In the arbitration between
Andonganyung, Fedelis APPLICANT
Department of Higher Education and Training – Eastern Cape RESPONDENT
CASE NUMBER: ELRC 835-19/20EC
DATES OF HEARING: 13 October 2020; 6 November 2020; 2 February 2021; 17 and 24 February 2021
DATES CLOSING ARGUMENTS RECEIVED: 1 March 2021
DATE OF SUBMISSION OF OUTCOME
14 March 2021
NAME OF PANELLIST: M Huber
Details of hearing and representation
1. This matter was referred for arbitration to the Education Labour Relations Council in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (“the LRA”). It was postponed on the 13th October 2020, 6th November 2020 and the 2nd February 2021, and thereafter held virtually via Zoom on the 17th and 24th February 2021.
2. The Applicant, Mr. Fedelis Andonganyung, was represented by Ms. Angelinah Botshego, an admitted attorney at Lamola Incorporated. The Respondent, the Department of Higher Education and Training (Eastern Cape), was represented by Mr Leon van Staden, an admitted attorney from Joubert, Galpin and Searle Incorporated with Mr. Mlibo Malusi in attendance on behalf of King Hintsa TVET College, Butterworth.
Issue to be decided
3. The purpose of this arbitration is to determine whether or not the non-renewal of the Applicant’s fixed term contract of employment constituted a dismissal in terms of section 186(1)(b)(i) of the LRA, and if so, whether the dismissal was fair or unfair.
4. If the Applicant is successful, he is seeking retrospective reinstatement on a 12-month fixed term contract.
Matters that are common cause
5. The Applicant was appointed on the fixed term contracts referred to below, with King Hintsa TVET College, as a lecturer in Information Processing and Computer Practice:
5.1 First contract – 19/2/2014 – 31/12/2014 (10 and ½ months);
5.2 Second contract – 1/12/2015 – 31/12/2015 (12 months);
5.3 Third contract – for 12 months in 2016 (12 months);
5.4 Fourth contract – for 12 months in 2017 (12 months);
5.5 Fifth contract – 1 January 2018 to 30 September 2018 (9 months);
5.6 Sixth contract – 1 October 2018 to 31 March 2019 (6 months);
5.7 Seventh contract – 1 April 2019 to 30 September 2019 (6 months);
5.8 Eighth contract – 1 October 2019 to 31 December 2019 (3 months).
6. The Applicant transferred across to the DHET from 1 April 2015 (but remained working for the TVET college).
7. The Applicant is a foreign national.
8. The Applicant’s fixed term contract was not renewed after 31 December 2019.
Survey of evidence
10 Both parties submitted bundles of documents and the evidentiary status of each document was established.
11 A summary of the evidence of the parties’ witnesses is set out below. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
9. The proceedings were digitally recorded.
10. The Applicant testified about his qualifications, and his salary at the time of his last fixed term contract – R31 971.01 (gross) and R25 676.32 (nett).
11. He testified that in 2019, when his contract was not renewed, he had been expecting it to be renewed, based on the continuous renewals of the contracts that he had had with the employer and he referred to the document on page 4 of the Bundle, and read out this paragraph, with emphasis on the underlined portion:
“On the 1st April 2015 all TVET colleges migrated to the Department of Higher Education and Training, therefore, I would like to confirm that his services of employment are continuing on contract until 31 December 2016 and his contract will be renewed on an annual basis.”
12. The Applicant testified that he had been given no reason why his contract was not renewed, he had even gone to the HR officer to ask why, but until today, he had not been given a reason.
13. He testified that he had never been told that his services were poor, and had been given numerous awards, all of his students passed with good marks. In response to a question from his attorney “do you think it was reasonable in the circumstances that you expected the Respondent to renew your contract” the Applicant replied, “that is correct”.
14. The Applicant testified that he expected the respondent to renew his contract on san annual basis, meaning for a year.
15. Under cross-examination the Applicant explained that he recalled when he was employed in 2014, he was employed with another colleague who was South African, and she was employed permanently. HR had informed him that he was not appointed permanently because he did not have permanent residence, and when he obtained it, he would be made permanent.
