ELRC1063-19/20 NW
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Award Date:
05 August 2021
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CASE NO.: ELRC1063-19/20 NW
In the matter between:-
SADTU obo TSHEGOFATSO MAKOBO
AND 1 OTHER APPLICANT
and
DEPARTMENT OF EDUCATION- NW RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 05 July 2021
DATE OF AWARD: 05 August 2021
SUMMARY: Section 186 (2) (a) unfair dismissal
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 19 October 2020 and 05 July 2021.
2. The Applicants, Tshegofatso Makobo and Mosetsanagape Florence Moroka were represented by Mr B.T Tshilo, an official of SADTU. The respondent was represented by Mr K.K Keetile from its offices. The parties submitted the closing arguments by the 13 July 2021. The applicant’s bundle is marked A and the respondent B. The proceedings were mechanically recorded.
BACKGROUND TO THE ISSUE
3. The Applicant had referred a dispute about unfair dismissal to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether the Applicants were dismissed. In doing so, I must determine if their fixed term contracts of employment that ended on 31 December 2019 were extended. If I find that the applicants were dismissed, I must determine if it was procedurally fair and appropriate relief.
AGREED FACTS
5. The parties agreed on the following :-
5.1 Ms Makobo and Ms Moroka were employed on fixed term contracts starting from 02 April 2019 and 01 January 2019 respectively until 31 December 2019.They were employed at Modisakoma Intermediate School.
5.2 The applicants are not professionally qualified educators.
5.3 In December 2019, the Circuit Manager responsible for the Cluster had a meeting with the principals and contract educators from different school to address issues relating to appointments and re-appointments of temporary educators for the academic year 2020 using the Departmental Circular no. 42 of 2018.
5.4 The Applicants reported back for duty in January 2020 and rendered services until :
5.4.1 Ms Makobo, 31 January 2020 earning a monthly salary of R14 749.25 (R176 991.00 per annum);
5.4.2 Ms Moroka, 10 February 2020 earning a monthly salary of R18 088.50 (R219 062.00 per annum).
SURVEY OF EVIDENCE
6. Tshegofatso Makobo testified that she worked at Modisakoma Intermediate School on contract until 31 January 2020. She holds the National Diploma in Early Childhood Development and that she was registered for a B.Ed degree. On 09 December 2019, she attended a meeting convened by the Circuit Manager.
7. In meeting temporary educators who were professionally unqualified but still studying were encouraged to finish their qualifications. They were informed that their fixed-term contracts would be extended to end of 2020 academic year.
8. The principal gave her and other unqualified educators at the school assumption of duty forms to fill for the 2020 academic year. She returned to work in January 2020. She was not turned back by the school but was allocated a class as usual. She was paid January 2020 salary as usual.
9. She attended a meeting with the Principal and her colleague on 14 February 2020, where to her surprise, she was told that her services were terminated. According to her, her contract was extended to the end of 2020 academic year.
10. During cross-examination she said she was unfairly dismissed and seeks 12 months compensation. In December 2019, she and other temporary educators had filled in Assumption of Duty forms for the 2020 academic year. The forms disappeared and they do not know what happened to them. The circuit manager promised them that he would extend their contracts.
11. The Circuit Manager encouraged the professionally unqualified educators to study and finish their qualifications and he told them that he was signing for the assumption of duty forms, but they must give him proof that they have registered in January 2020. There was no instruction that they should or should not return in January.
12. Mosetsanagape Florence Moroka testified that she worked at Modisakoma Intermediate School until 10 February 2020. She holds the qualification National Diploma in Early Childhood Development and she was registered for a BEd degree.
13. On 09 December 2019 she attended a meeting convened by the Circuit Manager. Temporary educators who were professionally unqualified but still studying were encouraged to finish their qualifications. They were informed that their fixed-term contracts would be extended to the 2020 academic year.
14. The principal gave her and other unqualified educators at the school assumption of duty forms to fill for the 2020 academic year. She returned to work in January 2020. She was not turned back by the school but was allocated her class as usual. She was paid January 2020 salary as usual.
15. She attended a meeting with the principal and her colleague on 14 February 2020, she was told of her termination of service. As far as she was concerned here contract was extended to 2020 academic year.
16. During cross-examination she said that she was unfairly dismissed and seeks 12 months compensation. In December 2019, she and other temporary educators had filled in assumption of duty forms for the 2020 academic year. The forms disappeared and they do not know what happened to them.
17. The Circuit Manager encouraged the professionally unqualified educators to study and finish with their qualifications. He told them that he was signing for the assumption of duty forms but in January 2020, they must give him proof that they have registered.
