PSES995-19/20NC
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PSES995-19/20NC
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Award Date:
11 March 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM ONLINE PLATFORM
Case Number PSES995-19/20NC
In the matter between
G. DAGADU, S. GAONAKALA, T. KGASI
Applicants
and
DEPARTMENT OF EDUCATION – NORTHERN CAPE
Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This arbitration was held via Zoom Online Platform on 11, 12, 22 and 23 February 2021. The applicants, Godwin Dagadu(Dagadu), Steward Phenyo Gaonakala(Gaonakala) and Thema Frank Kgasi(Kgasi)(deceased), were represented by Mrs. S. C. du Plessis , a practicing attorney. The respondent, The Department of Education Northern Cape, was represented by Mr.G..B. Pisane, its senior education specialist, labour relations unit. The parties agreed to submit written closing arguments by no later than 2 March 2021.
THE ISSUE IN DISPUTE
2. I must decide whether the applicants were dismissed and, if so, whether the dismissals were unfair.
THE BACKGROUND TO THE DISPUTE
3. The applicants worked for the respondent as educators at Colston intermediate School on fixed term contracts of employment until their services terminated on 31 December 2019.
4. Both Dagadu and Kgasi had so worked on 2 contracts of 1 year duration each while Gaonakala was so employed for 4 months.
5. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
6. This matter concerns an allegation of unfair dismissal in terms of S186(1) (b) of the Labour Relations Act (LRA).
The section reads as follows:
“(b) Dismissal” means that an employee employed in terms of a fixed term contract of employment reasonably expected the employer -
(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
7. The applicants contend that they had a legitimate expectation that their contracts of employment would be renewed in 2020.
8. The contention of the respondent is that there was no such legitimate objective expectation and that there were valid reasons for not renewing the contracts of employment of the applicants.
SUMMARY OF EVIDENCE AND ARGUMENT
9. Both parties submitted bundles of documents. Dagadu and Gaonakala testified under oath for the applicants. Kkomokso Gloria Pelesi(Pelesi), the Chief personnel officer, Onxlametse Maele(Maele), the department head intermediate and senior phases, Thandiwe Gladys Morake(Morake),the principal and Mr. Ngakaemang Thole(Thole), the circuit manager, testified under oath for the respondent.
10. Dagadu and Gaonakala were employed at Colston Intermediate School(Colston) on fixed term contracts which terminated at the end of December 2019. Dagadu had been so employed for two years and Gaonakala for four months. The respondent disputes that the applicants had been dismissed.
The evidence for the applicants:
11. The applicants had not been aware of their posts having been advertised. They were however given an opportunity by the department head, Mrs Selwe(Selwe), to submit their application.
12. The applicants were given letters in November 2019 in terms of which they were informed of the termination of their contracts in December 2019.
13. When Dagadu was first appointed, Morake informed him that he would be made permanent. Dagadu had written a letter of complaint to Thole about how Morake bullies the teachers and that they would get a letter of termination were they to express dissatisfaction about how they were treated. The letter was signed by Gaonakala, Dagadu and Kgasi, Plaaitjie and all temporary educators about being laid off.
14. Gaonakala said that Morake had a low self esteem. He felt intimidated at some stage as she would say that he was hanging out with the wrong crowd when she saw him with Dagadu and Kgasi.
15. Morake had told Gaonakala that he would still be employed at Colston the next year. He testified that the applicants had nonetheless applied for the post on invitation from the head of department Selwe.
16. Dagadu had testified on the other hand that he had not in fact applied on invitation from Selwe as he had rather challenged the advertisement of the post.
17. Gaonakala also testified that once the principal knew that the applicants had complained to the circuit manager she was furious and decided to terminate their contracts.
18. Thole had promised to look into appointments for Dagadu and Gaonakala at other schools in his circuit. This was after he was furious about Morake and after looking at their transcripts.
19. Morake had never given Gaonakala the reason for his termination and it looked like she had a personal vendetta against him.
20. Only Dagadu and Mabilo qualified for conversion and had submitted their documents to Morake according to whom it had been forwarded to the district office to forward to the head office.
21. Mabilo had informed Dagadu that she had already received her conversion in March 2019 while on the other hand he had not heard anything. He had completed his form for conversion already in March 2018 but had not heard anything and was terminated in 2019.
22. When he had followed up with labour relations regarding his conversion application he was told it was in progress and that he must just wait. There had been enough time to take a decision on his conversion. In terms of circular 40 of 2019 which was in circulation, all temporary educators in substantive posts should be retained and should not be replaced by any other temporary educator.
23. After they had been asked questions based on this circular, Morake asked them to submit their C.V’s which they did. They did apply. Thereafter the department head informed them that Morake had said she was not going to appoint them. They accordingly lodged a complaint with the circuit manager and are still awaiting a reply.
24. At the end of 2018 their contracts were renewed and they were given assumption forms to complete as the department does not have any application for renewal forms.
25. Dagadu’s post profile then was to teach life orientation, social science and economic management science. He is no longer working at the school because the principal is a bully and the applicants complained about her treatment of them. When he became the secretary of the Educators Union of South Africa he played his part and noticed financial mismanagement at the school. In terms of collective agreement 4 of 2018, which encompasses the aforesaid section of the LRA, Dagadu had applied for conversion to a permanent post. The principal had assured Dagadu that she would do what she could to ensure his conversion to a permanent position. She had however failed to submit his documents to the head office.
26. Gaonakala had also been informed that he was in a substantive vacant post and that it was possible that he be made permanent. New temporary staff were appointed after the applicant’s contracts had terminated notwithstanding the applicant’s having the necessary qualifications and experience.
27. Under cross examination Dagadu confirmed that Morake does not do appointments but that he was appointed by the department. He also interpreted the letter reminding him of the termination of his contract as the letter terminating his contract.
28. He had applied for conversion in March 2018 while the collective agreement 4 of 2018 is dated September 2018. Dagadu disputes the documents inferring that he had not started marking timeously and indicating that he had not submitted his marks timeously. He had submitted all his tasks on time.
29. The contents of the document in the respondent’s bundle on page15 is fabricated as he had never been invited to a meeting by the SMT. Morake had insulted him in her office and he walked out. It is a lie that he wanted to fight her. That he hated Morake as he wanted a romantic relationship with her is a lie. He would never propose to Morake and this was just a story to throw him out of the school.
30. Thole had said that the post would be readvertised. When it was put to Dagadu that the circuit manger cannot, he testified that the principal manipulates the situation. Dagadu did not apply for the post as it had not been readvertised.
31. When it was put to him that he had seen the advertisement from a friend he said he had had not applied as he complained to the secretary how the advertisement was done.
32. It was put to Dagadu that he was oblivious of his contract terminating because he disrespected management and because of the issue with the marks and not because the principal is a bully. He denied this. He matched the post profile when he was appointed and for the two years he was at Colston.
33. He was never charged regarding his conduct or non compliance. He had not been charged regarding non compliance, moderation and not doing his duty.
34. Dagadu was aware that a teacher, Maruda, had only a matriculation certificate and had been appointed without a SACE certificate. He also did not have a problem with Zimbabweans but had a problem with the system. Dagadu does have a SACE certificate but this had never been requested from him. If it had been requested from him he would have provided it.
35. Gaonakala had been appointed into the post which had become vacant when a teacher left the school. He signed a contract for four months and was promised renewal. Five teachers including the applicants got letters terminating their contracts on 11 November 2019. He got the circular 40 less than a week from the closing date of 31 October 2019 stipulated therein. Selwe had informed the applicants that they could apply for the posts which, according to Gaonakala, they did.
36. They were under the impression that their contracts would be renewed in January 2020. He was in a substantive vacant post and was told by the principal that he would still be employed the next year. He could also match the post profile of the school although he was still studying at the time. His post profile was Setswana and Social Sciences
37. When they got the circular 40 they showed it to the department head, Selwe, and she said they could submit their qualifications and documents and she would submit them. Gaonakala matched the post profile of Setswana and social sciences.
38. He had not been appointed on a permanent basis wherever he taught as he is a student and unqualified. The minimum requirements to teach is a Bachelor’s degree or diploma, a SACE certificate, a South African identity document.
39. His academic transcripts from UNISA show that he does not have these qualifications but was in possession of a provisional registration with SACE.
40. He was still studying and his SACE licence was still in good standing.
41. Thole had spoken to him regarding scripts not marked. He had said he would submit them as soon as he was done. He was still within the deadline at the time. He was unable to complete his marking as he had fallen ill on the last day of school. He submitted a doctor’s certificate.
42. He had also not objected to the written warning which was on his file as he showed respect to the principal who was also intimidating. The letter of apology he wrote were the words the principal made him write.
The evidence for the respondent:
43. Pelesi was responsible for the appointment of non SACE educators and transfers and acting appointment and conversion of temporary educators to permanent posts. She is well conversed with appointments. The principal advertises the post and places it on notice board. Applicants can apply to the principal and submit all documents to her.
44. These applications are sorted by the school governing body and the principal and they do the shortlisting and interviews. They then recommend the best candidate to the district directors.