16. When asked if he understood the reason for his appointment on a fixed term contract and why he was not appointed permanently, the Applicant said that he had not been given that information at all, he was just issued with a contract for a year.
17. When asked if it was correct that he did not have permanent residence at the time his contract was not renewed, he confirmed that he did not have permanent residence at that time and expected his contract to be renewed for a year.
18. In response to who had informed him that when he obtained permanent residency, he would be appointed permanently, he said it was Ms Jele, the HR Manager at the time. It was pointed out that this was not part of his examination in chief, and it was disputed that there was any indication given to him that he would be appointed permanently. The Applicant responded that at the time she issued the contract to him she said that he would not receive any further contracts until he got permanent residency.
19. It was confirmed that the Applicant had obtained his permanent residency last week (i.e., on the 29th January 2021) and that he did not have this before the 29th January 2021. He responded that he had submitted an application for permanent residency when his contract was terminated (i.e., not renewed). Prior to the permanent residency he needed to renew his visas when they expired. The Applicant confirmed that when he started at the College he was on a working visa that he had to apply to be renewed, so that he could remain in the country ‘working legally’.
20. The Applicant testified under cross-examination that he had a scarce skill, the entire course was about to be terminated from the college, the students were failing, and they head hunted him, and when he arrived the results changed. He testified that it is a scarce skill, and that particular subject is critical.
21. The Applicant was asked if there were any South African citizens that could fill the function and he replied that when he first applied there were lots of SA candidates, but he got the job. He testified that at the time of the non-renewal of his contract there were no SA citizens that could lecture in the subject to his knowledge.
22. The Applicant was asked how he knew that his contract would be renewed each year, and he said that HR had told him that. Regarding what happened when his contract was renewed, the Applicant said that the HR Manager had told him verbally that from that date he would not get any more contracts, his contract would be renewed automatically annually, and this is why he did not have any other documents from the college, the last one was March 2016, and this was why he thought the contract would be renewed on an annual basis.
23. The Applicant said that he could not recall anyone sitting down and discussing his contract with him when it was renewed. He said that he received letter from HR (this was how he was informed of the renewals).
24. The Applicant replied to a question under cross-examination that he did not recall having a meeting with Mr. Mbengo to discuss his contract, and he should come and testify, but he did not recall, to the best of his ability.
25. He said that there wasn’t a meeting with the employer, only one meeting which was regarding back payment owed to him from 2015 to July 2019, and he went to HR, but there was nothing they could do so he went to Mr. Mbengo’s office, and that is why he went to Mr. Mbengo.
26. The Applicant said that he did not recall having a meeting with Mr. Mbengo about his contract not being renewed and confirmed that they did not meet.
27. The Applicant was referred to page 3 of his Bundle, where he was appointed on a fixed term contract from 1 January 2015 to 31 December 2015, specifically clause 3 which states “You are further informed that despite the contents of this Contract, no expectations of renewal is created.” The Applicant replied that what he knows for sure is that his contract was renewed. He said that the sentence did not make sense because it said, ‘don’t expect renewal’ and then they went on and renewed it.
28. The Applicant confirmed that he did receive that letter, he did read through it, and he did see paragraph 3. He said that he did not go to the Acting Principal who signed it to query this clause because HR had already told him that there would be an annual renewal.
29. The Applicant testified under cross-examination that when he received the letter on page 6 of the Applicant’s bundle (renewal of his contract for 3 months from 1/10/2019 to 31/12/2019) and the letter stated that “no expectations of any nature whatsoever is been created in the minds of either parties that this contract will be renewed or extended upon its expiry” he went to HR, and spoke to Maxwell, and asked why the letter stated that, but he received no response, and he went to his lawyer, who wrote to them, and then to the ELRC.
30. The Applicant said he received that letter on the 1st October 2019, he went to them on their invitation, HR invited him, and his campus manager had told him that HR has a letter for him, and he went to HR to get the letter. They did not tell him why they were not renewing it and had not told him to date.
