ELRC99-21/22 LP
Text
Award Date:
05 August 2021
Text
IN THE ELRC ARBITRATION
BETWEEN:
IRENE MAHLATSE MAMABOLO Employee/Applicant
and
DEPARTMENT OF EDUCATION – LIMPOPO Employer/Respondent
ARBITRATION AWARD
Case Number:
Last date of arbitration: 14 July 2021
Receipt of closing arguments: N/A
Date of award: 05 August 2021
MATHEWS RAMOTSHELA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
CASE NO: ELRC99-21/22 LP
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held online through Zoom media on 14 July 2021. The employee was in attendance and represented by Advocate Mathiba Mathews Mababolo. Tukudi Simon Senong, the deputy principal of the employer, presented its case. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am called upon to determine whether the employer’s failure to renew the employee’s fixed term contract constituted a dismissal. Should I make any finding that there was a dismissal, I have to make a further determination whether same was unfair.
BACKGROUND TO THE ISSUE
Background
[3] The employee was previously employed by the employer on a fixed term contract that expired on 10 March 2021. She was employed in the position of lecturer at the college. When the contract expired, the employer neither renewed it nor appointed her into a permanent post. It is the employee’s contention that the employer’s failure to renew the contract constituted an unfair dismissal as she had a reasonable expectation for it to be renewed.
SURVEY OF EVIDENCE AND ARGUMENT
EVIDENCE FOR THE EMPLOYEE
IRENE MAHLATSE MAMABOLO testified as follows:
[4] With effect from 10 March 2020 to 10 March 2021 she was employed on a fixed term contract by the employer as a lecturer in a course on safety and security in society, which was a new programme. The programme is still continuing as she was the first one to be employed for the course. It is a three year programme. The students fared very well and she had rapport with them. More than 85% of them passed and there were some distinctions. Given the good results, the employer should have given her an opportunity to continue with the programme into the year 2021. She thinks that it would have been in the best interest of the students to be taught by the same lecturer as in their first year.
[5] The course is still continuing with one permanent lecturer and the other one on fixed term contract.
[6] In terms of her fixed term contract, she was supposed to have finished on 10 March 2021, but instead was allowed to work until 15 April 2021. The termination letter, sent by the campus manager, Dikeledi Molamo, was done by way of an email on 15 April 2021. She noticed that the date of termination was backdated to 31 March 2021. She is of the view that her termination was not effected in the correct manner.
Under cross-examination she further testified as follows:
[7] The programme is comprised of seven subjects, of which she taught two. Pursuant to the expiry of her contract, two lecturers, namely Messrs. Phahlane and Maluleke took over her subjects. At the time she entered into a fixed term contract with the college, both Phahlane and Maluleke were already employed there.
[8] Given that the programme she was offering was supposed to continue for the following year, she did not think that her contract would be automatically extended.
[9] She says that her work was taken away because the employer allowed her to continue with her work even though her contract had expired and also as her performance was very well. The programme is also still continuing.
[10] She concedes that the programme is continuing with students being taught by lecturers who did not come in after she left.
EVIDENCE FOR THE EMPLOYER
[11] Only one witness testified for the employer.
Tukudi Simon Senong (Tukudi) testified as follows:
[12] He is employed as a principal at the college. The programme was introduced in 2020 and the employee was assigned to teach vocational subjects. There are four vocational subjects, of which the employee was allocated two. The employee performed well in her subjects and there were no complaints about her work. Had things gone their way, the college would have retained the employee. Unfortunately, there was a change in the enrolment for 2021 because of the directive from the Department of Higher Education (“the Department”). The Department gave the college a lower enrolment, which resulted in a drop in the workload for lecturers.
[13] At the beginning of 2021, when allocation of work was done, it was realized that some permanent lecturers had less work or no work at all. This had an adverse effect on the work of fixed term lecturers, inclusive of the employee. Because the employee’s contract was overlapping into 2021, she was allocated work for the remainder of her contract, being January, February and March 2021.