45. In doing so, under qualified and unqualified teachers are not considered as they must have a SACE certificate. An unqualified teacher with a provisional SACE certificate cannot qualify for conversion. If an applicant is professionally qualified and proves he has applied for the PGCE then that contract with the unqualified teacher swill end. The professionally qualified person will be appointed.
46. Pelesi was not aware that the post had not been advertised on the notice board or circulated at the school. She could not recall receiving any documentation from Dagadu regarding conversion. She was not aware that he had applied for conversion.
47. With regard to Annexure B page 10 she testified that it is completed by the principal as a checklist. Page 12 is the NGK1 form completed by Dagadu. It was an application for a position as a teacher. At item 22 on B13 it is stated “awaits conversion”.
48. She was not aware that the advertisement for the post was not placed on the notice board and circulated amongst the colleagues at school. It would be wrong had the advertisement not been placed on the notice board and circulated amongst the colleagues at school.
49. When an employee is employed there is no place for the attachment of signatures to that document. The director’s and employee’s names are there but not signed. Each page is stamped. She works with conversions. She is not aware that Dagadu had applied for conversion in terms of Collective Agreement 4 of 2018. Dagadu is not eligible for conversion. She is not aware he did not get any feedback on application. She does not remember getting any documentation from him.
50. Pelesi was not aware that there was another teacher who had also applied for conversion and succeeded She is not aware that Dagadu followed up on his application with the district office. Not anyone can do a Postgraduate Certificate in Education(PGCE). If one perhaps has a Bachelor of Science and wants to become an educator one is allowed to do this. Only in certain circumstances will one be allowed to teach
51. while doing the PGCE. A Master’s degree in education does qualify one to teach. At page 11 is the NCK1 which goes with page 12 to make one form. It is completed by Dagadu with the date stamp showing it had been received on 11 December 2018. This was his application for appointment in 2019 as he was part of the staff in 2019.
52. The principal completes and would stamp the document at page13 which, in this instance, is not stamped. She then would submit the documents to the department, the department stamps only the first 2 pages i.e. pages 10 and 11/12
53. The forms which are used for temporary appointments are not the same as those used for temporary educators applying for conversion. A different form is used for the purposes of conversion.
54. Maele’s report of 15 May 2019 to the SMT formed part of why Dagadu had not been re-appointed at the school. In the report Maele had written that she felt uncomfortable to work with Dadadu. When Morake took this up with him he became confrontational and aggressive accusing Morake of taking Maele’s side.
55. Dagadu was also incompetent at dealing with social sciences which comprised history and geography. He complained he could not teach both disciplines at the same time as the content was too much for the time of two hours allocated. Maele had tried to assist him suggesting he spend an hour on each individually. He said he could not do that teaching and doing notes at the same time.
56. Dagadu also did not match the post profile for 2020 as it had changed in accordance with the needs of the school. The learners in his class would always be making a noise while he is teaching demonstrating a lack of management and not doing his work as a class teacher effectively.
57. Maele also testified how she with some of the other teachers had to mark Gaonakala’s scripts. She had reported this to the principal and on 27 November 2019 Thole came to the school to address the problem. Dagadu and Kgasi then promised to hand in their scripts on 28 November 2019 and did so. Dagadu was not charged in respect of not complying with the delivery of his files. He was never charged in respect of his anger as reported by Maele.
58. Maele had dated the post moderation report 2020 by mistake and therefore corrected it to 2019. Dagadu had not been charged as the respondent rather adopted a corrective approach to discipline than a punitive one. The subject allocation for teachers was based on the needs of the school. The time allocation for each period was determined by the Department of Education in accordance with its policies.
59. Morake testified that Dagadu was a difficult teacher to work with because he would object to instructions and pursue what he thought was right. He would submit his assessments late or not at all.
60. He had also said to Morake on an occasion that were she not his principal he would have proposed to her. This had made her feel disrespected as a female manager. She is consequently still struggling with that as a colleague. She does not know what to do and is still in fear of him. At the meetings of the SMT the department heads would always report having had problems with the applicants.
61. The approach in the department was to develop teachers and correct their behaviour rather than charging them.
62. This is not to say that they will not be charged as the process of developing them was still ongoing.
63. Morake had collected Dagadu’s C.V from him at the guesthouse as she had no problem doing so as she had a program at the school
64. She denied having given him an NCK1 form there. This form she had given to him in January 2018 when the school had re-opened. He had collected his appointment letter from her. He had signed a contract of employment with the Department of Education from January to 31 December 2018.
65. As the principal she did not have any power to terminate his contract. His contract terminated by agreement on 31 December 2019. She had signed the letter from the SMT at page 90 of the applicant bundle because as principal she was the head of the SMT. The purpose of the letter was to remind him that his contract was coming to its end on 31 December 2019.
66. The post was advertised through fliers, on a whatsapp group that the teachers could access and on posters placed at the district office. The teachers were also informed at the school that the posts would be advertised. Dagadu did not meet the profile of the advertised post. He did not apply but amongst the documents he submitted he did not have a SACE certificate but a provisional letter.
67. Morake did not know where the applicants got circular 40 of 2019 as the document was a guideline for the SMT when it started to identify suitable teachers. Dagadu was correct that she did not give it to him as it is not meant for him.
68. At clause 7 of circular 40 of 2019 at page 82 of the applicant’s bundle it is stated that temporary educators with a professional qualification in a substantive vacant post who qualify for conversion should not be replaced by another temporary teacher unless the teacher does not match the post profile
69. Dagadu did not meet the post profil for the post in 2020e and his contract was not renewed as he also did not meet the needs of the school
70. His qualifications are for a secondary school. The school does not have grade 10 and SVT and he does not have technology and life orientation so he did not match and meet the curriculum needs of the school and post profile
71. He also did not do his duty. The teacher must be a manager in his class. He failed and did not have the qualifications for a primary school. Sometimes the applicants don’t even go to their class and the department head would have to ask them to do so.
72. Since Morake entered the teaching profession in 2005 this was the first time she was accused of being a bully.
73. She disputes bullying teachers and is registered with SACE where there is a relationship with colleagues. She had never been reported to the department of Education or charged for bullying.
74. Regarding the conversion of Mabilo, she had applied for conversion while at another school. She was at Colston when the conversion was finalized so the district office requested Morake to fill in another form for Mabilo so that the letter of appointment could be served at Colston. Because of the distance Mabilo had to travel to get to Colston she applied for a position at another school and was successful. Mabilo accordingly did not achieve conversion at Colston.
75. Collective agreement 4 of 2018 was signed only in September 2018 and then the Department of Education permitted principals to ask for conversions. Therefore Dagadu could not start with it in March 2018. No conversions were done prior to signing the collective agreement. In terms of the collective agreement a temporary teacher may apply which requirement was met by Dagadu. Dagadu had not applied for the conversion and Morake had also not received his documentation from Selwe.
76. The Zimbabwean teachers at the school had not replaced Dagadu. They were qualified while he was not and they met the needs of the school while he did not. Morake had also not promised Dagadu that he would be made permanent.
77. She had written the letter dated 15 May 2019 to the circuit manager as a consequence of his being emotional and the unprofessional manner in which Dagadu had conducted himself that day.
78. She had become afraid of him as he was very angry. He had wanted to beat her up and had pointed fingers at her. It was a stressful experience and had caused her to visit the doctor who prescribed medicine to calm her down. She even feared going to school the next day and even now she fears working with teachers as she cannot say what would happen. The incident that day had caused her to be admitted to Careline mental hospital in Kimberley for 2 weeks.
79. Gaonakala was in a temporary post. He did not meet the requirements as per clause 7 of Circular40/2019 as he was not a professionally qualified temporary educator. She denied having a personal vendetta against him. She did instruct him to write the letter at page 24 annexure A of the respondent bundle but did not influence its content.
80. The department instructs the school to look for qualified teachers. He did not have the minimum qualification of a diploma. This was why he was not re-appointed at Colston. Secondly he failed to do his duty. In the fourth term he claimed to have marked his scripts both in respect of examinations and assessments. The SMT had however fetched the scripts from his home to mark, record and send to the department. Even in term three he had failed to do his assessments on time. He was therefore not reappointed. He also did not meet the needs of the school nor the post profile. Morake did not promise him a post.
81. Under cross examination she testified that the department does not simply institute disciplinary charges against an employee. She was not yet ready to proceed with a process regarding disciplining Dagadu. She nevertheless still felt like a victim although the respondent had tried an intervention. The circuit manager had first tried to resolve the issue.
82. The principal does not have the authority to terminate a teacher’s contract but can make a recommendation as an ex officio member of the SGB. The subjects that Dagadu and Gaonakala taught are still being taught at the school. Post profiles and curriculum needs for the school are drafted by the SMT and the SGB. She was aware that Dagadu had applied for conversion at the end of 2018.
83. The two disciplines that Dagadu taught in the social sciences were not what he was originally recruited for. He had agreed to take on an extra subject. Mabilo was at Colston in 2019.
84. Curriculum needs and post profiles change annually as per a directive in terms of a circular from the department that schools should look into these. That is why the profile of Dagadu’s post had to change in 2020.