31. In reply to the Respondent’s version that Mr. Mbengo had a meeting with him to discuss it, he replied “not that I am aware of”.
32. The Applicant was referred to the DHET Recruitment and Selection Policy, page 17, 2.3.4(a), and read it into the record. The Applicant confirmed that he did not have a permanent residence permit until ‘last week’ (29 January 2021). He was referred to paragraph 2.3.4(b) and was informed that the Arbitrator could not be expected to accept that there is no-one in SA with the skills to fill his function. The Applicant said that if his permanent residence permit was considered, it stated “scarce skills”. It was clarified that this was not what was put to him, it was that it was not correct that there was no SA citizen who had the skills to carry out this function.
33. It was clarified that the letter on page 4 of the Applicant’s bundle was a confirmation of employment letter.
34. The Applicant testified under cross-examination that he had signed the letter on page 5 of the bundle and had not stated that he was signing it under duress because he still needed his job, and he went to his lawyer after that. Documentary evidence was submitted to show that the Applicant had consulted a lawyer, who then raised this with the College.
35. The Respondent called one witness, Mr. Isaac Mbengo, Deputy Principal of King Hintsa TVET College, in Butterworth, Eastern Cape. He has been the Deputy Principal of Corporate Services since August 2015. At the time he started at the college, there were two foreign nationals employed at the College, one was a general assistant, employed in cleaning services and the other was the Applicant, a lecturer.
36. When he arrived at the college, the Applicant had a valid working permit which was valid for a certain period and would need to be renewed. The practice of the College was that foreign nationals were always appointed on fixed term contracts, because they could not be appointed permanently, based on statute (law) – only permanent residents could be appointed permanently.
37. When fixed term contracts need to be renewed, the college always communicates verbally with the employee first and then sends a written confirmation.
38. Mr. Mbengo testified that there were interactions between him and the Applicant regarding the renewals of his contract, and the Applicant mostly engaged with him, as the HR Manager (corporate services). Mr. Mbengo stated that he did have meetings with the Applicant and the Applicant had not raised issues regarding the renewal of his contract, but he had still been in the employ of the college. Mr. Mbengo said that he had not heard of any undertaking being given to the Applicant that he would be appointed permanently if he received permanent residence, and the Applicant had never raised it with him.
39. Mr. Mbengo said that he was part of management, and there had been no discussions at management level regarding permanent appointment of the Applicant nor was there any communication in this regard. He testified that if anyone had made that sort of comment, it would need to be put in writing and escalated to Council for their agreement.
40. Mr. Mbengo said that Ms Jele was the former HR Manager, who left in 2017 and she had not informed him of this, and he tried to contact her but could not reach her.
41. Mr. Mbengo testified in respect of page 3 of the Applicant’s bundle, specifically clause 3 which states “You are further informed that despite the contents of this Contract, no expectations of renewal is created.”
42. Mr. Mbengo testified that page 4 of the Applicant’s bundle is a confirmation of particulars of employment, which was from Ms. Jele, the HR manager at the time, signed by N Balfour, the College Principal. Mr. Mbengo testified that the nature of the letter was to confirm particulars of employment, in this instance the letter confirms that the Applicant is in employment, and it would be used for his work permit, as he needed to confirm that he had a job.
43. However, letters speaking of appointment would be signed by the accounting officer, being the Principal, and confirmation of employment letters could be signed by the HR manager. He stated that the letter did not mean that the contract would be renewed on an annual basis forever, it simply means that he is employed, and it would be for his work permit.
44. Mr. Mbengo testified that after the 31st December 2016, when the Applicant’s contract was renewed, there would always be discussions with him in this regard, and he was personally involved.
