Commissioner: Gail McEwan
Case No.: ELRC571-20/21 WC
Date of Award: 17 June 2021
In the ARBITRATION between:
NEHAWU obo CHARITY CHIKURUNHE
THE DEPARTMENT OF HIGHER EDUCATION & TRAINING WESTERN CAPE & WEST COAST TVET COLLEGE
(First Respondent) (Second Respondent)
Union/Employee’s representative: Khunyiso Matroos
Employer’s representative: Mario Boezak
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held virtually, with the consent of the parties, on 3 June 2021. Present was Charity Chikurunhe (employee) who was represented by Khunyiso Matroos (NEHAWU). The Department of Higher Education & Training (DHET) (first respondent) was represented by Mario Boezak (Assistant Director Labour Relations DHET) and the West Coast TVET College (WCC) (second respondent) was represented by Wesley Kelly (HR Coordinator). These proceedings were digitally recorded and both parties electronically sent in bundles of documents.
(2) On record is a condonation ruling for the late referral of an alleged unfair dismissal dispute which was granted in a ruling dated 22 April 2021. In that Ruling the Commissioner wrote that the dispute concerns the non-renewal of her fixed term contract. Be that as it may it is the function of the arbitrator to determine the true nature of the dispute. Also on record is a Joinder ruling in which the West Coast TVET College (WCC) was joined as a second respondent.
(3) There were some preliminary issues raised involving the dismissal on 22 February 2020 when Chikurunhe was removed from Persal (the employee data base) and the non-renewal of her fixed term contract on 19 August 2020. I advised that these points would be dealt with during the arbitration proceedings and arbitration then continued.
THE ISSUE IN DISPUTE
(4) I am required to determine on a balance of probabilities whether the dismissal of Chikurunhe was fair. Chikurunhe is a foreign national and her contract has been renewed over the past eleven years in sync with the renewal of her asylum seeking permit.
THE BACKGROUND TO THE DISPUTE
(5) Chikurunhe started working for the employer on 3 February 2009; worked as a lecturer; earned R25 778.00 per month and her fixed term contract was not renewed after 19 August 2020. NEHAWU confirmed that the issues in dispute were the following: 1. Removal from Persal on the 22 February 2020 without consultation of all stakeholders. 2. Non-extension of contract that ended on 19 August 2020. 3. No notice of termination nor termination letter had been received. 4. Contracts had always been in line with the applicant’s refugee status renewals. The applicant could not renew them last year due to the lock-down hence the minister of Home Affairs issued gazettes that they be deemed extended. Permit has since been extended for 4 years on 16 May 2021. Chikurunhe is seeking to have her contracts renewed as had happened in the past eleven years and to be compensated for the loss of earnings for the period during which she had been unemployed.
(6) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
The employees’ version and testimony was as follows:
(7) Charity Chikurunhe testified that she had completed eleven years’ service on a continuous basis and then her services were terminated without any letter to that effect, no explanation had been given and without any notice having been given. To date the contracts given to Chikurunhe had been in line with the renewal of her status as a refugee since 2008. The first contract of 2020 ended on 19 August 2020 in line with her refugee permit and had been for a six months period from 4 March 2020 to 19 August 2020. However this contract renewal had not been with the DHET but with the governing council of the college at WCC. This had not been accompanied with any explanation as to why she had been removed from Persal and put on the college Councils’ payroll. That contract ended on 19 August 2020 without any communication with Chikurunhe taking place. Chikurunhe had sent emails to HDET and the HR at WCC but never received any response. The HR at WCC (Andy Swartbooi) called a meeting on 5 October 2020 but had said that he never understood what had been gazette by the Department of Home Affairs. Chikurunhe explained that those gazettes extended the refugee permits during the national lockdown period due to the Covid-19 pandemic. The local refugee office had then sent an explanation of the gazettes to Swartbooi (EE bundle Annexure 5) dated 7 October 2020 and which explained that Chikurunhe was legally permitted to remain in South Africa and is entitled to work and study. Chikurunhe eventually managed to renew her permit at Home Affairs on 21 May 2021.for a further four years. Chikurunhe is seeking retrospective re-instatement to Persal so that it seems that she had never been dismissed by the HDET. Chikurunhe explained that DHET had attempted to give her a letter of termination shortly before conciliation took place but she had refused to sign it. Chikurunhe is currently the sole breadwinner and this period of unemployment had created much stress in her life. Chikurunhe has two children; the eldest is at university and the last nine months been hell without any income.