85. They also check how the teacher performed. They also check on Funsa Lusaka applicants who specialized in the subjects that will be needed at our school. They also check on permanent teachers who would be declared in addition in 2019 at which stage there were two applications from permanent teachers who wanted to come to the school of which one had been transferred to Colston. Any other first time qualified educators who meet the curriculum needs of the school are checked. There was one such applicant.
86. Regarding the application for conversion by Dagadu in 2018 which Morake had said she was aware because at that time at Colston they had a list of teachers who would qualify or who would be on a list of teachers who would be on application for conversion. But at that time the collective agreement was not yet amended. It was amended only on 21 September 2018. There was no application for conversion for Dagadu filled in.
87. Thole testified that the duties of a circuit manager are to exercise overall supervision of the schools’ principals and to give them and the SGB and SMT support with issues of management and governance and to conduct the performance and appraisal of principals. He also manages the process of selection and appointment of principals in schools.
88. He also takes part in the appointment of PL1 educators. When the school establishment reflects that the school has gained 1 post is where he advises the principal to advertise the post. The advertisement should be at the school and published at the district office. Principals are given the chance to do shortlisting and interviews whereafter they submit the documents to the district office. The circuit manager will sign it over to the director who will be the last person to sign as far as the appointment of PL1 is concerned.
89. Before Thole signs the recommendation from the school he also does his own verification of whether the qualifications match the post profile. Dagadu had referred to Thole a complaint about how the teachers at Colston were being treated. Thole tried to make the environment conducive for Dagadu and Morake.
90. Thole met individually with Dagadu and Morake and thereafter gave them his findings in a joint sitting to be happy and work together. Dagadu indicated satisfaction with the intervention and Morake was also happy that this thing had been finally resolved.
91. He knows the qualifications of Dagadu but does not know when he said to Dagadu that with his qualifications he cannot be kicked out of the system and the reason for saying that. He would not remember as he deals with 22 schools. Unless it was in writing Thole could not remember Dagadu referring to him an issue of the head of department informing them that Morake said she would not appoint the three of them i.e. Dagadu, Gaonakala and Kgasi. Thole found the letter at page 83A in his office for his attention.
92. Thole was not invited by the director to a meeting where Dagadu and the chairperson of UESA were present. When the director coincidentally saw Thole enter his building he called him to the office where he explained why Dagadu and another teacher were there.
93. It was about Dagadu alleging that he had written a letter but had not received any assistance or intervention.
94. When Thole showed the director the date he was at the school with an intervention the director asked Dagadu why he was saying he had not had any assistance. Dagadu replied that he had forgotten. There was thus no further instruction from the director regarding the letter.
95. Thole nevertheless went to the school again and asked the principal who wrote the letter as it did not say other than “intermediate school teachers”. Thole had also not said that the advertisement was unfair. It is untrue that in his circuit only certain schools advertise posts. Dagadu and Gaonkala met Thole on his way to Vlakfontein and handed him a letter. This was not a formal meeting.
96. Collective agreement 4 of 2018 was signed 25 September 2018. It was not in place in March 2018. His office never received an application for Dagadu to be converted.
97. The SGB and the principal recommend conversions based on whether the applicant met the post profile. Thole signed the document at page 16 of the respondent’s bundle and made the notes therein. It shows he met the SMT on 27 November 2019, at which meeting Gaonakala was not present but communicated with telephonically.
98. Dagadu and Kgasi promised to submit their assessment tasks and examination marks on 28 November 2019. Dagadu said he had finished marking and his reason for not submitting marks was to draw his attention as he was not assisting. He said he knew if he withheld marks he would come rushing regarding the non submission of marks
99. This was a formal meeting. The school did report issues of non compliance with submissions of marks to Thole, which led to his visit at the school on 27 November 2019.
100. He had instructed the principal to fetch scripts from Gaonakala so that the SMT could mark them so that the learners could get their results. Gaonakala is not a qualified teacher and Thole I did not have a look at Gaonakala’s transcripts and did not promise him a job at another school in his circuit.
101. He also did not say to him furiously that he would take action against the principal. He did not promise them that he would make a plan for them at another school in his circuit.
102. If there is an application for a post from a qualified teacher who meets the post profile and one from Gaonakala who is unqualified the qualified applicant will be recommended for the post
103. If a provisional SACE registration is still valid it does not give him the right to a post over an applicant who is qualified and has a SACE certificate. The one with the SACE certificate has the right to be considered.
104. Dagadu cannot say that the advertisement was not placed at the school because it should also determine the closing date of submissions. Dagadu had mentioned the issue of re-advertising in a meeting but that was not true.
105. The letter at page 83 of the bundle which states it was from the educators at Colston was not signed. There was another document which was signed but had no names. Dagadu refused to disclose who the signatories were.
106. During the discussion on the three posts Dagadu was saying that they were not advertised. Dagadu wanted a quick answer as to when the posts would be readvertised but Thole had first to check the facts with the principal and if something had gone wrong then the posts would be readvertised.
107. Page 16 of the respondent’s bundle is Thole’s diary confirming his visit to Colston. It comes from the logbook. The principal had not reported before that she had any problems with the applicants.
108. When the principal secures the services of a teacher who is not qualified but has experience of having taught in other schools such a teacher is appointed in circumstances where there is no other teacher for the learners. This is what happened with Gaonakala.
109. Thole denies having said he would make a plan for the applicants. Thole denies having been asked by the district director to readvertise the posts. No one instructed the principal to terminate the contracts of the three applicants.
110. Thole did not attend to the issue of the mismanagement of funds raised in the letter. It was forwarded to labour relations, the director, the province and national office.
111. Dagadu is qualified based on his certificate only in a secondary school. A principal has no right to terminate a contract of employment. Morake did not terminate the applicants. Principals are advised to remind teachers of the pending termination of their contracts.
112. Pages 1 and 2 of the respondent’s bundle of documents were submitted to his office. At pages 3, 4 and 5 are documents submitted to him by the principal.
113. In re-examination and with reference to various documents in the respondent’s bundle Thole confirmed that he had received complaints regarding the applicant reported by the principal. During cross examination this had however slipped his mind but he was reminded thereof when pointed out in re-examination.
.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
114. It is clear from the documents in this matter that the dispute is one in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995.
115. In matters of this nature the applicants bear the onus of proving the existence of a reasonable expectation that the respondent would renew their fixed term contracts, which expired on 31 December 2019 or that they would be appointed indefinitely.
116. At common law fixed term contracts expire automatically on the date or occurrence of an event on which the parties agreed that the contracts would terminate. In terms of the LRA employees are deemed dismissed when they expected their employers to renew a fixed term contract on the same or similar terms or to employ them permanently.
117. The legislature’s intention in recognizing this form of dismissal is that employers do not circumvent the LRA by keeping their employees on fixed term contracts indefinitely and dismissing them without following a fair procedure and without good reason.
118. The terms of the fixed term contract remain relevant when establishing whether the non-renewal of a fixed term contract constitutes a dismissal. The fixed term contract remains an important indication that the parties themselves intended the contracted relationship to end on the date mentioned.
119. The employees relying on S186(1)(b) must prove that they actually expected the contract to be renewed. Only then does the question of whether the expectation was reasonable arise. It is trite that the test of a reasonable expectation is an objective one and therefore that the employee must prove the existence of facts which would lead a reasonable person to conclude that the contract would be renewed . Circumstances that might lead to a reasonable expectation that contracts may be renewed will differ from case to case but frequently take the form of a prior promise or past practice for example where the employer has habitually renewed the contract.
120. Numerous renewals of a fixed term contract of employment also do not in themselves conclusively prove a reasonable expectation of renewal. The existence of a reasonable expectation of renewal must be determined from the perspective of the employee and the employer. The conduct of the employer in dealing with the relationship, what the employer said to the employee at the time the contract was concluded or thereafter and the motive for terminating the relationship have been found to be factors to be considered when determining whether an employer implied that a fixed term contract would be renewed. Where an employer has repeatedly renewed a fixed term contract the weight to be attached to the practice may increase in proportion to the number of successive contracts the parties may have concluded unless the employer is able to provide a compelling reason for not renewing the contract.
121. In the matter before me it may furthermore be appropriate to consider the collective agreement 4 of 2018. In terms of this collective agreement there are relevant factors to determine an objective reasonable expectation which a person considering the existence of a reasonable expectation must take into account - the purpose and reason for the existence of the temporary contract; the provisions of the employment contract and any other agreement; the conduct of the employer including whether the employer has acted consistently; the nature of any undertakings by the employer and whether the undertakings were given by a person of the requisite authority; the law, practice or custom relating to the renewal of temporary contracts or the conversion of temporary contracts to permanent ones; the extent to which there have been repeated renewals; the availability of a post on the educator establishment; the rights and entitlements of the governing body of the public school; the public interest and the nature and scale of undertaking the provision of public schooling.
122. In casu the maximum number of times a fixed term contract had been rolled over is once viz. in the case of Dagadu and that of Kgasi. The contract of Gaonakala had not been rolled over at all. There is in fact nothing in the evidence before me that shows this to have been the contention of the applicants. Even if it were and I am satisfied that it was not, the number of times these contracts had been rolled over cannot be said to have created a reasonable expectation of further renewal or permanency.