45. Mr. Mbengo testified about the documents on pages 5 and 6 and was asked why there were two letters. He stated that the first letter was to contract with the Applicant for a specific period and the second letter was further emphasising that although he had a contract he should be aware that it was coming to an end, because there had been a change in scenario that the contract would not be renewed, and the letter emphasised that. He said that he discussed the letters personally with the Applicant. He said that before the 19th September 2019 he had made the Applicant aware of this and he had not picked up any uncomfortable attitude from the Applicant. He confirmed that he had discussed the non-renewal and that the role would be advertised, and that he had told him it was because they had enough candidates of SA citizenship to apply for the position.
46. Mr. Mbengo said that when they received applications from potential members, they put these in their data base, so they could use them if they need to fill a temporary role, for example someone who had gone off on maternity leave, and they could do this without advertising the post. That data gave an indication that there were people who were interested in this position, and there were enough competitors to take up the post, and the post was advertised, all the recruitment steps took place, they had 40 candidates of similar profile that were interested in the post. Someone was appointed into the post, who was a South African citizen. The person was appointed on a permanent contract, but there was a delay in the appointment because there was a dispute lodged around the recruitment process.
47. Mr. Mbengo testified that the Applicant had shown understanding when he spoke to him, and regarding how the college would be moving. He had always been appreciative that he was in their employ.
48. Mr. Mbengo stated that the Applicant was not the only person in SA who could fill the function, they did have potential candidates for that position. He testified regarding page 8 of the Applicant’s bundle, which he testified was clarification on managing of contracts in terms of scarce skills and not so scarce skills – the mention of Chiquita was the general assistant, and when she needed to take leave of absence, someone needed to take her place.
49. Mr. Mbengo testified that the Applicant did not have a scarce skill.
50. Mr. Mbengo referred to page 25 of the Respondent’s bundle and confirmed that the Applicant had signed the document that he would be appointed on a 3 month contract and part of that acceptance was that no expectation of renewal was created. He said that when he had the discussion with the Applicant about this there were definitely no objections. He said that he was always clear to the Applicant that there was no expectation of renewal and the Applicant was always appreciative that he was in employ.
51. Mr. Mbengo testified on the Recruitment and Selection Policy of the DHET, signed on the 29th May 2019, and confirmed that the College used the approach set out in paragraph 2.3.4, paragraph b, and that the college would appoint a suitable SA citizen who was capable of performing the job if there was one.
52. Mr. Mbengo testified that he could not understand the basis for the Applicant’s claim that he had an expectation to a 12-month renewal of his contract, because ‘we were always clear regarding the start of the contract and the end and also on the basis that they would not renew it, they needed to advertise the position’.
53. Under cross-examination, Mr. Mbengo agreed that if the Applicant were in possession of permanent residence and a valid work permit, and a scarce skill, he could be considered for employment (page 17, paragraph C of the Policy) – then the Applicant was permitted to apply for the role, in a competitive process with other applicants, and he would have been able to apply for the permanent post.
54. Mr. Mbengo confirmed that he is the Deputy Principal of Corporate Services, and that he manages HR. He confirmed that he recommended the Applicant’s contract, but the accounting officer is the only person who can appoint people, and that is the Principal.
55. Mr. Mbengo explained the process that was followed for recruitment and selection into the role that the Applicant had filled, and that because there was a dispute lodged, the policy is that the appointment cannot be confirmed until the dispute is resolved. Therefore, a temporary appointment was made while the dispute was being addressed .
56. Mr. Mbengo could not confirm the exact qualifications of the person appointed into the role, other than that they were qualified to fill the role.
57. Mr. Mbengo testified that when a fixed term contract with a foreign national needed to be renewed, then the college would engage with them verbally and in writing.
58. Mr. Mbengo confirmed that foreign nationals at the college were always appointed on fixed term contracts because they needed to renew their work permits. If a foreign national had a permanent residence permit and could work permanently, then they would need to offer as scarce skill.
59. Mr. Mbengo stated that if the Applicant had acquired permanent residence in August 2019 his contract would not have been renewed because he would have had to compete for the role with SA Nationals.
60. With regard to the letter on page 4 of the Applicant’s bundle, Mr. Mbengo confirmed that it was not addressed specifically to Home Affairs, because the Applicant could use it to confirm he was employed, and it was issued to him for this purpose.