(8) In cross-examination by the DHET, Chikurunhe confirmed that page 46 of the bundle is a print out from the Persal system relating to her. The termination date is recorded as being 22 February 2020 when her services had been terminated. It was agreed that on 24 February 2020 Chikurunhe had been employed by WCC and signed a fixed term contract with the college council. Chikurunhe stated that she found out that she was no longer employed by DHET when she received her first salary from WCC on 25 March 2020. It was agreed that by 25 March 2020 her employer had been WCC as they had paid her salary. Chikurunhe said she had sent an email with the assistance of NEHAWU to the DHET although she had never received any response. After her termination by DHET Chikurunhe explained that her next step had been to sign the contract with WCC which continued until 19 August 2020. Thereafter Chikurunhe had approached the ELRC about her alleged unfair dismissal some five to six months later when she lodged her dispute. Chikurunhe insisted that she had been granted condonation. Referring to ER bundle pages 15 to 18 Chikurunhe confirmed that this was her referral documents for this dispute. In point 2 of said referral Chikurunhe agreed that she had written in her date of dismissal as being 19 August 2020 which is the same date that the dispute arose. It was put to Chikurunhe that the condonation ruling makes no mention of 22 February 2020 as Chikurunhe never mentioned that date as being part of her dispute. It was put to Chikurunhe therefore that 22 February 2020 was not part of the condonation ruling. Chikurunhe insisted that this date was in her document E4 (Application for Rescission of Ruling) and it was pointed out that this had been before condonation had been granted. Chikurunhe confirmed she had completed the application for condonation form. Chikurunhe received her first salary from WCC on 25 March 2020 after she had started on her fixed term contract on 4 March 2020. She was then paid for six months by the WCC and not by the DHET. It was put to Chikurunhe that as she never received any salary for six months, it meant that she was no longer an employee of the DHET. It was further put to Chikurunhe that having received nothing from DHET for six months she had never said anything. It was agreed that WCC had terminated the employment of Chikurunhe in terms of her six months contract on 19 August 2020. It was pointed out to Chikurunhe that on 22 February 2020 she had never had any meetings with WCC in respect of the removal of her name from Persal. Chikurunhe explained that this was correct as at the time the country had been in lockdown. It was put to Chikurunhe that for six months during 2020 she had been paid by WCC and there had been no need for her to have been paid by DHET.
(9) In cross-examination by WCC, Chikurunhe confirmed that her name had been removed from Persal on 22 February 2020. Chikurunhe explained that this meant that WCC was her employer with effect from 23 February 2020. Chikurunhe was reminded that she was under oath and then agreed that she only signed her contract with WCC on 4 March 2020 for the period until 19 August 2020. It was put to Chikurunhe therefore that she had been unemployed for the period 23 February 2020 to 3 March 2020, to which Chikurunhe disagreed. Referring to ER bundle page 55 Chikurunhe agreed that she had signed the contract with WCC on 4 March 2020. Referring to ER bundle page 48 Chikurunhe confirmed that in December 2019 she had received no communication from WCC regarding the status of her permit. Chikurunhe said she had never received a letter from the principal of WCC confirming the termination of her services. Mr. Chikurunhe (her husband) had also been in the employ of the WCC in December 2019 after which his services had been terminated. It was put to Chikurunhe that her husband had been dismissed due to the illegitimate documents he had to be in South Africa. Chikurunhe said that there had been no reasons for her services to have been terminated. Chikurunhe confirmed that she had made application for her pension fund withdrawal and was aware that would be abnormal if still employed by the DHET. Chikurunhe was reminded that the reason she had given on her pension fund withdrawal application had been the “termination of her services.” Chikurunhe confirmed that she had made application to withdraw her pension fund holdings and had never objected to signing the fixed term contract with WCC despite the contract being for a fixed term of six months. Chikurunhe confirmed that she was aware her contract would end on 19 August 2020.
(10) In re-examination, Chikurunhe confirmed that she had never received a letter of termination from DHET. Chikurunhe had signed the contract with WCC as she needed the work. In 2015 Chikurunhe had received a migration letter confirming her transfer to the DHET. Chikurunhe agreed that in the Gazettes the Minister of Home Affairs had due to their offices being closed stated that all permits would remain valid for a period of time. Chikurunhe also confirmed that Andy Swartbooi (HR at WCC) had said that in the event that the college was wrong then they would re-instate her but that had never happened. The letter from the refugee office is Annexure 4 as submitted by Chikurunhe.