18. Molebogeng Petrus Motshwaedi testified for the respondent that he is the Principal of Modisakoma Intermediary School. He held that position since 1999. Educators are notified verbally of their period of contracts. Sometimes, letters are issued.
19. He was part of the meeting of 09 December 2019. The Circuit Manager convened the meeting to discuss Circular 42 in preparation for recruitment of the 2020 academic year. Clause 13.3 of the circular prohibits principals from recruiting professionally unqualified educators.
20. The department allows for the recruitment of professionally unqualified educators when there is a challenge of getting suitable qualified educators. Their school struggles to attract suitably qualified educators because it is in a remote rural area.
21. The circuit manager informed the applicants that if they did not finish their studies, they would not be appointed in 2020. They did not fill in assumption of duty forms in that meeting. He denied that the applicants were promised that if they were registered their contracts would be renewed.
22. During cross-examination, he conceded that the circular was meant to regulate recruitment and appointment in the 2019 academic year. However, it remained applicable to the 2020 academic year because there was no recruitment circular that replaced it. The manager informed them that professionally unqualified educators would not be re- appointed the following year.
23. The Applicants returned to school in January 2020, to do hand-over of duties to their colleagues and as volunteers. He did not inform the department about their volunteering because he was still looking for qualified replacements. They were paid a salary at the end of January 2020 like all other contract educators were paid for January even those who had left the school. Volunteers are not paid a salary. He did not have powers to employ.
24. The service records of Ms Makobo and Ms Moroka show that they were in the service of the department until 30 January 2020 and 10 February 2020 respectively. Their service record was HR matter. The department had captured the service record incorrectly.
25. There was no urgency to extend the applicants’ contracts programmatically in terms of clauses 4 and 5 of Circular 42 because Fundza Luschaka candidates were to be recruited in their place.
26. There were vacancies for Fundza Luschaka candidates in 2020.He informed the Applicants of their termination, on the instruction from the Circuit Manager.
27. Oduetsi Patric Metsi testified that he is the Circuit Manager for Naledi Circuit and has held this position since 2018. He convened the meeting of 09 December 2019. There were about 9 unqualified educators from the applicants’ school. The purpose of the meeting was to discuss Circular 42.
28. In the meeting he informed unqualified educators that they would not be appointed the following year. The reason was that the department had sent people to universities to qualify as educators (Fundza Lushaka bursars). On completion, the department has a contractual obligation to employ them but was unable do so because unqualified people occupied the posts.
29. The unqualified educators were given enough time to complete their qualifications and would not be given more time in the 2020 academic year. He referred to clause 13.3 of Circular 42.
30. During cross-examination he testified that he does not employ educators. Circular 42 regulates recruitment for the 2019 academic year. It was still applicable for 2020. However, it would have been more appropriate to use a circular that specifically regulates recruitment for the 2020 academic year.
31. The Applicants were appointed for 2019 despite being unqualified. Sometimes, schools struggle to attract qualified educators. In such cases, the department employs unqualified educators who are still studying. Fundza Lushaka bursars are sometimes appointed prior to finalising their qualification.
32. The appointment of unqualified educators with a partial degree or diploma qualification was common. When he found out that the Applicants were on duty at the school, he was very upset with the school principal. He instructed the principal to tell them to leave because they were not supposed to be at work. Further, their presence at work could lead to possible litigation against the department.
33. The Applicants were in the service of the department in January 2020.Their January 2020 salaries were paid erroneously but because they had services rendered they were entitled for payment. He was not made aware that the applicants were volunteering. All contract workers received a salary in January 2020, including the applicants. This was an error from the department.
CLOSING ARGUMENTS
34. The applicant argued that both the Principal and the Circuit Manager made a verbal promise to them that their fixed-term contracts would be extended. Both the Principal and the Circuit Manager denied this. Their evidence must be approached with caution because it is full of contradictions. Clause 4 of Circular 42, provides that ‘the contracts of temporary educators who are in schools that retain or gain posts and are not affected by the placement of Fundza Lushaka will be extended.
35. Clause 5 of the circular provides that ‘a programmatic extension of contracts will be done through a System Control Change (SCC). In addition, Circular 42 provides that these measures must be implemented before the closure of school for that academic year as a matter of extreme urgency (clause 6).
36. The Principal and the Circuit Manager testified that the school generally struggled to attract suitably qualified educators, including Fundza Lushaka bursars, because of its rural and remote location. Thus, the applicants’ contracts qualified for this programmatic extension and were indeed extended for the 2020 academic year.