[14] When her contract came to an end, her work was distributed to other lecturers as they were under-allocated. The college could not have retained the employee beyond her contract because she would not have work to do. This is the only reason and not any other.
Under cross-examination he further testified as follows:
[15] In his explanation of how a lower enrolment could have an adverse effect on the relationship between the parties, the witness testified that the number of students enrolled determines the number of groups that students will make according to the subjects in the programmes. Accordingly, fewer groups in a programme means that there would be lesser work for lecturers in that programme. Fewer groups mean that there would be a lower number of periods per day, which translates into lecturers not being utilized to the optimum. The number of subjects does not get reduced, but instead the number of groups get reduced, which translates into fewer number of students.
[16] He denies that the termination letter was backdated. The date of termination was supposed to be 10 March 2021 but because the employer wanted to afford the employee an opportunity to earn a full month salary, she was allowed to work beyond the stipulated end date.
Employee’s closing arguments
[17] The continuation of the contract beyond the expiry date created the expectation of renewal. The fact that she did not know about the lower enrolment led her to assume that there would be a renewal as well as the fact that she performed well in her subjects. Furthermore, the programme was new. Where a fixed term contract is allowed to go beyond its fixed period, there is a rebuttable presumption for renewal on the same terms and conditions as the original contract.
Employer’s closing arguments
[18] The parties had a fixed term contract with a clear expiry date. Should the employee be reinstated, there would be no work that may be allocated for her.
ANALYSIS OF EVIDENCE AND ARGUMENT
[19] In terms of section 192(1) of the Labour Relations Act 66 of 1995, as amended (“the Act), the onus rests upon the employee to establish the existence of a dismissal. For the employee to succeed in his/her claim, he/she must establish that he/she was indeed dismissed.
[20] In this case, we need to bear in mind that the type of dismissal alleged by the employee is not the conventional one where the employer terminates a contract of employment with or without notice. We are here dealing with the provisions of section 186(1)(b) of the LRA. For the sake of our convenience, let’s quote the relevant parts, which read as follows:
“…an employee reasonably expected the employer 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…”
[21] It is common cause that when the contracts expired, the employer neither renewed same nor appointed the employee on a permanent basis.
[22] The only crucial question to be determined is whether there existed a reasonable expectation for renewal. I must not be hesitant in revealing my findings, which after careful considerations of all facts placed before me, as it shall be more apparent below, is that the employee has failed to adduce sufficient evidence to persuade me that there existed any such expectation.
[23] As established in the Labour Appeal Court judgment of Forster v Steward Scott Inc (1997) 18 IJL 367, the starting point is the fixed term contract itself. It is common cause that the employee’s contract does not mention anything about renewing same when it comes to an end. It is silent on this issue. Accordingly, the employee cannot rely on the terms of the contract.
[24] When afforded an opportunity to testify, the employee gave detailed evidence in an endeavor to substantiate her contention that she haboured a reasonable expectation for renewal. However, later when being cross-examined, it transpired that by her own account, the reasons that she earlier testified as the basis upon which her expectation is premised are in fact unfounded. The cross-examination revealed that the evidence that the employee tendered was in fact out of variance with the true state of affairs.
[25] Does the fact that the employee was allowed to work beyond the agreed expiry date indicate that an expectation was created? I do not agree. The employee has alluded to authorities that are of the view that in such instances there is a rebuttable presumption that the contract has been renewed on similar terms and conditions. That may be the correct legal position, but when one considers the unchallenged testimony of Tukudi, the only witness for the employer, the inevitable conclusion is that the employer has succeeded to rebut the presumption. Tukudi testified that when the fixed term contract came to an end on 10 March 2021, it was thought prudent to allow her to continue working so as to afford her an opportunity to earn a full month salary. Accordingly, there could not have been any intention to renew the contract, especially when one also takes into account the unchallenged testimony that the employer’s enrolment for the academic year was lower as per directive from the Department. The very peculiar facts of this case do not point towards a presumption of renewal merely because the employee was allowed to work beyond the expiry date that was fixed.