61. Regarding scarce skills, Mr. Mbengo stated that the college uses the same criteria as that used by Home Affairs.
62. Mr. Mbengo confirmed that he had received no complaints about the Applicant’s services while employed.
63. Regarding the letter on page 4 of the applicant’s Bundle, which states “his contract will be renewed on an annual basis” Mr. Mbengo was asked if this did not create an expectation of renewal on an annual basis as long as the college exists, and Mr. Mbengo replied that this was incorrect, that the letter was simply confirmation of employment by the HR Manager and the only person who signed contracts of employment is the Principal
64. This matter has been referred in terms of section 186(b)(i) of the LRA:
‘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; …
65. The Applicant therefore needs to prove that he reasonably expected the Respondent (the employer) to renew his fixed term contract, on the same or similar terms. It is common cause, in this matter that the Respondent ‘did not renew [the fixed term contract] at all’.
66. The Applicant clarified that this referral was not in terms of 186(b)(ii):
“(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.”
67. There was therefore no claim by the Applicant that he had a reasonably expectation of permanent or indefinite appointment. The Applicant’s claim is that he had a reasonable expectation of renewal of his fixed term contract, specifically, a 12-month contract, but it was not renewed.
Analysis of evidence and argument
68. The Applicant’s expectation of renewal is based on the fact that his contract was ‘automatically’ renewed on a number of occasions and that he received a letter on the 16th March 2016, signed by the Principal of the College, Ms. N Balfour, which stated that his contract would be renewed on an annual basis.
69. Documentary evidence shows that the Applicant was appointed on a fixed term contract for almost 12 months (his first appointment) which ended on the 31st December 2014, and this letter confirming his appointment was signed by the College Administrator (the acting Principal at the time, Mr Jacobs). His full contract of employment, pages 1 to 4 in the Respondent’s bundle, was signed by the College Council Chairperson, together with the Applicant.
70. The second appointment was reflected in a letter to the Applicant dated the 12th December 2014, signed by the College Acting Principal, Mr. Jacobs, with a new appointment for 12 months, and this letter states in the first paragraph that the College Council had decided to appoint him, with the 12 month period stipulated. In this letter, there is a clause warning that ‘no expectations of renewal are created’.
71. Whilst the Applicant has correctly argued that the inclusion of a clause of this nature does not mean that an expectation of renewal could not have been created, and this is accepted, it is noted at this stage that the Applicant’s contract for the first two years was not on the basis of an ‘automatic renewal’ – there was a process followed whereby the appointment for a second 12-month contract had to be approved by Council, and only then was the appointment confirmed.
72. However, in 2016 and 2017 there are no further letters indicating that the Applicant’s contract had specifically been renewed. As per the evidence accepted by the parties, on 1 April 2015 the Applicant’s contract was transferred across to the Department of Higher Education and Training, and he signed acceptance of this transfer on page 16 of the Respondent’s Bundle. It is common cause that the Applicant’s contract was renewed for the year of 2016 and 2017.
73. The Applicant provided evidence, in the form of the letter on page 4 of the Applicant’s bundle of evidence, that on the 16th March 2016, he was provided with a letter titled “Confirmation of employment: Fedelis Andonganyung”, which confirmed his date of appointment, his employment status, that his contract was terminating on the 31st December 2016 “and his contract will be renewed on an annual basis”. The Applicant testified that it was on this basis, coupled with the renewals of his contract, that he reasonably expected his contract to be renewed, annually.
74. This letter was signed by the “accounting officer”, being the Principal of the school, who, as per Mr. Mbengo’s testimony, was the person who was authorised to sign appointment documents. It is therefore accepted that at this stage, the Applicant was informed, by someone with authority, and with the power to confirm appointments / contracts, that his contract would be renewed annually, and it is objectively reasonable that he would have had an expectation of annual renewal at that point in time. This would of course have been subject to his having a valid work permit.