37. In Southgate v Blue IQ Investment Holdings the Labour Court (J 1788/09) [2012] ZALCJHB 39 the court held that regarding the formation of an employment contract: “The contract of employment requires no special formalities for its formation….” These terms may be agreed upon express, impliedly or tacitly”. The Labour court held further that the existence of a contract of employment may even be inferred from the parties’ conduct. It is also not necessary that the parties need to agree on every detail of the contract as is suggested by the respondent.
38. The Responded, had expressly extended the applicants’ contract by virtue of clauses 4-6 of Circular 42. Secondly, the existence of a contract does depend on a written document only. The lack of a written contract for the 2020 academic year does not change the fact that their contract existed.
39. The applicants’ unchallenged evidence is that the respondent did not give them notice in terms section 37 (1) of BCEA, when they terminated their service. The respondent relies on clause 13.3 of Circular 42. Therefore, it was argued that the applicants were unfairly dismissed.
40. The respondent‘s representative argued that respondent did not create an expectation of renewal of fixed term contracts of the Applicants. Both the Principal and the Circuit Manager testified that no assumption of duty forms were signed in the meeting held on 09 December 2019. Other unqualified educators were present but were not called to corroborate the applicants’ testimony that there was an undertaking to renew their contracts. It is also strange that out of nine unqualified educators, only the applicants were promised an extension.
41. The applicants failed to prove the existence of the signed assumption of duty forms. The discussion in the meeting was about the applicants’ failure to acquire a professional qualification and not an undertaking to extend their contracts. Circular 42 of 2018 was discussed in the meeting and it was valid. No other circular was issued to nullify it. Clause 13.3 of the circular provides that no unqualified educator should be recruited.
42. The rendering of service and remuneration of the applicants did not amount to extension of contract of employment for 2020.The applicants relied on Clause 4 and 5 of the Circular. The Principal and the Circuit Manager stated that the school was affected by placement of Funza Lushaka, who are to be considered before recruiting others. According to Clause 5, programmatically extension applies to educators whose contracts were extended based on the unavailability of Funza Lushaka. These two clauses do not apply to the applicants because their contracts were not renewed.
43. Extension of contracts are only valid once the school has completed Annexure D and assumption of duty forms have been submitted on the first school day for the educators. The applicants did not meet these requirements. The dates on the service records reflect the last time the applicants received their salaries. This for audit purposes where the termination date cannot differ with the payment date.
ANALYSIS OF EVIDENCE AND ARGUMENTS
44. It is the respondent‘s contention that the applicants were not dismissed but that their fixed term of contracts came to an end. The applicant bears the onus to establish the existence of dismissal in terms of Section 192 (1) of the Labour Relations Act 66 of 1995 (“LRA”). The onus will shift to the respondent to prove fairness of dismissal once dismissal is established.
45. It is common cause that the applicants’ fixed term contracts of employment came to an end on 31 December 2019. The applicants’ contention is that their contracts were extended to the end of 2020.The applicants are contradicting themselves in that, it is not probable that their contracts were extended after they had ended (31 December 2019). The contract that had ended cannot be revived by an extension.
46. The extension according to the applicants is premised on the allegation that the circuit manager made them sign the assumption of duty forms in a meeting of 09 December 2019. The applicants failed to support their assertion as they did not produce the signed forms. They say they do not know what happened to the forms.
47. It is trite law of evidence that one who alleges must prove. They failed to prove the existence of the forms. It is common cause that there were about 9 unqualified educators who attended the meeting. They failed to call some of these educators to corroborate their contention about signing the forms. Furthermore, there was no explanation why the other 7 unqualified educator did not challenge the ending of their contract as dismissal.
48. I do not accept the applicants’ contention that circular 42 was not applicable. They are contradicting themselves. When it suits them they rely on its provisions, when it does not suit them it was not valid because it relates to 2019 appointments. It is common cause that there was no circular issued that nullified it. In the premise I accept that circular 42 was valid and applicable.
49. Both the principal and the circuit manager denied that the applicants signed the assumption of duty forms. Their contention is that the meeting was about the discussion of Circular 42 and that the applicants and others were informed that their contracts would not be extended, if they did not provide evidence that they have completed their studies qualifying them as educators.
50. The applicants’ argument that in terms of Southgate case it is not a requirement for an employment contract to be formal and that these terms may be agreed upon expressly, impliedly or tacitly is misplaced. In terms of clause 13.1 of the circular, it is a requirement that Annexure D should be completed and submitted to the district director for approval and that signing of the assumption of duty forms must submitted to HR division on the first day of reopening. There is no evidence that this requirement was met.