[26] It is the employee’s further contention that because she was not aware and/or apprised about the fact that the Department had authorized a lower enrolment for the academic year of 2021, she was entitled to assume that her contract would be renewed. This submission does not hold water. The employee was unable to present evidence of any duty on the employer to engage her and/or apprise her on matters regarding enrolment. This is so when one considers that there is no evidence that at any time the employer expressly or by way of conduct promised the employee that her contract would be renewed. Matters of enrolment are between the employer and the Department and one wonders why the employee expected to be involved therein.
[27] It is her further submission that because the programme was still continuing and she performed well in her subjects, she haboured expectations for renewal. In this regard, I must be quick to point out that she may have expected the renewal, the only hurdle for her case being that any such expectation was of a subjective nature. As already correctly alluded to by the employee during her closing arguments, it is now trite that the test for a reasonable expectation is objective. In the absence of any conduct by the employer that points towards renewal, it was highly subjective for the employee to expect to be retained beyond her expiry date merely because the programme was still continuing and her performance was above par. The employer’s witness was ready to point out that there were no issues regarding the employee’s performance and it is not because of any non-performance that she could not be employed beyond her fixed term. There is no iota of evidence that hints that based on her good performance, the employer did anything to give the impression that the contract would be renewed.
[28] By her own account, the employee was not replaced by any lecturer that could have been hired after her departure. On the contrary, lecturers that took over her subjects were already in the employ of the college and more telling, at least one of them is in a permanent relationship with their employer. At the time the employee commenced working for the college, these two lecturers were already employed there. As per unchallenged evidence of Takudi, which I accept as probably the truth, one of the knock-off effects of the lower student intake precipitated by the directive from the Department was the spectre of partial or full redundancy on the part of its full time lectures. In order to avert this obviously untenable situation, the employer deemed it prudent not to renew fixed term contracts of lecturers. In this regard, we need to highlight that Takudi’s testimony reveals that it was not only the employee that was singled out for non-renewal, but also other lecturers. In the case of the employee, this move translated into two lecturers taking over the only two subjects that the employee was teaching. In her testimony and arguments, the employee’s specious presentation is that the new programme hinged upon her continued teaching into the second and possibly third academic years, mainly because she was the first one to be hired for same. However, she has conceded that the course was comprised of seven subjects, of which she taught only two. It thus beggars belief that she expected the survival and/or continuance of the programme to revolve around her presence on campus while she was fully aware that she was teaching approximately only a third of the entire programme. It is thus indeed true that her expectation, if any, was of a subjective nature.
[29] While the employee has failed to present sufficient evidence to underpin her allegations of expectation for renewal, the employer has instead presented a plausible basis upon which one would not have expected it to renew the contract. When asked to explain how the lower enrolment precipitated by a directive from the Department would have an adverse effect on employing the employee beyond her fixed term, Tukudi was more than generous in his explanation. He clearly indicated how the directive to register fewer students had a knock-off effect. It adversely affected the number of groups, the number of periods and the number of students and ultimately a reshuffling of lecturers to teach subjects for the programme.
[30] I must emphasize that the employee’s expectation, if any, was subjective. It has become trite that the correct barometer for this requirement is objective. The employee has failed to establish any case that shows that the employer, through the conduct and/or verbal undertakings of any of its dully authorized officials, did anything to create the alleged expectation.
[31] In conclusion, I find that the employee, who carries the burden of proof, failed to prove factors that can lead a decision maker in my position to concur with her assertion that there was in existence a reasonable expectation for the employer to renew her fixed term contract when same expired. The employee was thus never dismissed. As per the common law on contracts, the agreed period came to an end.
AWARD
[32] The employer did not, in the manner envisaged by the provisions of section 186(1) of the Act, dismiss the employee.
[33] I accordingly hereby dismiss the employee’s claim.