The employers’ versions and testimonies were as follows:-
(11) Andy Swartbooi (deputy principal of WCC and witness for the DHET) testified that Chikurunhe had been a lecturer at the WCC at the campus based in Atlantis. Chikurunhes’ last contract with DHET ended in February 2020. The Department of Home Affairs in about August 2019 required that all foreign nationals supply compliant documentation so that they could be nominated for posts at the college. In October 2019 Chikurunhe amongst others supplied such documents which were forwarded to the Department of Employment and Labour and it was found then by the Department of Home Affairs that not all the documents submitted could be verified. There had been engagement with those affected which resulted in Chikurunhe (amongst others) not being nominated for a new contract. The authenticity of her documents supplied could not be authenticated by the Department of Home Affairs. Chikurunhe had no documents to work in South Africa at that time. This had been communicated to Chikurunhe. Thereafter Chikurunhe engaged the assistance of the local branch of the Department of Home Affairs. A Mr. Davids from Home Affairs contacted Swartbooi and the principal at the beginning of March 2020 confirming that Chikurunhe was then allowed to remain in South Africa. The documents seen allowed Chikurunhe to remain in South Africa with effect from 4 March 2020 to 19 August 2020. Swartbooi and the principal of WCC engaged with Chikurunhe as she had been working on contracts for a long period of time. As Chikurunhe was only permitted to be in South Africa for the period March 2020 to August 2020 the WCC granted her a fixed term contract for that period directly through the WCC. Chikurunhe went back to work with effect from 4 March 2020. When the fixed term contract expired on 19 August 2020 her documentation could still not be authenticated by Home Affairs and many meetings had been held in this regard with Chikurunhe. As her documents to be in South Africa could not be authenticated she was not put forward to DHET for a possible position with them. There had been at least four engagements with Chikurunhe where it had repeatedly been explained that DHET and WCC could not enter into any further contracts with her if her documents / permit could not be verified. On 4 March 2020 Chikurunhe was given a six months contract in line with the documents received from the Department of Home Affairs. At that time Chikurunhe and others affected had called in on an almost daily basis. They were all told that they needed verified documents from the Department of Home Affairs. Permanency letters had been issued to those who had met the requirements. Referring to EE annexure 6 Swartbooi pointed out that with effect from 1 July 2020 applicants for permanent posts were required to be in possession of a permanent residence or a naturalization documentation – neither of which Chikurunhe had in her possession. A letter in this regard had been sent to everyone so affected, Chikurunhe is required to submit either of those documents after which she could then be nominated for a permanent position. Chikurunhe never submitted the requisite documents.
(12) In cross-examination by the WCC, Swartbooi confirmed that in March 2020 there was provision in the budget to make the fixed term appointment of Chikurunhe who could not have had any expectation of her contract being renewed again due to the letter received from the Department of Home Affairs.
(13) In cross-examination by DHET, it was put to Chikurunhe that her documents were not verified by the Department of Home Affairs and hence had not been authenticated as is required. It was further put to Chikurunhe that WCC had given her a fixed term contract in line with the letter received from Mr. Davids from the Department of Home Affairs. It was pointed out that the documents had been supplied by Chikurunhe in October/November 2019. Mr. Davids gave the documents to WCC which allowed Chikurunhe to be in South Africa for the period 4 March 2020 to 19 August 2020 after her documents had been verified. HDET was aware that Chikurunhe got hold of gazettes to extend her term in South Africa. The gazettes supplied had no legal bearing on the employment of Chikurunhe. The extension of her permit does not cover the criteria of employment which needed a valid work permit. It was put to Chikurunhe that she could have had no expectation of the renewal of her contract and as she had worked for eleven years at the WCC and she is aware that when she supplied her extensions then she would get a contract. Chikurunhe had been unable to give valid documentation in October/November 2019. Chikurunhe was reminded that she does this process every four years and notwithstanding the pandemic the DHET stands by the fact that her documentation had not been authenticated at that time and hence she had not been nominated for a post. It was explained that the extension applied to those in the country but the DHET required the authentication of those documents. The first set of documents submitted by Chikurunhe had been found to be fraudulent. The Department of Home Affairs then allowed Chikurunhe to be in South Africa from March to August of 2020. Swartbooi therefore had not received any renewal from the DHET. The contract which Chikurunhe had with the DHET ended on 22 February 2020 whilst others in the same boat had ended on 31 December 2019. The WCC had been willing to nominate Chikurunhe as the post she sought had been funded and due to her long service. The deadline for applications had past and Chikurunhe made a plea to the Department of Home Affairs who in turn wrote a letter to WCC which allowed Chikurunhe to be placed on a six month fixed term contract with WCC. The post previously held by Chikurunhe had been filled by another. Chikurunhe had been nominated for a post but one had to understand that each job role was different as were the Persal numbers. The contract with DHET ended for Chikurunhe on 22 February 2020. There had been communication in this regard with Chikurunhe and it was not unreasonable to expect that such communication had been received by her.