51. It is further not in dispute that the principal did not have authority to employ educators but to recruit. Therefore, reliance on the actions of the principal for having allowed the applicants to continue rendering services beyond 31 December 2019 is a fallacy. They failed to prove that they were authorised by the respondent to render services beyond 31 December 2019. Thus, it becomes moot to determine if they were volunteering, handing over or waiting for qualified educators to be sourced. The applicants were not authorised to be at school in January 2020.
52. I accept the Circuit manager’s explanation that the principal’s actions were irregular. However, this is an internal affair between the respondent and the principal. The unchallenged fact remains that he lacked authority to employ and therefore, to extend contracts of employment.
53. Another ground the applicants rely on, is payment of their salary for January 2020. It is an unchallenged evidence by the circuit manager that their January salary payment was due to an administrative error by the HR which applied to all other educators that had left the department. This error is corroborated by the fact that once he became aware that the applicants were still at school when he visited the school in February, he immediately instructed the principal to release them.
54. Similarly, payment of their January 2020 salary, fails to prove that the applicants’ contracts were extend tacitly or by conduct. In Imatu and others v City of Johannesburg Metropolitan Municipality and Others [2014] 6 BLLR 545 (LAC) the court held that a bona fide error by the employer would not give employee reasonable expectation of extension. The applicants do not claim reasonable expectation of extension but that payment of salary proves that their contracts were extended. Thus, I am not persuaded that the applicants were paid because their contracts were extended but it was on account of a bona fide error.
55. It is not in dispute that the applicants’ service records provide thus, Ms Makobo’s service ended on 31 January 2020 and Ms Moroka on 10 February 2020. I am persuaded that this is a true reflection of the period the applicants had rendered services to the respondent and were paid for this period. This does not legitimise or create extension of the contract. The circuit manager explained plausibly that this was for audit purposes, their rendering of services corresponds with their remuneration.
56. The applicants are contradicting themselves, at some point they were promised extension of the contracts at another point their contracts were extended on 09 December 2021. I agree with the applicants that there was no promise to extend their contracts as it is clear from their dispute that it is not about reasonable expectation to extend. This contradiction exposes that they are fishing.
57. It is common cause that circular 42 was discussed in the meeting of 09 December 2019. Reliance on the provisions of the circular by both parties, proves the reason why the applicants’ fixed term of contract was extended in the case of the applicants and why it could not have been extended in the case of the respondent.
58. The Applicants relied on Clause 4 and 5 of the Circular. The Principal and the Circuit Manager stated that the school was affected by placement of Funza Lushaka, who are to be considered before recruiting others.
59. Clause 4 provides that ‘the contracts of temporary educators who are in schools that retain or gain posts and are not affected by the placement of Fundza Lushaka will be extended.’ This provision means that temporary educators whose contracts are not affected by the placement of Fundza Lushaka, their contracts will be extended. That is, those affected by placement of Fundza Lushaka, their contracts will not be extended. Holding a different view would be senseless, as this implies simultaneous placement of Fundza Lushaka and contract extension of a temporary educator. Which post would a temporary educator occupy if all the posts are occupied by Fundza Lushaka? Does a temporary educator expect the respondent to create excessive posts solely to accommodate her? According to the respondent’s unchallenged testimony the applicants were affected by placement of Fundza Lushaka as there was intake in 2020. Therefore, no extension.
60. According to Clause 5, programmatical extension applies to educators whose contracts were extended based on the unavailability of Funza Lushaka. The provision does not apply to the applicants because Funza Lushaka were available in 2020. Clause 4 and 5 do not apply to the Applicants.
61. Clause 13.3 of the circular provides that ‘Principal as recruiting officer must not recruit professionally unqualified individuals and must ensure that the SACE certificate corresponds with the academic qualifications’. The respondent‘s explanation that .no unqualified educator should be recruited unless Funza Lushaka are not available is plausible.
62. The provisions of section 37 of BCEA is not applicable to the applicants. The applicants were employed on a fixed term of contract and were aware of the date their contracts were coming to an end. They did not require notice as contemplated in section 37 of BCEA. The applicants should not have been at school in 2020.Therefore, notice was not required in February 2020.
63. The applicants have failed to prove on the balance of probabilities that their fixed term contracts of employment which ended on 31 December 2019 was extended. Therefore, they were not dismissed but their contracts came to an end.
64. I therefore make the following award.
AWARD
65. The applicants, Tshegofatso Makobo and Mosetsanagape Florence Moroka were not dismissed, their fixed term contracts of employment came to an end.
Signed and dated at Pretoria on this the 5th day of August 2021.