CCMA COMMISIONER: MATHEWS M RAMOTSHELA
Signed
BETWEEN:
IRENE MAHLATSE MAMABOLO Employee/Applicant
and
DEPARTMENT OF EDUCATION – LIMPOPO Employer/Respondent
ARBITRATION AWARD
Case Number:
Last date of arbitration: 14 July 2021
Receipt of closing arguments: N/A
Date of award: 05 August 2021
MATHEWS RAMOTSHELA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.org.za SelloM@elrc.org.za MatloseM@elrc.org.za
Website: www.elrc.org.za
CASE NO: ELRC99-21/22 LP
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held online through Zoom media on 14 July 2021. The employee was in attendance and represented by Advocate Mathiba Mathews Mababolo. Tukudi Simon Senong, the deputy principal of the employer, presented its case. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am called upon to determine whether the employer’s failure to renew the employee’s fixed term contract constituted a dismissal. Should I make any finding that there was a dismissal, I have to make a further determination whether same was unfair.
BACKGROUND TO THE ISSUE
Background
[3] The employee was previously employed by the employer on a fixed term contract that expired on 10 March 2021. She was employed in the position of lecturer at the college. When the contract expired, the employer neither renewed it nor appointed her into a permanent post. It is the employee’s contention that the employer’s failure to renew the contract constituted an unfair dismissal as she had a reasonable expectation for it to be renewed.
SURVEY OF EVIDENCE AND ARGUMENT
EVIDENCE FOR THE EMPLOYEE
IRENE MAHLATSE MAMABOLO testified as follows:
[4] With effect from 10 March 2020 to 10 March 2021 she was employed on a fixed term contract by the employer as a lecturer in a course on safety and security in society, which was a new programme. The programme is still continuing as she was the first one to be employed for the course. It is a three year programme. The students fared very well and she had rapport with them. More than 85% of them passed and there were some distinctions. Given the good results, the employer should have given her an opportunity to continue with the programme into the year 2021. She thinks that it would have been in the best interest of the students to be taught by the same lecturer as in their first year.
[5] The course is still continuing with one permanent lecturer and the other one on fixed term contract.
[6] In terms of her fixed term contract, she was supposed to have finished on 10 March 2021, but instead was allowed to work until 15 April 2021. The termination letter, sent by the campus manager, Dikeledi Molamo, was done by way of an email on 15 April 2021. She noticed that the date of termination was backdated to 31 March 2021. She is of the view that her termination was not effected in the correct manner.
Under cross-examination she further testified as follows:
[7] The programme is comprised of seven subjects, of which she taught two. Pursuant to the expiry of her contract, two lecturers, namely Messrs. Phahlane and Maluleke took over her subjects. At the time she entered into a fixed term contract with the college, both Phahlane and Maluleke were already employed there.
[8] Given that the programme she was offering was supposed to continue for the following year, she did not think that her contract would be automatically extended.
[9] She says that her work was taken away because the employer allowed her to continue with her work even though her contract had expired and also as her performance was very well. The programme is also still continuing.
[10] She concedes that the programme is continuing with students being taught by lecturers who did not come in after she left.
EVIDENCE FOR THE EMPLOYER
[11] Only one witness testified for the employer.
Tukudi Simon Senong (Tukudi) testified as follows:
[12] He is employed as a principal at the college. The programme was introduced in 2020 and the employee was assigned to teach vocational subjects. There are four vocational subjects, of which the employee was allocated two. The employee performed well in her subjects and there were no complaints about her work. Had things gone their way, the college would have retained the employee. Unfortunately, there was a change in the enrolment for 2021 because of the directive from the Department of Higher Education (“the Department”). The Department gave the college a lower enrolment, which resulted in a drop in the workload for lecturers.
[13] At the beginning of 2021, when allocation of work was done, it was realized that some permanent lecturers had less work or no work at all. This had an adverse effect on the work of fixed term lecturers, inclusive of the employee. Because the employee’s contract was overlapping into 2021, she was allocated work for the remainder of her contract, being January, February and March 2021.