123. It was the contention of Gaonakala that Morake had had a personal vendetta against him and therefore did not renew his contract. The evidence suggests that he had drawn this conclusion from her attitude towards him for having associated with Dagadu and Kgasi whom she had considered difficult employees.
124. His further contention and argument in this regard pertained to his having been told that he was appointed in a substantive funded vacant post and therefore an expectation had been created by this very fact.
125. The reasons put forward by the respondent however for the non renewal of his contract of employment I find compelling.
126. Gaonakala had at the time of the termination of his fixed term contract been in the respondent’s employ for a short while of 4 months only and without his contract having been renewed.
127. The further and most compelling reason for the non renewal of the fixed term contract of Gaonakala was that he was through his own testimony in fact not qualified to teach.
128. The circumstances prevailing in respect of Gaonakala militate against a conclusion that he could have had an expectation that his contract would be renewed.
129. In particular the evidence suggests that he had been unable to hold a teaching position at the many schools at which he testified he taught for that very reason.
130. I am therefore satisfied to hold as I do that Gaonakala did not have any reasonable expectation that his contract would be renewed or that he would be appointed on an indefinite basis. Consequently the termination and non renewal of his contract at the end of December 2019 cannot be said to have been an unfair dismissal as contemplated in S186(1)(b) of the LRA.
131. Even the fact that the subjects that he taught were still being taught at the school does not assist Gaonakala. In this regard it was the testimony of Pelesi in relation to its not being the norm to appoint educators without a SACE certificate that sometimes there prevails circumstances which led to pressure to appoint an unqualified educator when they were unable to source professionally qualified educators.
132. Regarding Dagadu the evidence shows both Morake and Maele finding him an aggressive person and difficult to work with. Both testified to his refusing to obey reasonable instructions with Maele also testifying that he had not met the post profile for 2020.
133. The evidence shows further that all of the applicants had not complied with the timeous submission of their marked scripts and assessments.
134. In the case of respect of Dagadu the testimony of Thole is particularly significant. I refer here to Thole’s testimony that Dagadu had said that he had completed the marking task but had not submitted his marks as he knew that to do so would bring Thole to the school in order that he may have him address the issue of the complaint about Morake. This was not tested in cross examination and accordingly stands.
135. This conduct represents a particularly cynical attitude on the part of Dagadu and can only be damaging of the employment relationship. It cannot support Dagadu’s contention of a reasonable expectation of further employment.
136. Regarding the alleged unfair dismissal of Dagadu the overall evidence is of his having an antagonistic relationship with Morake. His relationship is one of having lodged complaints against her and her against him. It contradicts the contention of the existence of a reasonable expectation of renewal of a fixed term contract or of indefinite employment.
137. In respect of the contention of Dagadu that two educators from Zimbabwe viz. Mr. Madondo and Ms Shriza, had had their contracts renewed, it must be noted that these educators had actually applied for the posts while the testimony of Dagadu himself shows that he had not made such application.
138. In such circumstances where he had not actually made an application for the post, Dagadu cannot expect to be appointed into the post or that he had a reasonable expectation that his fixed term contract may be renewed.
139. I find it appropriate at this point to also deal with the document at pages 10 to 13 of appendix B of the respondent’s bundle. This is the document which Dagadu contends is his application for conversion. He supports this contention with reference to the words “awaits conversion” which appear on page 13.
140. While it is not clear from this page itself who the author of the document is, the document itself is not date-stamped as are pages 10 to 12 and signed by bang Morake. I do however accept the argument of the respondent that pages 10 to 13 of the respondent’s bundle purport rather to be an application for a temporary position than an application for conversion.
141. It does however reflect the words “awaits conversion” which leads me to believe that Morake was aware of Dagadu’s quest for conversion to a permanent educator. The words are however not sufficient to conclude that the preceding three pages constitute an application for conversion.
142. I am nonetheless mindful of the contention of Dagadu that there was no need actually for him to make application for conversion in terms of the provisions of the collective agreement 4 of 2018.
143. It is clear that the reference to “application for conversion”, in the main, is rather a reference to the documents that the applicants submitted for the process of conversion to be effected.
144. The evidence before me shows Dagadu’s placing reliance on what he was informed of at the respondent’s head office when enquiring about the progress with his conversion viz. that it was being processed and that he just had to wait for the result.
145. On the other hand there was the testimony for the respondent that Morake had not received such documentation from Selwe, the department head, to whom Dagadu allegedly had submitted them. It is to be noted that neither the applicants nor the respondent had called Selwe as a witness to these arbitration proceedings. So it is clear that there is a dispute as to whether Dagadu’s documentation had been submitted to head office for consideration in the process of conversion. Be that as it may there is clearly a profile that has to be met for any educator for conversion to meet in order for the conversion to be successful. Particularly relevant is how the educator is qualified. Here I find myself in agreement with the respondent that Dagadu’s qualifications render him able to teach in a secondary or high school and not in a primary, intermediate or senior phase school.
146. Especially noteworthy is the academic transcripts of Dagadu which reflect his qualification for vocational training, which qualification is relevant for the teaching of school leavers i.e. pupils at the end of their schooling. On a balance of probabilities this alludes to pupils and the end of their high school years, again leading to a conclusion on balance that his qualifications enable him to teach in a high school.
147. I am further satisfied that the academic transcripts of Dagadu show that he is qualified to teach in a high school and this therefore is what his teacher certificate is related to i.e. the academic transcripts.
148. This is clearly one valid reason for the non-renewal of Dagadu in 2020 and one which would negate any expectation of the renewal of his fixed term contract of employment or indefinite employment.
149. A further valid reason for the non appointment of Dagadu in 2020 is the fact that he does not possess a SACE certificate, which is a further requirement for eligibility for conversion and consequently appointment into a permanent position.
150. Although Dagadu read from a document during his re-examination which he contends was a SACE certificate this document had not been presented as part of the applicant’s bundle of documents for testing by the respondent. It was in fact the testimony of Morake that Dagadu had only a provisional registration with SACE.
151. It must also be noted that Dagadu had testified in evidence in chief on the same question of his certification that he had submitted his SACE documentation. This document was however also not presented in the applicant’s bundle. This would however have been the most appropriate point to testify as to whether or not he has a SACE certificate as directed by the words in collective agreement 4 of 2018 regarding the eligibility for conversion and to support it with the necessary documentary evidence.
152. On a balance of probabilities therefore I am satisfied that Dagadu is not in possession of a SACE certificate.
153. I am consequently satisfied that Dagadu was not eligible for conversion in terms of collective agreement 4 of 2018.
154. In this regard therefore I am satisfied that he has not established the existence of a reasonable expectation that his contract would be renewed or that he would be appointed into a position indefinitely.
155. Furthermore the contention of the applicants that Thole had promised them employment at a school on his circuit other than Colston was refuted by Thole. The evidence shows in any event that Thole is not authorized to make any job offer to educators and consequently the applicants cannot rely on such a statement were it in fact made. I have in any event accepted the rebuttal by Thole of the applicants’ claim in this regard.
156. Furthermore the mere fact that other contracts may have been renewed does not in and of itself establish the existence of a reasonable expectation on the part of the applicants. This is by reason of the fact that S186(1)(b) of the LRA speaks to expectation in the mind of an employee brought about by some promise or prior practice on the part of the employer. In other words the conduct of the employer in creating a reasonable expectation must relate to the employee him or herself and not others within their employ.
157. To further illustrate this point one needs to ask what the respondent did or said to the applicants which allegedly created the expectation in their minds that their contracts would be renewed. There is no evidence whatsoever of any past practice or any promise made to the applicants by respondent, to sustain a cause of action based on a reasonable expectation of a renewal. What the respondent may have done to other employees in its employ cannot create any such expectation on the part of the applicants. The expectation is a subjective one judged in accordance with an objective standard.
158. Furthermore, I must consider whether there were reasons sufficiently compelling for the respondent to terminate the contracts of employment of the applicants. The evidence in this regard shows as stated above the applicants failing to comply with protocols in respect of the submission of marks and assessment. It is to be noted that the testimony in this regard refers not only to Dagadu and Gaonakala but also to Kgasi.
159. Further evidence is also to the effect the Dagadu was unco-operative, not wanting to follow the instructions of Maele but opting rather to do things his way.
160. The further testimony was also to the effect that the post profile of Dagadu’s position had changed in 2020 and that he no longer met the curriculum needs off the school. He was also unqualified to teach at Colston as his teacher’s qualification shows that he is qualified to teach at a high school and not at a primary school. Gaonakala was unqualified to teach at all.
161. Further testimony was that neither of them had a SACE certificate and none was handed into evidence in this regard.
162. Most importantly however is the testimony that suitably qualified educators who met all the requirements for appointment had been found and appointed for 2020.
163. I am satisfied that the afforegoing represents sufficient good reason for the respondent not to have renewed the contracts of the applicants and therefore that such non renewal does not constitute a dismissal as contemplated in S186(1)(b) of the LRA.
164. Having thus considered all the evidence presented at this arbitration I find that there did not exist any reasonable expectation on the part of the applicants that their contracts of employment would be renewed or that they would be employed on an indefinite basis.