75. However, the Applicant failed to explain why his fixed term contract, in 2018, was not automatically renewed, or why the contract renewal ran from 1 April 2018 through to 30 September 2018 (a 6 month contract), followed by a further renewal through a 6-month fixed term contract (1 October 2018 to 31 March 2019), followed by a further 6 month contract (1 April 2019 to 30 September 2019) and then a final three month contract.
76. This contradicts his own evidence that he expected his contract to be renewed annually, based on the letter provided to him in March 2016. The evidence is, as a matter of fact, his contract was not automatically renewed, annually, from 2018 until such point as his contract was not renewed at all, on 31 December 2019.
77. The Applicant did not give evidence to explain these shorter renewals, and why the automatic annual renewals that he claims he had a reasonable expectation of, did not in fact occur, before 2016, and after 2017. The Applicant did not give evidence to explain why he still had an expectation of his contract being renewed automatically every 12 months, given that this was not in fact occurring, from 1 April 2018.
78. The Applicant signed a document (on page 9 of the Respondent’s Bundle) accepting his 6-month fixed term contract of 1 April 2018 to 30 September 2018, which indicates that he was aware of the 6-month fixed term contract and agreed to it. There was therefore no 'automatic renewal’ of his 12-month contract. Whilst there is no further signed document reflecting the Applicant’s agreement to the further six month fixed term contracts of 1 October 2018 to 31 March 2019 and 1 April 2019 to 30 September 2019, these were accepted as common cause at the outset of the proceedings.
79. The Applicant did not indicate that he objected to these six month fixed term contracts, nor did he voice any dissatisfaction with them. He therefore accepted them, and whatever reason was provided to him for the shorter duration contracts.
80. Of significance, to reiterate the above, the Applicant did not provide an explanation as to why his contract was renewed every 6 months from 1 April 2018 until 30 September 2019; and did not explain why he would now have a reasonable expectation that his contract would be renewed, automatically, on the basis of 12-month fixed term contracts, when his contract had in fact been for periods of six months, renewed for 3 contracts, prior to the final 3 month fixed term contract that he then disputed.
81. Mr. Mbengo testified that he had engaged directly with the Applicant each time his contract was renewed, verbally, and then the renewal was confirmed in writing. The Applicant testified that he could not recall these engagements, and when pressed under cross-examination, said that they had not occurred, and that Mr. Mbengo would need to come forward and testify on this. When Mr. Mbengo testified to this effect, the Applicant did not dispute his version, with cross-examination. The Applicant also confirmed that he had been told that he needed to go to HR to collect the letter (regarding the final extension of three months) and that he had gone to HR but they did not explain the reason why his contract was not being renewed, at that point, and that this remained unexplained up to the point of the arbitration hearing.
82. However, whilst the Applicant explained that he signed the two letters given to him on the 1st October 2019 because he needed his job, the letter on page 6 of the Applicant’s bundle explains the reason for the non-renewal as follows:
“Please be advised that your contract will not be extended any longer than this period, instead the post will be advertised.”
83. The Applicant was therefore in fact made aware that the post would be advertised, and his contract would therefore not be renewed, on this basis. So he was aware of the reason for the non-renewal. It is common cause at that stage that the Applicant was on a temporary work visa / permit, which needed to be renewed from time to time, and it was clearly understood that this was the reason for the Applicant being appointed on a fixed term contract.
84. On the basis that the Applicant did not challenge or contest the Respondent’s evidence of Mr. Mbengo, specifically that he had explained the reason for the intended non-renewal of the final fixed term contract to him, and that each renewal of his fixed term contract was explained to the Applicant; together with the fact that the written document, which caused the Applicant to challenge the non-renewal of his contract, specifically stated the reason for the non-renewal, I accept the Respondent’s version, that the Applicant was made aware of the reasons each time his contract was renewed, as well as the reason why it would not be renewed after 31 December 2019.
85. I do not accept that the Applicant was not aware of the reason why his contract was not being renewed, and I do not accept his version that his fixed term contracts were not explained to him before he agreed to them. I also accept the Respondent’s version that they explained that there was no guarantee of renewal, verbally as well as in writing and that the Applicant understood this.
