their old positions. The Respondent’s statement is untrue as she had been employed for a number of months already by the time Namba and Patswe left the employment of the school
19. Some of the other Employees who had been employed on fixed terms has now been permanently employed by the Respondent at the School.
Evidence from the Respondent:
20. No evidence was tendered by or on behalf of the Respondent due to its absence from proceedings.
ANALYSIS OF EVIDENCE AND ARGUMENTS
21. The onus to prove the existence of a dismissal vested in the Applicant party. Only once the Applicant can prove the existence of a dismissal, does to onus to prove the fairness of the dismissal shift in the Respondent. The standard of proof is on a balance of probabilities. (section 192 of the Labour Relations Act, 66 of 1995, as amended (hereinafter the “LRA”)).
22. From the evidence led, the existence of a fixed term of employment and the knowledge thereof by the Applicant for the period January 2020 to June 2020, was not disputed, and was confirmed by the Applicant. She was thus aware that her employment was for a fixed term, and not of a permanent nature.
23. The Applicant earned R 262 899.00 per annum. The threshold at the time of January 2020 to June 2020 is R 205 433.30. As of 01 March 2020, the BCEA threshold will increased to R 211 596.30. It is clear that the Applicant earned above the BCEA threshold, and as such the Applicant does not enjoy the protection of section 198B of the LRA.
24. The inherent nature of a fixed-term contract of employment is such that the contract terminates automatically upon an agreed and identified date, or the occurrence of an agreed upon event. There is no requirement to conclude such a fixed term contract in writing, and a verbal agreement would suffice, as section 198B does not find application in this matter. The only requirement in law for a contract to be in writing is with the sale of land or in terms of section 198B or the LRA. In all other instances, a verbal contract has the same legal status of a written contract.
25. From the evidence led, the fixed term contract for the period January 2020 to June 2020 existed, and was legal and binding.
26. It was the evidence of the Applicant that she had not reported for duty after June 2020 and that she was not employed for another term after June 2020. It cannot be held that a dismissal had occurred where parties had agreed to a fixed term of employment, and such employment terminated on the occurrence of a specific event, which in this case was at the end of June 2020. The Applicant knew that her employment would terminate during June 2020, as no written or verbal fixed term contract was concluded for a subsequent period and no services were rendered by the Applicant to the Respondent after June 2020.
27. In light of the evidence led, and the analysis of the evidence, I find that the Applicant was employed for a fixed term, which fixed term was known to her, and that the fixed term of her employment had terminated during June 2020.
28. The employment relationship was terminated ex contractu and no dismissal took place.
29. It was the undisputed evidence of the Applicant that she had rendered her services as an Educator for the period January 2020 to June 2020, and was never paid. As such, she is entitled to her salary for the aforementioned period.
30. The Applicant, Nthabiseng Augustina Jobo was not dismissed by the Respondent, Department of Education – Free State, as her employment terminated ex contractu.
31. The Applicant is as such not entitled to relief in that regard.
32. The Applicant is entitled to her salary for the period January 2020 to June 2020, which remains unpaid to date. The total amount due to the Applicant is R 131 449.50 (one hundred and thirty-three thousand, four hundred and forty-nine rand, fifty cents), and is calculated as follows:
R 262 899.00 per annum / 12 months x 6 months = R 131 449.50
33. The amount stated in paragraph 32 must be paid to the Applicant by no later than 20 March 2021.
34. A cost order was sought by the Applicant; however, no order is made as to cost.
Minette van der Merwe