AWARD
165. This application for relief in terms of the Labour Relations Act 66 of 1995 as amended is dismissed.
COMMISSIONER: L. MARTIN
11 March 2021
Case Number PSES995-19/20NC
In the matter between
G. DAGADU, S. GAONAKALA, T. KGASI
Applicants
and
DEPARTMENT OF EDUCATION – NORTHERN CAPE
Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. This arbitration was held via Zoom Online Platform on 11, 12, 22 and 23 February 2021. The applicants, Godwin Dagadu(Dagadu), Steward Phenyo Gaonakala(Gaonakala) and Thema Frank Kgasi(Kgasi)(deceased), were represented by Mrs. S. C. du Plessis , a practicing attorney. The respondent, The Department of Education Northern Cape, was represented by Mr.G..B. Pisane, its senior education specialist, labour relations unit. The parties agreed to submit written closing arguments by no later than 2 March 2021.
THE ISSUE IN DISPUTE
2. I must decide whether the applicants were dismissed and, if so, whether the dismissals were unfair.
THE BACKGROUND TO THE DISPUTE
3. The applicants worked for the respondent as educators at Colston intermediate School on fixed term contracts of employment until their services terminated on 31 December 2019.
4. Both Dagadu and Kgasi had so worked on 2 contracts of 1 year duration each while Gaonakala was so employed for 4 months.
5. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
6. This matter concerns an allegation of unfair dismissal in terms of S186(1) (b) of the Labour Relations Act (LRA).
The section reads as follows:
“(b) Dismissal” means that an employee employed in terms of a fixed term contract of employment reasonably expected the employer -
(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
7. The applicants contend that they had a legitimate expectation that their contracts of employment would be renewed in 2020.
8. The contention of the respondent is that there was no such legitimate objective expectation and that there were valid reasons for not renewing the contracts of employment of the applicants.
SUMMARY OF EVIDENCE AND ARGUMENT
9. Both parties submitted bundles of documents. Dagadu and Gaonakala testified under oath for the applicants. Kkomokso Gloria Pelesi(Pelesi), the Chief personnel officer, Onxlametse Maele(Maele), the department head intermediate and senior phases, Thandiwe Gladys Morake(Morake),the principal and Mr. Ngakaemang Thole(Thole), the circuit manager, testified under oath for the respondent.
10. Dagadu and Gaonakala were employed at Colston Intermediate School(Colston) on fixed term contracts which terminated at the end of December 2019. Dagadu had been so employed for two years and Gaonakala for four months. The respondent disputes that the applicants had been dismissed.
The evidence for the applicants:
11. The applicants had not been aware of their posts having been advertised. They were however given an opportunity by the department head, Mrs Selwe(Selwe), to submit their application.
12. The applicants were given letters in November 2019 in terms of which they were informed of the termination of their contracts in December 2019.
13. When Dagadu was first appointed, Morake informed him that he would be made permanent. Dagadu had written a letter of complaint to Thole about how Morake bullies the teachers and that they would get a letter of termination were they to express dissatisfaction about how they were treated. The letter was signed by Gaonakala, Dagadu and Kgasi, Plaaitjie and all temporary educators about being laid off.
14. Gaonakala said that Morake had a low self esteem. He felt intimidated at some stage as she would say that he was hanging out with the wrong crowd when she saw him with Dagadu and Kgasi.
15. Morake had told Gaonakala that he would still be employed at Colston the next year. He testified that the applicants had nonetheless applied for the post on invitation from the head of department Selwe.
16. Dagadu had testified on the other hand that he had not in fact applied on invitation from Selwe as he had rather challenged the advertisement of the post.
17. Gaonakala also testified that once the principal knew that the applicants had complained to the circuit manager she was furious and decided to terminate their contracts.
18. Thole had promised to look into appointments for Dagadu and Gaonakala at other schools in his circuit. This was after he was furious about Morake and after looking at their transcripts.
19. Morake had never given Gaonakala the reason for his termination and it looked like she had a personal vendetta against him.
20. Only Dagadu and Mabilo qualified for conversion and had submitted their documents to Morake according to whom it had been forwarded to the district office to forward to the head office.
21. Mabilo had informed Dagadu that she had already received her conversion in March 2019 while on the other hand he had not heard anything. He had completed his form for conversion already in March 2018 but had not heard anything and was terminated in 2019.
22. When he had followed up with labour relations regarding his conversion application he was told it was in progress and that he must just wait. There had been enough time to take a decision on his conversion. In terms of circular 40 of 2019 which was in circulation, all temporary educators in substantive posts should be retained and should not be replaced by any other temporary educator.
23. After they had been asked questions based on this circular, Morake asked them to submit their C.V’s which they did. They did apply. Thereafter the department head informed them that Morake had said she was not going to appoint them. They accordingly lodged a complaint with the circuit manager and are still awaiting a reply.
24. At the end of 2018 their contracts were renewed and they were given assumption forms to complete as the department does not have any application for renewal forms.
25. Dagadu’s post profile then was to teach life orientation, social science and economic management science. He is no longer working at the school because the principal is a bully and the applicants complained about her treatment of them. When he became the secretary of the Educators Union of South Africa he played his part and noticed financial mismanagement at the school. In terms of collective agreement 4 of 2018, which encompasses the aforesaid section of the LRA, Dagadu had applied for conversion to a permanent post. The principal had assured Dagadu that she would do what she could to ensure his conversion to a permanent position. She had however failed to submit his documents to the head office.
26. Gaonakala had also been informed that he was in a substantive vacant post and that it was possible that he be made permanent. New temporary staff were appointed after the applicant’s contracts had terminated notwithstanding the applicant’s having the necessary qualifications and experience.
27. Under cross examination Dagadu confirmed that Morake does not do appointments but that he was appointed by the department. He also interpreted the letter reminding him of the termination of his contract as the letter terminating his contract.
28. He had applied for conversion in March 2018 while the collective agreement 4 of 2018 is dated September 2018. Dagadu disputes the documents inferring that he had not started marking timeously and indicating that he had not submitted his marks timeously. He had submitted all his tasks on time.
29. The contents of the document in the respondent’s bundle on page15 is fabricated as he had never been invited to a meeting by the SMT. Morake had insulted him in her office and he walked out. It is a lie that he wanted to fight her. That he hated Morake as he wanted a romantic relationship with her is a lie. He would never propose to Morake and this was just a story to throw him out of the school.
30. Thole had said that the post would be readvertised. When it was put to Dagadu that the circuit manger cannot, he testified that the principal manipulates the situation. Dagadu did not apply for the post as it had not been readvertised.
31. When it was put to him that he had seen the advertisement from a friend he said he had had not applied as he complained to the secretary how the advertisement was done.
32. It was put to Dagadu that he was oblivious of his contract terminating because he disrespected management and because of the issue with the marks and not because the principal is a bully. He denied this. He matched the post profile when he was appointed and for the two years he was at Colston.
33. He was never charged regarding his conduct or non compliance. He had not been charged regarding non compliance, moderation and not doing his duty.
34. Dagadu was aware that a teacher, Maruda, had only a matriculation certificate and had been appointed without a SACE certificate. He also did not have a problem with Zimbabweans but had a problem with the system. Dagadu does have a SACE certificate but this had never been requested from him. If it had been requested from him he would have provided it.
35. Gaonakala had been appointed into the post which had become vacant when a teacher left the school. He signed a contract for four months and was promised renewal. Five teachers including the applicants got letters terminating their contracts on 11 November 2019. He got the circular 40 less than a week from the closing date of 31 October 2019 stipulated therein. Selwe had informed the applicants that they could apply for the posts which, according to Gaonakala, they did.
36. They were under the impression that their contracts would be renewed in January 2020. He was in a substantive vacant post and was told by the principal that he would still be employed the next year. He could also match the post profile of the school although he was still studying at the time. His post profile was Setswana and Social Sciences
37. When they got the circular 40 they showed it to the department head, Selwe, and she said they could submit their qualifications and documents and she would submit them. Gaonakala matched the post profile of Setswana and social sciences.
38. He had not been appointed on a permanent basis wherever he taught as he is a student and unqualified. The minimum requirements to teach is a Bachelor’s degree or diploma, a SACE certificate, a South African identity document.
39. His academic transcripts from UNISA show that he does not have these qualifications but was in possession of a provisional registration with SACE.
40. He was still studying and his SACE licence was still in good standing.
41. Thole had spoken to him regarding scripts not marked. He had said he would submit them as soon as he was done. He was still within the deadline at the time. He was unable to complete his marking as he had fallen ill on the last day of school. He submitted a doctor’s certificate.
42. He had also not objected to the written warning which was on his file as he showed respect to the principal who was also intimidating. The letter of apology he wrote were the words the principal made him write.
The evidence for the respondent:
43. Pelesi was responsible for the appointment of non SACE educators and transfers and acting appointment and conversion of temporary educators to permanent posts. She is well conversed with appointments. The principal advertises the post and places it on notice board. Applicants can apply to the principal and submit all documents to her.
44. These applications are sorted by the school governing body and the principal and they do the shortlisting and interviews. They then recommend the best candidate to the district directors.
45. In doing so, under qualified and unqualified teachers are not considered as they must have a SACE certificate. An unqualified teacher with a provisional SACE certificate cannot qualify for conversion. If an applicant is professionally qualified and proves he has applied for the PGCE then that contract with the unqualified teacher swill end. The professionally qualified person will be appointed.