[14] When her contract came to an end, her work was distributed to other lecturers as they were under-allocated. The college could not have retained the employee beyond her contract because she would not have work to do. This is the only reason and not any other.
Under cross-examination he further testified as follows:
[15] In his explanation of how a lower enrolment could have an adverse effect on the relationship between the parties, the witness testified that the number of students enrolled determines the number of groups that students will make according to the subjects in the programmes. Accordingly, fewer groups in a programme means that there would be lesser work for lecturers in that programme. Fewer groups mean that there would be a lower number of periods per day, which translates into lecturers not being utilized to the optimum. The number of subjects does not get reduced, but instead the number of groups get reduced, which translates into fewer number of students.
[16] He denies that the termination letter was backdated. The date of termination was supposed to be 10 March 2021 but because the employer wanted to afford the employee an opportunity to earn a full month salary, she was allowed to work beyond the stipulated end date.
Employee’s closing arguments
[17] The continuation of the contract beyond the expiry date created the expectation of renewal. The fact that she did not know about the lower enrolment led her to assume that there would be a renewal as well as the fact that she performed well in her subjects. Furthermore, the programme was new. Where a fixed term contract is allowed to go beyond its fixed period, there is a rebuttable presumption for renewal on the same terms and conditions as the original contract.
Employer’s closing arguments
[18] The parties had a fixed term contract with a clear expiry date. Should the employee be reinstated, there would be no work that may be allocated for her.
ANALYSIS OF EVIDENCE AND ARGUMENT
[19] In terms of section 192(1) of the Labour Relations Act 66 of 1995, as amended (“the Act), the onus rests upon the employee to establish the existence of a dismissal. For the employee to succeed in his/her claim, he/she must establish that he/she was indeed dismissed.
[20] In this case, we need to bear in mind that the type of dismissal alleged by the employee is not the conventional one where the employer terminates a contract of employment with or without notice. We are here dealing with the provisions of section 186(1)(b) of the LRA. For the sake of our convenience, let’s quote the relevant parts, which read as follows:
“…an employee reasonably expected the employer 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…”
[21] It is common cause that when the contracts expired, the employer neither renewed same nor appointed the employee on a permanent basis.
[22] The only crucial question to be determined is whether there existed a reasonable expectation for renewal. I must not be hesitant in revealing my findings, which after careful considerations of all facts placed before me, as it shall be more apparent below, is that the employee has failed to adduce sufficient evidence to persuade me that there existed any such expectation.
[23] As established in the Labour Appeal Court judgment of Forster v Steward Scott Inc (1997) 18 IJL 367, the starting point is the fixed term contract itself. It is common cause that the employee’s contract does not mention anything about renewing same when it comes to an end. It is silent on this issue. Accordingly, the employee cannot rely on the terms of the contract.
[24] When afforded an opportunity to testify, the employee gave detailed evidence in an endeavor to substantiate her contention that she haboured a reasonable expectation for renewal. However, later when being cross-examined, it transpired that by her own account, the reasons that she earlier testified as the basis upon which her expectation is premised are in fact unfounded. The cross-examination revealed that the evidence that the employee tendered was in fact out of variance with the true state of affairs.
[25] Does the fact that the employee was allowed to work beyond the agreed expiry date indicate that an expectation was created? I do not agree. The employee has alluded to authorities that are of the view that in such instances there is a rebuttable presumption that the contract has been renewed on similar terms and conditions. That may be the correct legal position, but when one considers the unchallenged testimony of Tukudi, the only witness for the employer, the inevitable conclusion is that the employer has succeeded to rebut the presumption. Tukudi testified that when the fixed term contract came to an end on 10 March 2021, it was thought prudent to allow her to continue working so as to afford her an opportunity to earn a full month salary. Accordingly, there could not have been any intention to renew the contract, especially when one also takes into account the unchallenged testimony that the employer’s enrolment for the academic year was lower as per directive from the Department. The very peculiar facts of this case do not point towards a presumption of renewal merely because the employee was allowed to work beyond the expiry date that was fixed.