MG Rabyanyana
ELRC Panelist
In the matter between:-
SADTU obo TSHEGOFATSO MAKOBO
AND 1 OTHER APPLICANT
and
DEPARTMENT OF EDUCATION- NW RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 05 July 2021
DATE OF AWARD: 05 August 2021
SUMMARY: Section 186 (2) (a) unfair dismissal
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 19 October 2020 and 05 July 2021.
2. The Applicants, Tshegofatso Makobo and Mosetsanagape Florence Moroka were represented by Mr B.T Tshilo, an official of SADTU. The respondent was represented by Mr K.K Keetile from its offices. The parties submitted the closing arguments by the 13 July 2021. The applicant’s bundle is marked A and the respondent B. The proceedings were mechanically recorded.
BACKGROUND TO THE ISSUE
3. The Applicant had referred a dispute about unfair dismissal to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether the Applicants were dismissed. In doing so, I must determine if their fixed term contracts of employment that ended on 31 December 2019 were extended. If I find that the applicants were dismissed, I must determine if it was procedurally fair and appropriate relief.
AGREED FACTS
5. The parties agreed on the following :-
5.1 Ms Makobo and Ms Moroka were employed on fixed term contracts starting from 02 April 2019 and 01 January 2019 respectively until 31 December 2019.They were employed at Modisakoma Intermediate School.
5.2 The applicants are not professionally qualified educators.
5.3 In December 2019, the Circuit Manager responsible for the Cluster had a meeting with the principals and contract educators from different school to address issues relating to appointments and re-appointments of temporary educators for the academic year 2020 using the Departmental Circular no. 42 of 2018.
5.4 The Applicants reported back for duty in January 2020 and rendered services until :
5.4.1 Ms Makobo, 31 January 2020 earning a monthly salary of R14 749.25 (R176 991.00 per annum);
5.4.2 Ms Moroka, 10 February 2020 earning a monthly salary of R18 088.50 (R219 062.00 per annum).
SURVEY OF EVIDENCE
6. Tshegofatso Makobo testified that she worked at Modisakoma Intermediate School on contract until 31 January 2020. She holds the National Diploma in Early Childhood Development and that she was registered for a B.Ed degree. On 09 December 2019, she attended a meeting convened by the Circuit Manager.
7. In meeting temporary educators who were professionally unqualified but still studying were encouraged to finish their qualifications. They were informed that their fixed-term contracts would be extended to end of 2020 academic year.
8. The principal gave her and other unqualified educators at the school assumption of duty forms to fill for the 2020 academic year. She returned to work in January 2020. She was not turned back by the school but was allocated a class as usual. She was paid January 2020 salary as usual.
9. She attended a meeting with the Principal and her colleague on 14 February 2020, where to her surprise, she was told that her services were terminated. According to her, her contract was extended to the end of 2020 academic year.
10. During cross-examination she said she was unfairly dismissed and seeks 12 months compensation. In December 2019, she and other temporary educators had filled in Assumption of Duty forms for the 2020 academic year. The forms disappeared and they do not know what happened to them. The circuit manager promised them that he would extend their contracts.
11. The Circuit Manager encouraged the professionally unqualified educators to study and finish their qualifications and he told them that he was signing for the assumption of duty forms, but they must give him proof that they have registered in January 2020. There was no instruction that they should or should not return in January.
12. Mosetsanagape Florence Moroka testified that she worked at Modisakoma Intermediate School until 10 February 2020. She holds the qualification National Diploma in Early Childhood Development and she was registered for a BEd degree.
13. On 09 December 2019 she attended a meeting convened by the Circuit Manager. Temporary educators who were professionally unqualified but still studying were encouraged to finish their qualifications. They were informed that their fixed-term contracts would be extended to the 2020 academic year.
14. The principal gave her and other unqualified educators at the school assumption of duty forms to fill for the 2020 academic year. She returned to work in January 2020. She was not turned back by the school but was allocated her class as usual. She was paid January 2020 salary as usual.
15. She attended a meeting with the principal and her colleague on 14 February 2020, she was told of her termination of service. As far as she was concerned here contract was extended to 2020 academic year.
16. During cross-examination she said that she was unfairly dismissed and seeks 12 months compensation. In December 2019, she and other temporary educators had filled in assumption of duty forms for the 2020 academic year. The forms disappeared and they do not know what happened to them.
17. The Circuit Manager encouraged the professionally unqualified educators to study and finish with their qualifications. He told them that he was signing for the assumption of duty forms but in January 2020, they must give him proof that they have registered.