46. Pelesi was not aware that the post had not been advertised on the notice board or circulated at the school. She could not recall receiving any documentation from Dagadu regarding conversion. She was not aware that he had applied for conversion.
47. With regard to Annexure B page 10 she testified that it is completed by the principal as a checklist. Page 12 is the NGK1 form completed by Dagadu. It was an application for a position as a teacher. At item 22 on B13 it is stated “awaits conversion”.
48. She was not aware that the advertisement for the post was not placed on the notice board and circulated amongst the colleagues at school. It would be wrong had the advertisement not been placed on the notice board and circulated amongst the colleagues at school.
49. When an employee is employed there is no place for the attachment of signatures to that document. The director’s and employee’s names are there but not signed. Each page is stamped. She works with conversions. She is not aware that Dagadu had applied for conversion in terms of Collective Agreement 4 of 2018. Dagadu is not eligible for conversion. She is not aware he did not get any feedback on application. She does not remember getting any documentation from him.
50. Pelesi was not aware that there was another teacher who had also applied for conversion and succeeded She is not aware that Dagadu followed up on his application with the district office. Not anyone can do a Postgraduate Certificate in Education(PGCE). If one perhaps has a Bachelor of Science and wants to become an educator one is allowed to do this. Only in certain circumstances will one be allowed to teach
51. while doing the PGCE. A Master’s degree in education does qualify one to teach. At page 11 is the NCK1 which goes with page 12 to make one form. It is completed by Dagadu with the date stamp showing it had been received on 11 December 2018. This was his application for appointment in 2019 as he was part of the staff in 2019.
52. The principal completes and would stamp the document at page13 which, in this instance, is not stamped. She then would submit the documents to the department, the department stamps only the first 2 pages i.e. pages 10 and 11/12
53. The forms which are used for temporary appointments are not the same as those used for temporary educators applying for conversion. A different form is used for the purposes of conversion.
54. Maele’s report of 15 May 2019 to the SMT formed part of why Dagadu had not been re-appointed at the school. In the report Maele had written that she felt uncomfortable to work with Dadadu. When Morake took this up with him he became confrontational and aggressive accusing Morake of taking Maele’s side.
55. Dagadu was also incompetent at dealing with social sciences which comprised history and geography. He complained he could not teach both disciplines at the same time as the content was too much for the time of two hours allocated. Maele had tried to assist him suggesting he spend an hour on each individually. He said he could not do that teaching and doing notes at the same time.
56. Dagadu also did not match the post profile for 2020 as it had changed in accordance with the needs of the school. The learners in his class would always be making a noise while he is teaching demonstrating a lack of management and not doing his work as a class teacher effectively.
57. Maele also testified how she with some of the other teachers had to mark Gaonakala’s scripts. She had reported this to the principal and on 27 November 2019 Thole came to the school to address the problem. Dagadu and Kgasi then promised to hand in their scripts on 28 November 2019 and did so. Dagadu was not charged in respect of not complying with the delivery of his files. He was never charged in respect of his anger as reported by Maele.
58. Maele had dated the post moderation report 2020 by mistake and therefore corrected it to 2019. Dagadu had not been charged as the respondent rather adopted a corrective approach to discipline than a punitive one. The subject allocation for teachers was based on the needs of the school. The time allocation for each period was determined by the Department of Education in accordance with its policies.
59. Morake testified that Dagadu was a difficult teacher to work with because he would object to instructions and pursue what he thought was right. He would submit his assessments late or not at all.
60. He had also said to Morake on an occasion that were she not his principal he would have proposed to her. This had made her feel disrespected as a female manager. She is consequently still struggling with that as a colleague. She does not know what to do and is still in fear of him. At the meetings of the SMT the department heads would always report having had problems with the applicants.
61. The approach in the department was to develop teachers and correct their behaviour rather than charging them.
62. This is not to say that they will not be charged as the process of developing them was still ongoing.
63. Morake had collected Dagadu’s C.V from him at the guesthouse as she had no problem doing so as she had a program at the school
64. She denied having given him an NCK1 form there. This form she had given to him in January 2018 when the school had re-opened. He had collected his appointment letter from her. He had signed a contract of employment with the Department of Education from January to 31 December 2018.
65. As the principal she did not have any power to terminate his contract. His contract terminated by agreement on 31 December 2019. She had signed the letter from the SMT at page 90 of the applicant bundle because as principal she was the head of the SMT. The purpose of the letter was to remind him that his contract was coming to its end on 31 December 2019.
66. The post was advertised through fliers, on a whatsapp group that the teachers could access and on posters placed at the district office. The teachers were also informed at the school that the posts would be advertised. Dagadu did not meet the profile of the advertised post. He did not apply but amongst the documents he submitted he did not have a SACE certificate but a provisional letter.
67. Morake did not know where the applicants got circular 40 of 2019 as the document was a guideline for the SMT when it started to identify suitable teachers. Dagadu was correct that she did not give it to him as it is not meant for him.
68. At clause 7 of circular 40 of 2019 at page 82 of the applicant’s bundle it is stated that temporary educators with a professional qualification in a substantive vacant post who qualify for conversion should not be replaced by another temporary teacher unless the teacher does not match the post profile
69. Dagadu did not meet the post profil for the post in 2020e and his contract was not renewed as he also did not meet the needs of the school
70. His qualifications are for a secondary school. The school does not have grade 10 and SVT and he does not have technology and life orientation so he did not match and meet the curriculum needs of the school and post profile
71. He also did not do his duty. The teacher must be a manager in his class. He failed and did not have the qualifications for a primary school. Sometimes the applicants don’t even go to their class and the department head would have to ask them to do so.
72. Since Morake entered the teaching profession in 2005 this was the first time she was accused of being a bully.
73. She disputes bullying teachers and is registered with SACE where there is a relationship with colleagues. She had never been reported to the department of Education or charged for bullying.
74. Regarding the conversion of Mabilo, she had applied for conversion while at another school. She was at Colston when the conversion was finalized so the district office requested Morake to fill in another form for Mabilo so that the letter of appointment could be served at Colston. Because of the distance Mabilo had to travel to get to Colston she applied for a position at another school and was successful. Mabilo accordingly did not achieve conversion at Colston.
75. Collective agreement 4 of 2018 was signed only in September 2018 and then the Department of Education permitted principals to ask for conversions. Therefore Dagadu could not start with it in March 2018. No conversions were done prior to signing the collective agreement. In terms of the collective agreement a temporary teacher may apply which requirement was met by Dagadu. Dagadu had not applied for the conversion and Morake had also not received his documentation from Selwe.
76. The Zimbabwean teachers at the school had not replaced Dagadu. They were qualified while he was not and they met the needs of the school while he did not. Morake had also not promised Dagadu that he would be made permanent.
77. She had written the letter dated 15 May 2019 to the circuit manager as a consequence of his being emotional and the unprofessional manner in which Dagadu had conducted himself that day.
78. She had become afraid of him as he was very angry. He had wanted to beat her up and had pointed fingers at her. It was a stressful experience and had caused her to visit the doctor who prescribed medicine to calm her down. She even feared going to school the next day and even now she fears working with teachers as she cannot say what would happen. The incident that day had caused her to be admitted to Careline mental hospital in Kimberley for 2 weeks.
79. Gaonakala was in a temporary post. He did not meet the requirements as per clause 7 of Circular40/2019 as he was not a professionally qualified temporary educator. She denied having a personal vendetta against him. She did instruct him to write the letter at page 24 annexure A of the respondent bundle but did not influence its content.
80. The department instructs the school to look for qualified teachers. He did not have the minimum qualification of a diploma. This was why he was not re-appointed at Colston. Secondly he failed to do his duty. In the fourth term he claimed to have marked his scripts both in respect of examinations and assessments. The SMT had however fetched the scripts from his home to mark, record and send to the department. Even in term three he had failed to do his assessments on time. He was therefore not reappointed. He also did not meet the needs of the school nor the post profile. Morake did not promise him a post.
81. Under cross examination she testified that the department does not simply institute disciplinary charges against an employee. She was not yet ready to proceed with a process regarding disciplining Dagadu. She nevertheless still felt like a victim although the respondent had tried an intervention. The circuit manager had first tried to resolve the issue.
82. The principal does not have the authority to terminate a teacher’s contract but can make a recommendation as an ex officio member of the SGB. The subjects that Dagadu and Gaonakala taught are still being taught at the school. Post profiles and curriculum needs for the school are drafted by the SMT and the SGB. She was aware that Dagadu had applied for conversion at the end of 2018.
83. The two disciplines that Dagadu taught in the social sciences were not what he was originally recruited for. He had agreed to take on an extra subject. Mabilo was at Colston in 2019.
84. Curriculum needs and post profiles change annually as per a directive in terms of a circular from the department that schools should look into these. That is why the profile of Dagadu’s post had to change in 2020.
85. They also check how the teacher performed. They also check on Funsa Lusaka applicants who specialized in the subjects that will be needed at our school. They also check on permanent teachers who would be declared in addition in 2019 at which stage there were two applications from permanent teachers who wanted to come to the school of which one had been transferred to Colston. Any other first time qualified educators who meet the curriculum needs of the school are checked. There was one such applicant.