[26] It is the employee’s further contention that because she was not aware and/or apprised about the fact that the Department had authorized a lower enrolment for the academic year of 2021, she was entitled to assume that her contract would be renewed. This submission does not hold water. The employee was unable to present evidence of any duty on the employer to engage her and/or apprise her on matters regarding enrolment. This is so when one considers that there is no evidence that at any time the employer expressly or by way of conduct promised the employee that her contract would be renewed. Matters of enrolment are between the employer and the Department and one wonders why the employee expected to be involved therein.
[27] It is her further submission that because the programme was still continuing and she performed well in her subjects, she haboured expectations for renewal. In this regard, I must be quick to point out that she may have expected the renewal, the only hurdle for her case being that any such expectation was of a subjective nature. As already correctly alluded to by the employee during her closing arguments, it is now trite that the test for a reasonable expectation is objective. In the absence of any conduct by the employer that points towards renewal, it was highly subjective for the employee to expect to be retained beyond her expiry date merely because the programme was still continuing and her performance was above par. The employer’s witness was ready to point out that there were no issues regarding the employee’s performance and it is not because of any non-performance that she could not be employed beyond her fixed term. There is no iota of evidence that hints that based on her good performance, the employer did anything to give the impression that the contract would be renewed.
[28] By her own account, the employee was not replaced by any lecturer that could have been hired after her departure. On the contrary, lecturers that took over her subjects were already in the employ of the college and more telling, at least one of them is in a permanent relationship with their employer. At the time the employee commenced working for the college, these two lecturers were already employed there. As per unchallenged evidence of Takudi, which I accept as probably the truth, one of the knock-off effects of the lower student intake precipitated by the directive from the Department was the spectre of partial or full redundancy on the part of its full time lectures. In order to avert this obviously untenable situation, the employer deemed it prudent not to renew fixed term contracts of lecturers. In this regard, we need to highlight that Takudi’s testimony reveals that it was not only the employee that was singled out for non-renewal, but also other lecturers. In the case of the employee, this move translated into two lecturers taking over the only two subjects that the employee was teaching. In her testimony and arguments, the employee’s specious presentation is that the new programme hinged upon her continued teaching into the second and possibly third academic years, mainly because she was the first one to be hired for same. However, she has conceded that the course was comprised of seven subjects, of which she taught only two. It thus beggars belief that she expected the survival and/or continuance of the programme to revolve around her presence on campus while she was fully aware that she was teaching approximately only a third of the entire programme. It is thus indeed true that her expectation, if any, was of a subjective nature.
[29] While the employee has failed to present sufficient evidence to underpin her allegations of expectation for renewal, the employer has instead presented a plausible basis upon which one would not have expected it to renew the contract. When asked to explain how the lower enrolment precipitated by a directive from the Department would have an adverse effect on employing the employee beyond her fixed term, Tukudi was more than generous in his explanation. He clearly indicated how the directive to register fewer students had a knock-off effect. It adversely affected the number of groups, the number of periods and the number of students and ultimately a reshuffling of lecturers to teach subjects for the programme.
[30] I must emphasize that the employee’s expectation, if any, was subjective. It has become trite that the correct barometer for this requirement is objective. The employee has failed to establish any case that shows that the employer, through the conduct and/or verbal undertakings of any of its dully authorized officials, did anything to create the alleged expectation.
[31] In conclusion, I find that the employee, who carries the burden of proof, failed to prove factors that can lead a decision maker in my position to concur with her assertion that there was in existence a reasonable expectation for the employer to renew her fixed term contract when same expired. The employee was thus never dismissed. As per the common law on contracts, the agreed period came to an end.
AWARD
[32] The employer did not, in the manner envisaged by the provisions of section 186(1) of the Act, dismiss the employee.
[33] I accordingly hereby dismiss the employee’s claim.
CCMA COMMISIONER: MATHEWS M RAMOTSHELA
Signed
ELRC 302 -20 /21 NW
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