18. Molebogeng Petrus Motshwaedi testified for the respondent that he is the Principal of Modisakoma Intermediary School. He held that position since 1999. Educators are notified verbally of their period of contracts. Sometimes, letters are issued.
19. He was part of the meeting of 09 December 2019. The Circuit Manager convened the meeting to discuss Circular 42 in preparation for recruitment of the 2020 academic year. Clause 13.3 of the circular prohibits principals from recruiting professionally unqualified educators.
20. The department allows for the recruitment of professionally unqualified educators when there is a challenge of getting suitable qualified educators. Their school struggles to attract suitably qualified educators because it is in a remote rural area.
21. The circuit manager informed the applicants that if they did not finish their studies, they would not be appointed in 2020. They did not fill in assumption of duty forms in that meeting. He denied that the applicants were promised that if they were registered their contracts would be renewed.
22. During cross-examination, he conceded that the circular was meant to regulate recruitment and appointment in the 2019 academic year. However, it remained applicable to the 2020 academic year because there was no recruitment circular that replaced it. The manager informed them that professionally unqualified educators would not be re- appointed the following year.
23. The Applicants returned to school in January 2020, to do hand-over of duties to their colleagues and as volunteers. He did not inform the department about their volunteering because he was still looking for qualified replacements. They were paid a salary at the end of January 2020 like all other contract educators were paid for January even those who had left the school. Volunteers are not paid a salary. He did not have powers to employ.
24. The service records of Ms Makobo and Ms Moroka show that they were in the service of the department until 30 January 2020 and 10 February 2020 respectively. Their service record was HR matter. The department had captured the service record incorrectly.
25. There was no urgency to extend the applicants’ contracts programmatically in terms of clauses 4 and 5 of Circular 42 because Fundza Luschaka candidates were to be recruited in their place.
26. There were vacancies for Fundza Luschaka candidates in 2020.He informed the Applicants of their termination, on the instruction from the Circuit Manager.
27. Oduetsi Patric Metsi testified that he is the Circuit Manager for Naledi Circuit and has held this position since 2018. He convened the meeting of 09 December 2019. There were about 9 unqualified educators from the applicants’ school. The purpose of the meeting was to discuss Circular 42.
28. In the meeting he informed unqualified educators that they would not be appointed the following year. The reason was that the department had sent people to universities to qualify as educators (Fundza Lushaka bursars). On completion, the department has a contractual obligation to employ them but was unable do so because unqualified people occupied the posts.
29. The unqualified educators were given enough time to complete their qualifications and would not be given more time in the 2020 academic year. He referred to clause 13.3 of Circular 42.
30. During cross-examination he testified that he does not employ educators. Circular 42 regulates recruitment for the 2019 academic year. It was still applicable for 2020. However, it would have been more appropriate to use a circular that specifically regulates recruitment for the 2020 academic year.
31. The Applicants were appointed for 2019 despite being unqualified. Sometimes, schools struggle to attract qualified educators. In such cases, the department employs unqualified educators who are still studying. Fundza Lushaka bursars are sometimes appointed prior to finalising their qualification.
32. The appointment of unqualified educators with a partial degree or diploma qualification was common. When he found out that the Applicants were on duty at the school, he was very upset with the school principal. He instructed the principal to tell them to leave because they were not supposed to be at work. Further, their presence at work could lead to possible litigation against the department.
33. The Applicants were in the service of the department in January 2020.Their January 2020 salaries were paid erroneously but because they had services rendered they were entitled for payment. He was not made aware that the applicants were volunteering. All contract workers received a salary in January 2020, including the applicants. This was an error from the department.
CLOSING ARGUMENTS
34. The applicant argued that both the Principal and the Circuit Manager made a verbal promise to them that their fixed-term contracts would be extended. Both the Principal and the Circuit Manager denied this. Their evidence must be approached with caution because it is full of contradictions. Clause 4 of Circular 42, provides that ‘the contracts of temporary educators who are in schools that retain or gain posts and are not affected by the placement of Fundza Lushaka will be extended.
35. Clause 5 of the circular provides that ‘a programmatic extension of contracts will be done through a System Control Change (SCC). In addition, Circular 42 provides that these measures must be implemented before the closure of school for that academic year as a matter of extreme urgency (clause 6).
36. The Principal and the Circuit Manager testified that the school generally struggled to attract suitably qualified educators, including Fundza Lushaka bursars, because of its rural and remote location. Thus, the applicants’ contracts qualified for this programmatic extension and were indeed extended for the 2020 academic year.