86. Regarding the application for conversion by Dagadu in 2018 which Morake had said she was aware because at that time at Colston they had a list of teachers who would qualify or who would be on a list of teachers who would be on application for conversion. But at that time the collective agreement was not yet amended. It was amended only on 21 September 2018. There was no application for conversion for Dagadu filled in.
87. Thole testified that the duties of a circuit manager are to exercise overall supervision of the schools’ principals and to give them and the SGB and SMT support with issues of management and governance and to conduct the performance and appraisal of principals. He also manages the process of selection and appointment of principals in schools.
88. He also takes part in the appointment of PL1 educators. When the school establishment reflects that the school has gained 1 post is where he advises the principal to advertise the post. The advertisement should be at the school and published at the district office. Principals are given the chance to do shortlisting and interviews whereafter they submit the documents to the district office. The circuit manager will sign it over to the director who will be the last person to sign as far as the appointment of PL1 is concerned.
89. Before Thole signs the recommendation from the school he also does his own verification of whether the qualifications match the post profile. Dagadu had referred to Thole a complaint about how the teachers at Colston were being treated. Thole tried to make the environment conducive for Dagadu and Morake.
90. Thole met individually with Dagadu and Morake and thereafter gave them his findings in a joint sitting to be happy and work together. Dagadu indicated satisfaction with the intervention and Morake was also happy that this thing had been finally resolved.
91. He knows the qualifications of Dagadu but does not know when he said to Dagadu that with his qualifications he cannot be kicked out of the system and the reason for saying that. He would not remember as he deals with 22 schools. Unless it was in writing Thole could not remember Dagadu referring to him an issue of the head of department informing them that Morake said she would not appoint the three of them i.e. Dagadu, Gaonakala and Kgasi. Thole found the letter at page 83A in his office for his attention.
92. Thole was not invited by the director to a meeting where Dagadu and the chairperson of UESA were present. When the director coincidentally saw Thole enter his building he called him to the office where he explained why Dagadu and another teacher were there.
93. It was about Dagadu alleging that he had written a letter but had not received any assistance or intervention.
94. When Thole showed the director the date he was at the school with an intervention the director asked Dagadu why he was saying he had not had any assistance. Dagadu replied that he had forgotten. There was thus no further instruction from the director regarding the letter.
95. Thole nevertheless went to the school again and asked the principal who wrote the letter as it did not say other than “intermediate school teachers”. Thole had also not said that the advertisement was unfair. It is untrue that in his circuit only certain schools advertise posts. Dagadu and Gaonkala met Thole on his way to Vlakfontein and handed him a letter. This was not a formal meeting.
96. Collective agreement 4 of 2018 was signed 25 September 2018. It was not in place in March 2018. His office never received an application for Dagadu to be converted.
97. The SGB and the principal recommend conversions based on whether the applicant met the post profile. Thole signed the document at page 16 of the respondent’s bundle and made the notes therein. It shows he met the SMT on 27 November 2019, at which meeting Gaonakala was not present but communicated with telephonically.
98. Dagadu and Kgasi promised to submit their assessment tasks and examination marks on 28 November 2019. Dagadu said he had finished marking and his reason for not submitting marks was to draw his attention as he was not assisting. He said he knew if he withheld marks he would come rushing regarding the non submission of marks
99. This was a formal meeting. The school did report issues of non compliance with submissions of marks to Thole, which led to his visit at the school on 27 November 2019.
100. He had instructed the principal to fetch scripts from Gaonakala so that the SMT could mark them so that the learners could get their results. Gaonakala is not a qualified teacher and Thole I did not have a look at Gaonakala’s transcripts and did not promise him a job at another school in his circuit.
101. He also did not say to him furiously that he would take action against the principal. He did not promise them that he would make a plan for them at another school in his circuit.
102. If there is an application for a post from a qualified teacher who meets the post profile and one from Gaonakala who is unqualified the qualified applicant will be recommended for the post
103. If a provisional SACE registration is still valid it does not give him the right to a post over an applicant who is qualified and has a SACE certificate. The one with the SACE certificate has the right to be considered.
104. Dagadu cannot say that the advertisement was not placed at the school because it should also determine the closing date of submissions. Dagadu had mentioned the issue of re-advertising in a meeting but that was not true.
105. The letter at page 83 of the bundle which states it was from the educators at Colston was not signed. There was another document which was signed but had no names. Dagadu refused to disclose who the signatories were.
106. During the discussion on the three posts Dagadu was saying that they were not advertised. Dagadu wanted a quick answer as to when the posts would be readvertised but Thole had first to check the facts with the principal and if something had gone wrong then the posts would be readvertised.
107. Page 16 of the respondent’s bundle is Thole’s diary confirming his visit to Colston. It comes from the logbook. The principal had not reported before that she had any problems with the applicants.
108. When the principal secures the services of a teacher who is not qualified but has experience of having taught in other schools such a teacher is appointed in circumstances where there is no other teacher for the learners. This is what happened with Gaonakala.
109. Thole denies having said he would make a plan for the applicants. Thole denies having been asked by the district director to readvertise the posts. No one instructed the principal to terminate the contracts of the three applicants.
110. Thole did not attend to the issue of the mismanagement of funds raised in the letter. It was forwarded to labour relations, the director, the province and national office.
111. Dagadu is qualified based on his certificate only in a secondary school. A principal has no right to terminate a contract of employment. Morake did not terminate the applicants. Principals are advised to remind teachers of the pending termination of their contracts.
112. Pages 1 and 2 of the respondent’s bundle of documents were submitted to his office. At pages 3, 4 and 5 are documents submitted to him by the principal.
113. In re-examination and with reference to various documents in the respondent’s bundle Thole confirmed that he had received complaints regarding the applicant reported by the principal. During cross examination this had however slipped his mind but he was reminded thereof when pointed out in re-examination.
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ANALYSIS OF THE EVIDENCE AND ARGUMENT
114. It is clear from the documents in this matter that the dispute is one in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995.
115. In matters of this nature the applicants bear the onus of proving the existence of a reasonable expectation that the respondent would renew their fixed term contracts, which expired on 31 December 2019 or that they would be appointed indefinitely.
116. At common law fixed term contracts expire automatically on the date or occurrence of an event on which the parties agreed that the contracts would terminate. In terms of the LRA employees are deemed dismissed when they expected their employers to renew a fixed term contract on the same or similar terms or to employ them permanently.
117. The legislature’s intention in recognizing this form of dismissal is that employers do not circumvent the LRA by keeping their employees on fixed term contracts indefinitely and dismissing them without following a fair procedure and without good reason.
118. The terms of the fixed term contract remain relevant when establishing whether the non-renewal of a fixed term contract constitutes a dismissal. The fixed term contract remains an important indication that the parties themselves intended the contracted relationship to end on the date mentioned.
119. The employees relying on S186(1)(b) must prove that they actually expected the contract to be renewed. Only then does the question of whether the expectation was reasonable arise. It is trite that the test of a reasonable expectation is an objective one and therefore that the employee must prove the existence of facts which would lead a reasonable person to conclude that the contract would be renewed . Circumstances that might lead to a reasonable expectation that contracts may be renewed will differ from case to case but frequently take the form of a prior promise or past practice for example where the employer has habitually renewed the contract.
120. Numerous renewals of a fixed term contract of employment also do not in themselves conclusively prove a reasonable expectation of renewal. The existence of a reasonable expectation of renewal must be determined from the perspective of the employee and the employer. The conduct of the employer in dealing with the relationship, what the employer said to the employee at the time the contract was concluded or thereafter and the motive for terminating the relationship have been found to be factors to be considered when determining whether an employer implied that a fixed term contract would be renewed. Where an employer has repeatedly renewed a fixed term contract the weight to be attached to the practice may increase in proportion to the number of successive contracts the parties may have concluded unless the employer is able to provide a compelling reason for not renewing the contract.
121. In the matter before me it may furthermore be appropriate to consider the collective agreement 4 of 2018. In terms of this collective agreement there are relevant factors to determine an objective reasonable expectation which a person considering the existence of a reasonable expectation must take into account - the purpose and reason for the existence of the temporary contract; the provisions of the employment contract and any other agreement; the conduct of the employer including whether the employer has acted consistently; the nature of any undertakings by the employer and whether the undertakings were given by a person of the requisite authority; the law, practice or custom relating to the renewal of temporary contracts or the conversion of temporary contracts to permanent ones; the extent to which there have been repeated renewals; the availability of a post on the educator establishment; the rights and entitlements of the governing body of the public school; the public interest and the nature and scale of undertaking the provision of public schooling.
122. In casu the maximum number of times a fixed term contract had been rolled over is once viz. in the case of Dagadu and that of Kgasi. The contract of Gaonakala had not been rolled over at all. There is in fact nothing in the evidence before me that shows this to have been the contention of the applicants. Even if it were and I am satisfied that it was not, the number of times these contracts had been rolled over cannot be said to have created a reasonable expectation of further renewal or permanency.
123. It was the contention of Gaonakala that Morake had had a personal vendetta against him and therefore did not renew his contract. The evidence suggests that he had drawn this conclusion from her attitude towards him for having associated with Dagadu and Kgasi whom she had considered difficult employees.