(14) All parties having been given the opportunity to have their say and NEHAWU having nothing to add in re-examination of the two respondents, arbitration was concluded. It was agreed that closing arguments would be sent to me by no later than 17h00 on Thursday 10 June 2021. Closing arguments were received from the employee (not NEHAWU), WCC and the DHET, the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(15) In October 2019 the DHET required that those working at the WCC be nominated for posts funded by DHET in order for their refugee status and documentation to be authenticated by the Department of Home Affairs. At the time the documentation submitted by Chikurunhe was was unable to be authenticated by the Department of Home Affairs. The closing date for such applications past and without authenticated refugee documents the DHET was unable to consider Chikurunhe a further contract with them and hence had no option other than to remove her name from Persal which occurred on 22 February 2020. It is unfathomable for Chikurunhe to claim that she had been unaware of what was happening. In the circumstances I find on a balance of probabilities that the removal of Chikurunhe from Persal was fair as she had failed to provide verifiable documents when they had been sent to the Department of Education for authentication purposes. This technically constituted a dismissal and was done in accordance with the unverifiable documents supplied by Chikurunhe linked to her refugee status in South Africa. There is nothing unfair about this dismissal as without the correct authenticated documents it would have been unlawful for Chikurunhe to have continued to be employed by the DHET and hence her name was removed from Persal. It should be remembered that this was done before the Covid pandemic reached South Africa.
(16) The WCC could not nominate Chikurunhe any more for a post with DHET due to the unverifiable documentation she supplied; the deadlines for such applications past and subsequently all available posts with the DHET had been filled. On 2 March 2020 WCC received a letter from the Department of Home Affairs to the effect that Chikurunhe was able to remain in South Africa for the period up to 19 August 2020. No reason was given in that letter for the non-renewal of the permit for this limited duration. Acting on this information the very next day the WCC entered into a fixed term contract with Chikurunhe for the period 4 March 2020 to 19 August 2020 which was funded directly through the council board of the College. There is nothing unfair in these actions and it is reasonable to believe that Chikurunhe was fully aware of the reasons why the WCC could only offer her a fixed term contract in line with the directive issued by the Department of Home Affairs. It should be remembered that this was done before the Covid pandemic reached South Africa.
(17) In confirmation that Chikurunhe was fully aware of what was happening, she made application for a refund of her contributions made to the Pension Fund of the DHET. On her application for the refund Chikurunhe had given the reason for her withdrawal as being the termination of her services. Chikurunhe confirmed that the refund had been paid to her and confirmed that this was not permitted for those still in the employ of the DHET. Additionally Chikurunhe confirmed that she was no longer being paid by the DHET and was then being [paid by the WCC directly.
(18) Chikurunhe continued to work as a lecturer at the WCC for the duration of her fixed term contract. There could never have been an expectation of the renewal of that contract on the basis of the directive issued by the Department of Home Affairs dated 2 March 2020 that Chikurunhe was legally only entitled to remain in South Africa until 19 August 2020. In the circumstances there was nothing unfair about her dismissal on 19 August 2020 as Chikurunhe was not permitted at law to be employed in South Africa at that time. By the end of her fixed term contract on 19 August 2020 the pandemic in South Africa was in full swing but the hard lockdown had ended and lower levels of restrictions applied in terms of the Disaster Management Act 57 of 2002. Chikurunhe was unemployed and there was still a directive in force from the Department of Home Affairs that she could not remain in South Africa after 19 August 2020.