37. In Southgate v Blue IQ Investment Holdings the Labour Court (J 1788/09) [2012] ZALCJHB 39 the court held that regarding the formation of an employment contract: “The contract of employment requires no special formalities for its formation….” These terms may be agreed upon express, impliedly or tacitly”. The Labour court held further that the existence of a contract of employment may even be inferred from the parties’ conduct. It is also not necessary that the parties need to agree on every detail of the contract as is suggested by the respondent.
38. The Responded, had expressly extended the applicants’ contract by virtue of clauses 4-6 of Circular 42. Secondly, the existence of a contract does depend on a written document only. The lack of a written contract for the 2020 academic year does not change the fact that their contract existed.
39. The applicants’ unchallenged evidence is that the respondent did not give them notice in terms section 37 (1) of BCEA, when they terminated their service. The respondent relies on clause 13.3 of Circular 42. Therefore, it was argued that the applicants were unfairly dismissed.
40. The respondent‘s representative argued that respondent did not create an expectation of renewal of fixed term contracts of the Applicants. Both the Principal and the Circuit Manager testified that no assumption of duty forms were signed in the meeting held on 09 December 2019. Other unqualified educators were present but were not called to corroborate the applicants’ testimony that there was an undertaking to renew their contracts. It is also strange that out of nine unqualified educators, only the applicants were promised an extension.
41. The applicants failed to prove the existence of the signed assumption of duty forms. The discussion in the meeting was about the applicants’ failure to acquire a professional qualification and not an undertaking to extend their contracts. Circular 42 of 2018 was discussed in the meeting and it was valid. No other circular was issued to nullify it. Clause 13.3 of the circular provides that no unqualified educator should be recruited.
42. The rendering of service and remuneration of the applicants did not amount to extension of contract of employment for 2020.The applicants relied on Clause 4 and 5 of the Circular. The Principal and the Circuit Manager stated that the school was affected by placement of Funza Lushaka, who are to be considered before recruiting others. According to Clause 5, programmatically extension applies to educators whose contracts were extended based on the unavailability of Funza Lushaka. These two clauses do not apply to the applicants because their contracts were not renewed.
43. Extension of contracts are only valid once the school has completed Annexure D and assumption of duty forms have been submitted on the first school day for the educators. The applicants did not meet these requirements. The dates on the service records reflect the last time the applicants received their salaries. This for audit purposes where the termination date cannot differ with the payment date.
ANALYSIS OF EVIDENCE AND ARGUMENTS
44. It is the respondent‘s contention that the applicants were not dismissed but that their fixed term of contracts came to an end. The applicant bears the onus to establish the existence of dismissal in terms of Section 192 (1) of the Labour Relations Act 66 of 1995 (“LRA”). The onus will shift to the respondent to prove fairness of dismissal once dismissal is established.
45. It is common cause that the applicants’ fixed term contracts of employment came to an end on 31 December 2019. The applicants’ contention is that their contracts were extended to the end of 2020.The applicants are contradicting themselves in that, it is not probable that their contracts were extended after they had ended (31 December 2019). The contract that had ended cannot be revived by an extension.
46. The extension according to the applicants is premised on the allegation that the circuit manager made them sign the assumption of duty forms in a meeting of 09 December 2019. The applicants failed to support their assertion as they did not produce the signed forms. They say they do not know what happened to the forms.
47. It is trite law of evidence that one who alleges must prove. They failed to prove the existence of the forms. It is common cause that there were about 9 unqualified educators who attended the meeting. They failed to call some of these educators to corroborate their contention about signing the forms. Furthermore, there was no explanation why the other 7 unqualified educator did not challenge the ending of their contract as dismissal.
48. I do not accept the applicants’ contention that circular 42 was not applicable. They are contradicting themselves. When it suits them they rely on its provisions, when it does not suit them it was not valid because it relates to 2019 appointments. It is common cause that there was no circular issued that nullified it. In the premise I accept that circular 42 was valid and applicable.
49. Both the principal and the circuit manager denied that the applicants signed the assumption of duty forms. Their contention is that the meeting was about the discussion of Circular 42 and that the applicants and others were informed that their contracts would not be extended, if they did not provide evidence that they have completed their studies qualifying them as educators.
50. The applicants’ argument that in terms of Southgate case it is not a requirement for an employment contract to be formal and that these terms may be agreed upon expressly, impliedly or tacitly is misplaced. In terms of clause 13.1 of the circular, it is a requirement that Annexure D should be completed and submitted to the district director for approval and that signing of the assumption of duty forms must submitted to HR division on the first day of reopening. There is no evidence that this requirement was met.