86. The Applicant testified that he was not concerned about the clauses in his contracts stating that he should not expect his contracts to be renewed because of the assurance that was provided to him in the letter issued to him in March 2016. This may have been correct up until the end of 2017 when his contract was renewed automatically, however, when the Applicant’s contracts were not in fact renewed automatically every 12 months, as was the case from 2018, the Applicant should have started questioning his understanding of these automatic renewals, given that they were not occurring, and given that his contract was being renewed every 6 months, not from January through to June, and then July to December, but from April to September, and October to March – this should have caused the Applicant to question his expectation and realise then that the Respondent was not acting in a manner that could lead to him expecting automatic renewals of 12-month contracts.
87. I accept that the Respondent informed the Applicant of the reasons why the Applicant was placed on 6-monthly contracts in 2018. If the Applicant had not known the reason for these shorter duration contracts, he would have questioned this, and either disputed them at the time, or, as he did, agreed to them once he was aware of the Respondent’s reason for the shorter duration contracts.
88. It is significant that the Applicant, bearing the onus of proving he had a reasonable expectation of renewal of his contract, and that his expectation was for renewal on a 12-month contract, failed to explain why his last 4 contracts had been 3 x 6-month contracts, and then a 3-month contract, and why he still had an expectation of a renewal on a twelve month contract by the Respondent.
89. The reasonable explanation is that the Applicant was being alerted to the fact that there was in fact no guaranteed renewal of his contract, and the 3-month final renewal was a form of ‘notice’ to him that his contract would not be renewed after that.
90. The Labour Appeal Court in SA Rugby Players’ Association (SARPA) & others v SA Rugby (Pty) Ltd & others; SA Rugby Pty Ltd v SARPU & another confirmed that the test for establishing whether an employee had a reasonable expectation that his/her fixed term contract would be renewed is an objective one –
“ The appellants carried the onus to establish that they had a “reasonable expectation” that their contracts were to be renewed. They had to place facts which, objectively considered, established a reasonable expectation. Because 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 his or her fixed-term contract on the same or similar terms.”
91. This test remains the correct one to apply when determining whether an employee’s expectation of renewal of a fixed term contract is reasonable or not.
92. The late Steenkamp, J, in ARMSCOR Dockyard, a division of ARMSCOR SOC v the CCMA and Others (Case no: C 853/15) confirmed the test and enquiry that an Arbitrator should make when determining whether a reasonable expectation of renewal exists, as follows (my emphasis), [these cases were referred to by both parties in their closing arguments]:
“ The arbitrator also considered Auf der Heyde v University of Cape Town (2000) 21 ILJ 1758 (LC) para ) in which the court, in turn referred back to Dierks v University of South Africa ( 4 BLLR 304 (LC)):
“The gravamen of s 186(b) in the context of what an employee would be entitled, all other things being equal, reasonably to expect at the conclusion of the specified period of a fixed term contract was examined by this court in Dierks v University of South Africa. The issue for determination in that matter bore a basic similarity, insofar as the interpretation and applicability of s 186(b) of the Act was concerned, to this case… Citing Olivier with apparent approval, the court (Oosthuizen AJ), noting that the concept of ‘reasonable expectation’ as expressed in s 186(b) has no statutory definition, characterised it as including, essentially, ‘an equity criterion, ensuring relief to a party on the basis of fairness in circumstances where the strict principles of law would not foresee a remedy’. Whether or not the employee’s expectation was reasonable, the court commented, must be deduced on the basis that ‘apart from the subjective say-so or perception there is an objective basis for the creation of his expectation’. This must be assessed on an analysis of the facts and relevant circumstances bearing upon it.”
And in Dierks the court held that the surrounding circumstances must be evaluated, including –
“the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose of or reason for concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice and nature of the employer’s business.”