124. His further contention and argument in this regard pertained to his having been told that he was appointed in a substantive funded vacant post and therefore an expectation had been created by this very fact.
125. The reasons put forward by the respondent however for the non renewal of his contract of employment I find compelling.
126. Gaonakala had at the time of the termination of his fixed term contract been in the respondent’s employ for a short while of 4 months only and without his contract having been renewed.
127. The further and most compelling reason for the non renewal of the fixed term contract of Gaonakala was that he was through his own testimony in fact not qualified to teach.
128. The circumstances prevailing in respect of Gaonakala militate against a conclusion that he could have had an expectation that his contract would be renewed.
129. In particular the evidence suggests that he had been unable to hold a teaching position at the many schools at which he testified he taught for that very reason.
130. I am therefore satisfied to hold as I do that Gaonakala did not have any reasonable expectation that his contract would be renewed or that he would be appointed on an indefinite basis. Consequently the termination and non renewal of his contract at the end of December 2019 cannot be said to have been an unfair dismissal as contemplated in S186(1)(b) of the LRA.
131. Even the fact that the subjects that he taught were still being taught at the school does not assist Gaonakala. In this regard it was the testimony of Pelesi in relation to its not being the norm to appoint educators without a SACE certificate that sometimes there prevails circumstances which led to pressure to appoint an unqualified educator when they were unable to source professionally qualified educators.
132. Regarding Dagadu the evidence shows both Morake and Maele finding him an aggressive person and difficult to work with. Both testified to his refusing to obey reasonable instructions with Maele also testifying that he had not met the post profile for 2020.
133. The evidence shows further that all of the applicants had not complied with the timeous submission of their marked scripts and assessments.
134. In the case of respect of Dagadu the testimony of Thole is particularly significant. I refer here to Thole’s testimony that Dagadu had said that he had completed the marking task but had not submitted his marks as he knew that to do so would bring Thole to the school in order that he may have him address the issue of the complaint about Morake. This was not tested in cross examination and accordingly stands.
135. This conduct represents a particularly cynical attitude on the part of Dagadu and can only be damaging of the employment relationship. It cannot support Dagadu’s contention of a reasonable expectation of further employment.
136. Regarding the alleged unfair dismissal of Dagadu the overall evidence is of his having an antagonistic relationship with Morake. His relationship is one of having lodged complaints against her and her against him. It contradicts the contention of the existence of a reasonable expectation of renewal of a fixed term contract or of indefinite employment.
137. In respect of the contention of Dagadu that two educators from Zimbabwe viz. Mr. Madondo and Ms Shriza, had had their contracts renewed, it must be noted that these educators had actually applied for the posts while the testimony of Dagadu himself shows that he had not made such application.
138. In such circumstances where he had not actually made an application for the post, Dagadu cannot expect to be appointed into the post or that he had a reasonable expectation that his fixed term contract may be renewed.
139. I find it appropriate at this point to also deal with the document at pages 10 to 13 of appendix B of the respondent’s bundle. This is the document which Dagadu contends is his application for conversion. He supports this contention with reference to the words “awaits conversion” which appear on page 13.
140. While it is not clear from this page itself who the author of the document is, the document itself is not date-stamped as are pages 10 to 12 and signed by bang Morake. I do however accept the argument of the respondent that pages 10 to 13 of the respondent’s bundle purport rather to be an application for a temporary position than an application for conversion.
141. It does however reflect the words “awaits conversion” which leads me to believe that Morake was aware of Dagadu’s quest for conversion to a permanent educator. The words are however not sufficient to conclude that the preceding three pages constitute an application for conversion.
142. I am nonetheless mindful of the contention of Dagadu that there was no need actually for him to make application for conversion in terms of the provisions of the collective agreement 4 of 2018.
143. It is clear that the reference to “application for conversion”, in the main, is rather a reference to the documents that the applicants submitted for the process of conversion to be effected.
144. The evidence before me shows Dagadu’s placing reliance on what he was informed of at the respondent’s head office when enquiring about the progress with his conversion viz. that it was being processed and that he just had to wait for the result.
145. On the other hand there was the testimony for the respondent that Morake had not received such documentation from Selwe, the department head, to whom Dagadu allegedly had submitted them. It is to be noted that neither the applicants nor the respondent had called Selwe as a witness to these arbitration proceedings. So it is clear that there is a dispute as to whether Dagadu’s documentation had been submitted to head office for consideration in the process of conversion. Be that as it may there is clearly a profile that has to be met for any educator for conversion to meet in order for the conversion to be successful. Particularly relevant is how the educator is qualified. Here I find myself in agreement with the respondent that Dagadu’s qualifications render him able to teach in a secondary or high school and not in a primary, intermediate or senior phase school.
146. Especially noteworthy is the academic transcripts of Dagadu which reflect his qualification for vocational training, which qualification is relevant for the teaching of school leavers i.e. pupils at the end of their schooling. On a balance of probabilities this alludes to pupils and the end of their high school years, again leading to a conclusion on balance that his qualifications enable him to teach in a high school.
147. I am further satisfied that the academic transcripts of Dagadu show that he is qualified to teach in a high school and this therefore is what his teacher certificate is related to i.e. the academic transcripts.
148. This is clearly one valid reason for the non-renewal of Dagadu in 2020 and one which would negate any expectation of the renewal of his fixed term contract of employment or indefinite employment.
149. A further valid reason for the non appointment of Dagadu in 2020 is the fact that he does not possess a SACE certificate, which is a further requirement for eligibility for conversion and consequently appointment into a permanent position.
150. Although Dagadu read from a document during his re-examination which he contends was a SACE certificate this document had not been presented as part of the applicant’s bundle of documents for testing by the respondent. It was in fact the testimony of Morake that Dagadu had only a provisional registration with SACE.
151. It must also be noted that Dagadu had testified in evidence in chief on the same question of his certification that he had submitted his SACE documentation. This document was however also not presented in the applicant’s bundle. This would however have been the most appropriate point to testify as to whether or not he has a SACE certificate as directed by the words in collective agreement 4 of 2018 regarding the eligibility for conversion and to support it with the necessary documentary evidence.
152. On a balance of probabilities therefore I am satisfied that Dagadu is not in possession of a SACE certificate.
153. I am consequently satisfied that Dagadu was not eligible for conversion in terms of collective agreement 4 of 2018.
154. In this regard therefore I am satisfied that he has not established the existence of a reasonable expectation that his contract would be renewed or that he would be appointed into a position indefinitely.
155. Furthermore the contention of the applicants that Thole had promised them employment at a school on his circuit other than Colston was refuted by Thole. The evidence shows in any event that Thole is not authorized to make any job offer to educators and consequently the applicants cannot rely on such a statement were it in fact made. I have in any event accepted the rebuttal by Thole of the applicants’ claim in this regard.
156. Furthermore the mere fact that other contracts may have been renewed does not in and of itself establish the existence of a reasonable expectation on the part of the applicants. This is by reason of the fact that S186(1)(b) of the LRA speaks to expectation in the mind of an employee brought about by some promise or prior practice on the part of the employer. In other words the conduct of the employer in creating a reasonable expectation must relate to the employee him or herself and not others within their employ.
157. To further illustrate this point one needs to ask what the respondent did or said to the applicants which allegedly created the expectation in their minds that their contracts would be renewed. There is no evidence whatsoever of any past practice or any promise made to the applicants by respondent, to sustain a cause of action based on a reasonable expectation of a renewal. What the respondent may have done to other employees in its employ cannot create any such expectation on the part of the applicants. The expectation is a subjective one judged in accordance with an objective standard.
158. Furthermore, I must consider whether there were reasons sufficiently compelling for the respondent to terminate the contracts of employment of the applicants. The evidence in this regard shows as stated above the applicants failing to comply with protocols in respect of the submission of marks and assessment. It is to be noted that the testimony in this regard refers not only to Dagadu and Gaonakala but also to Kgasi.
159. Further evidence is also to the effect the Dagadu was unco-operative, not wanting to follow the instructions of Maele but opting rather to do things his way.
160. The further testimony was also to the effect that the post profile of Dagadu’s position had changed in 2020 and that he no longer met the curriculum needs off the school. He was also unqualified to teach at Colston as his teacher’s qualification shows that he is qualified to teach at a high school and not at a primary school. Gaonakala was unqualified to teach at all.
161. Further testimony was that neither of them had a SACE certificate and none was handed into evidence in this regard.
162. Most importantly however is the testimony that suitably qualified educators who met all the requirements for appointment had been found and appointed for 2020.
163. I am satisfied that the afforegoing represents sufficient good reason for the respondent not to have renewed the contracts of the applicants and therefore that such non renewal does not constitute a dismissal as contemplated in S186(1)(b) of the LRA.
164. Having thus considered all the evidence presented at this arbitration I find that there did not exist any reasonable expectation on the part of the applicants that their contracts of employment would be renewed or that they would be employed on an indefinite basis.
AWARD
165. This application for relief in terms of the Labour Relations Act 66 of 1995 as amended is dismissed.
COMMISSIONER: L. MARTIN
11 March 2021
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