51. It is further not in dispute that the principal did not have authority to employ educators but to recruit. Therefore, reliance on the actions of the principal for having allowed the applicants to continue rendering services beyond 31 December 2019 is a fallacy. They failed to prove that they were authorised by the respondent to render services beyond 31 December 2019. Thus, it becomes moot to determine if they were volunteering, handing over or waiting for qualified educators to be sourced. The applicants were not authorised to be at school in January 2020.
52. I accept the Circuit manager’s explanation that the principal’s actions were irregular. However, this is an internal affair between the respondent and the principal. The unchallenged fact remains that he lacked authority to employ and therefore, to extend contracts of employment.
53. Another ground the applicants rely on, is payment of their salary for January 2020. It is an unchallenged evidence by the circuit manager that their January salary payment was due to an administrative error by the HR which applied to all other educators that had left the department. This error is corroborated by the fact that once he became aware that the applicants were still at school when he visited the school in February, he immediately instructed the principal to release them.
54. Similarly, payment of their January 2020 salary, fails to prove that the applicants’ contracts were extend tacitly or by conduct. In Imatu and others v City of Johannesburg Metropolitan Municipality and Others [2014] 6 BLLR 545 (LAC) the court held that a bona fide error by the employer would not give employee reasonable expectation of extension. The applicants do not claim reasonable expectation of extension but that payment of salary proves that their contracts were extended. Thus, I am not persuaded that the applicants were paid because their contracts were extended but it was on account of a bona fide error.
55. It is not in dispute that the applicants’ service records provide thus, Ms Makobo’s service ended on 31 January 2020 and Ms Moroka on 10 February 2020. I am persuaded that this is a true reflection of the period the applicants had rendered services to the respondent and were paid for this period. This does not legitimise or create extension of the contract. The circuit manager explained plausibly that this was for audit purposes, their rendering of services corresponds with their remuneration.
56. The applicants are contradicting themselves, at some point they were promised extension of the contracts at another point their contracts were extended on 09 December 2021. I agree with the applicants that there was no promise to extend their contracts as it is clear from their dispute that it is not about reasonable expectation to extend. This contradiction exposes that they are fishing.
57. It is common cause that circular 42 was discussed in the meeting of 09 December 2019. Reliance on the provisions of the circular by both parties, proves the reason why the applicants’ fixed term of contract was extended in the case of the applicants and why it could not have been extended in the case of the respondent.
58. The Applicants relied on Clause 4 and 5 of the Circular. The Principal and the Circuit Manager stated that the school was affected by placement of Funza Lushaka, who are to be considered before recruiting others.
59. Clause 4 provides that ‘the contracts of temporary educators who are in schools that retain or gain posts and are not affected by the placement of Fundza Lushaka will be extended.’ This provision means that temporary educators whose contracts are not affected by the placement of Fundza Lushaka, their contracts will be extended. That is, those affected by placement of Fundza Lushaka, their contracts will not be extended. Holding a different view would be senseless, as this implies simultaneous placement of Fundza Lushaka and contract extension of a temporary educator. Which post would a temporary educator occupy if all the posts are occupied by Fundza Lushaka? Does a temporary educator expect the respondent to create excessive posts solely to accommodate her? According to the respondent’s unchallenged testimony the applicants were affected by placement of Fundza Lushaka as there was intake in 2020. Therefore, no extension.
60. According to Clause 5, programmatical extension applies to educators whose contracts were extended based on the unavailability of Funza Lushaka. The provision does not apply to the applicants because Funza Lushaka were available in 2020. Clause 4 and 5 do not apply to the Applicants.
61. Clause 13.3 of the circular provides that ‘Principal as recruiting officer must not recruit professionally unqualified individuals and must ensure that the SACE certificate corresponds with the academic qualifications’. The respondent‘s explanation that .no unqualified educator should be recruited unless Funza Lushaka are not available is plausible.
62. The provisions of section 37 of BCEA is not applicable to the applicants. The applicants were employed on a fixed term of contract and were aware of the date their contracts were coming to an end. They did not require notice as contemplated in section 37 of BCEA. The applicants should not have been at school in 2020.Therefore, notice was not required in February 2020.
63. The applicants have failed to prove on the balance of probabilities that their fixed term contracts of employment which ended on 31 December 2019 was extended. Therefore, they were not dismissed but their contracts came to an end.
64. I therefore make the following award.
AWARD
65. The applicants, Tshegofatso Makobo and Mosetsanagape Florence Moroka were not dismissed, their fixed term contracts of employment came to an end.
Signed and dated at Pretoria on this the 5th day of August 2021.
MG Rabyanyana
ELRC Panelist
ELRC 302 -20 /21 NW
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