93. In applying this test, the following is relevant to the Applicant:
89.1 The Applicant was in fact appointed on a number of fixed term contracts that had been renewed by the Respondent;
89.2 The reason for the contracts being on a fixed term basis is relevant, because the Applicant was aware of the reason, and it was understood and accepted by him – specifically he is a foreign national, and needed to renew his work permit from time to time;
89.3 The Respondent provided uncontested evidence that it placed all foreign nationals on fixed term contracts, and that there was one other employee that was on a fixed term contract, also a foreign national;
89.4 The Applicant received a letter in 2016 stating that his contract would be renewed annually, it was not a contract or an appointment letter, but it was signed by the Principal of the College and the Applicant would have reason to believe, at that time, that it was correct, and this was supported by the fact that his contract was renewed automatically for 2016 and 2017;
89.5 In 2018, the Applicant was placed on 6 monthly contracts, and the Applicant did not explain the reason why his contracts were of shorter duration, nor did he explain why his contracts were not ‘automatically renewed’, instead he received confirmation of these fixed term contracts, which he was required to accept, and he received a final 3 month fixed term contract;
89.6 The Applicant was therefore not on 12-month fixed term contracts from 2018, and his contracts were not automatically renewed – this ‘automatic renewal’ applied to the years 2016 and 2017 only;
89.7 The Applicant was in fact made aware of the final non-renewal of his contract, in writing, and verbally, and the reason for this non-renewal was set out in the letter issued to him, and signed by him;
89.8 The Respondent’s evidence was not challenged, and was supported by the reduced renewal periods of the Applicant’s contracts – and it is therefore accepted that the Applicant was at all times made aware that his contract would not be automatically renewed, and he was made aware that it would not be renewed and that an appointment process to fill the role permanently would be carried out;
89.9 The Applicant was given reasonable notice, in the form of a final 3-month fixed term contract, that his contract would not be renewed further;
89.10 The Respondent’s Recruitment and Selection Policy corroborated the evidence provided by the Respondent regarding the appointment on permanent contracts of either SA citizens, or foreign nationals where there were no other SA citizens who could fill the function, or where the foreign national had scarce skills;
89.11 The Respondent provided admissible evidence that there were SA nationals who could permanently fill the role that the Applicant had been filling on a temporary basis, and that the role would be advertised in accordance with its Policy. This was confirmed through the evidence submitted that there were 40 applicants who applied for the role when it was advertised;
89.12 Although at the time of non-renewal the Applicant did not have permanent residence status, at the time of the advertisement he did have, and he was entitled to apply for the role, and compete with other applicants in line with the DHET Recruitment and Selection policy.
94. The evidence and argument put forward regarding whether the Applicant was informed that he would be appointed permanently at any stage has not been considered in this matter, on the basis that the Applicant’s claim is specifically that his expectation was for renewal of a fixed term contract for 12 months, and not on an indefinite or permanent basis. This evidence was therefore not relevant to this matter.
95. Further, the argument that the Respondent was acting in a manner that was contrary to social justice and was unfair towards foreign nationals is not relevant to this matter and does not take this matter any further. The common cause facts are that the Applicant was appointed onto a fixed term contract because he is a foreign national and he did not have permanent residency until after his fixed term contract was not renewed, and the question to be answered is whether the Applicant had a reasonable expectation to renewal of his fixed term contract, when it was not renewed.
96. The objective facts, as set out above, show that the Applicant did not in fact have a reasonable expectation that his contract would be renewed at the time that it was not renewed, and the non-renewal of his contract on 31 December 2019 was on the basis of the expiry of a fixed term contract, and does not constitute a dismissal.
97. Based on the above, the finding is that the Applicant did not have a reasonable expectation that his fixed term contract would be renewed, and the non-renewal of his contract does not constitute a dismissal in terms of section 186(1)(b)(i) of the LRA.
98. The Applicant has not shown that there has been a dismissal in terms of section 186(1)(b)(i) of the Labour Relations Act.
99. The matter is dismissed.
100. No order is made in respect of costs.
SIGNED AT MAKHANDA ON THIS 14th DAY OF MARCH 2021.