(19) During her evidence Chikurunhe made reference to the Gazettes The first Gazette contained in her bundle of documents is as follows: Government gazette dated 10 June 2020 No. 43420 in section 19 states: Extension of Validity Period of Asylum Seeker Permit and Refugee Status which states: “An asylum seeker permit lawfully issued in terms of section 22 of the Refugees Act,1998 (Act No. 130 of 1998) and a refugee status granted in terms of section 24 of the Refugees Act, 1998, which expired from 15 March 2020, or is to expire or which status was to be withdrawn during the period of the national state of disaster, is deemed to have been extended up to and including 31 July 2020.” By the time this matter was promulgated on 10 June 2020 Chikurunhe was still able to remain on her fixed term contract until 19 August 2020 in terms of the directive sent by the Department of Home Affairs which gave Chikurunhe more time to remain in South Africa than the gazetted period until 31 July 2020. Further extensions were gazetted extending the above arrangement to 31 October 2020 then to 31 January 2021 and again to 31 March 2021. The problem with these extensions is that according to the initial gazette the extension were granted to those whose refugee status expired from 15 March 2020. This therefore does not apply to Chikurunhe as in October / November 2019 the documents submitted could not be verified by the Department of Home Affairs. Hence that Department issued a letter dated 2 March 2020 allowing Chikurunhe to remain in the country until 19 August 2020. This meant that a decision had been taken by the Department of Home Affairs that Chikurunhe could only remain in the country until 19 August 2020 which was before it had been necessary to promulgate that extensions to permits would automatically be granted whilst the Department of Home Affairs closed their offices due to the pandemic.
(20) I have given a chronological analysis of the events which led Chikurunhe declaring this dispute in the first instance. I will now turn to the issues which were narrowed to be in dispute.
(i) The removal of Chikurunhe from Persal on 22 February 2020 was because during the period around October / November 2019 Chikurunhe had unverifiable documentation to be in South Africa. That decision came directly from the Department of Home Affairs resulting in the WCC being unable to forward her name to be considered for a post with DHET. Therefore it made sense that after the deadline had past for application the DHET removed Chikurunhe from Persal. There was nothing the DHET or ‘stakeholders’ could have done regarding that decision as it is the Department of Home Affairs who makes the decision as to whether or not a foreign national had the correct documentation. There is nothing unfair about the removal of Chikurunhe from Persal as the decision lay solely at the hands of the Department of Home Affairs.
(ii) Regarding the non-extension of the fixed term contract entered into with Chikurunhe it was due to the letter received from the Department of Home Affairs stating that she could only stay in South Africa until 19 August 2020. There is also nothing unfair about not extending a contract after it was clear that it was only for a period of six months. Chikurunhe is well aware that her contracts follow the extension of her permit and refugee status and with the directive from the Department of Home Affairs the renewal of documentation had only been until 19 August 2020.
(iii) In so far as letters of termination go and notice being given, it is trite that WCC forward nominations for appointment to the DHET. Chikurunhe handed in unverifiable documents which resulted in her name not being put forward to the DHET for consideration. Without correct verifiable documentation a foreign national is not allowed to be employed in South Africa. Chikurunhe had to have been fully aware that the problem was the documentation handed in which was unverifiable by the Department of Home Affairs. HDET never received an application from WCC for Chikurunhe so could not be expected to have either appointed her or give her notice. The same applies to WCC who due to the directive received from the Department of Home Affairs were only able to enter into a fixed term contract with Chikurunhe. Again there is no unfairness on the part of the DHET or the WCC.
(iv) It is trite that Chikurunhe had always been employed on a contract basis in line with the applicant’s refugee status renewals. It was not due to the lockdown that Chikurunhe could not renew her permit and refugee status but because the Department of Home Affairs had issued a directive that Chikurunhe could only remain in South Africa until 19 August 2020. The decision was made before and restrictions were made due to Covid arriving in South Africa. The gazettes referred to as already said are not applicable to Chikurunhe as the Department of Home Affairs had already made a determination that she could only remain in South Africa until 19 August 2020.
(22) It is accepted that Chikurunhe had her permit to remain in South Africa and to work renewed on 26 May 2021 for a further period of four years. This means that when the DHET or the WCC post vacancies now or in the future Chikurunhe is able to make an application or any post that aligns with her qualifications, experience and expertise.
(23) The two dismissals from DHET and WCC on 22 February 2020 and 19 August 2020 were not unfair as they had been done strictly in accordance with unverifiable documentation submitted by Chikurunhe and the directive issued by the Department of Home Affairs. No unfair labour practice was committed by the WCC when the fixed term contract ending 19 August 2020 was not renewed as this had been done in line with the directive received from the Department of Home Affairs that Chikurunhe was only permitted to remain in South Africa until 19 August 2020. Consequently this case is dismissed.