ELRC 626-20/21FS
Award Date:
29 August 2021
Text
IN THE EDUCATION LABOUR RELATIONS COUNCIL
IN THE MATTER BETWEEN
M E NYAMANE APPLICANT
AND
DEPARTMENT OF EDUCATION – FREE STATE RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 626-20/21FS
DATE : 29 August 2021
PANELLIST : ZOLISWA TABA
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Website: www.elrc.org.za
Details and representation
1. This dispute between ME Nyamane (“The employee”) and the Department of Education – Free State (“The employer)” was arbitrated in terms of section 138 of the LRA read in line with the ELRC Constitution . Mr B. Gonsior, a legal representative from the Kramer Weihmann Attorneys appeared on behalf of the Employee. The Employer was represented by Mr Tsunke, an official from its Labour Relations section.
2. The matter was first set down for arbitration before me on 23 April 2021. Since no pre-arbitration conference was held and that no exchange of documents was done, that day was used for that. The matter was then set down for 17 June 2021 and was partly heard. The arbitration proceedings were concluded on 19 August 2021.
Preliminary issues
3. It became clear at the start of arbitration proceedings that the referral to the ELRC was not made on time and the Employee had attached the application for condonation to the referral form, but no ruling was issued in that regard. Both the Employer and the Employee party were ready to argue the issue of condonation. Such opportunity to argue orally was given to the parties and I made an ex tempore ruling granting condonation. The matter was referred as a con/arb hence I proceeded with arbitration after I granted condonation. The parties also made it clear that they could not resolve the matter. I will therefore deal with condonation briefly below:
Condonation:
4. The Employee’s submission was that the referral was 3 days late. The Employee approached legal wise and the Attorney first had to seek clarity from the Employer on the status of the Employee prior to referring the case. The cover from legal wise to represent the Employee was received only on 14 January 2021, but in between waiting for the cover, the legal representative had been corresponding with the Employer in an attempt to resolve the matter. There were prospects of success as the Employee had been on a fixed term contract uninterrupted since 25 April 2018 to 30 November 2020. There was an expectation of renewal raised by the Employer. The delay was not long so the Employer was not going to be prejudiced if condonation was granted. The Employee was out of work and was the only bread winner.
5. On the other hand, the Employer argued that there were no prospects of success since the Employee was aware that she was a substitute teacher. I granted condonation as the degree of lateness was short, 3 days late ( alleged dismissal date is 30 November 2020 and the dispute was registered with the ELRC on 26 January 2021). The reason given was reasonable as the Employee never abandoned her case and had been pursuing it through her legal representative. As to the merits, a dispute of fact existed which was better left to be decided after evidence was heard. Therefore, the interest of fairness and justice dictated that the dispute be allowed to be aired and both parties be given an opportunity to state their respective cases.
Issue to be decided
6. Dismissal was in dispute. The Employee alleged that an expectation of renewal on a permanent basis was created. On the other hand, the Employer alleges that the fixed term contract came to an end.
7. Parties signed pre- arb minutes and the issues in dispute were recorded as follows:
7.1 Whether there was a dismissal.
7.2 If dismissal is found to exist, whether such dismissal was procedurally and substantively fair.
7.3 The Employee sought retrospective reinstatement and the Employer sought for the matter to be
dismissed.
Background to the issue
8. The Employer is the Department of Education Free State, where the Employee was employed as an Educator prior to her resigning from the Employer’s services in March 2015. The Employee resumed duties as a substitute educator on 24 April 2018 at Tebello Primary School. She was issued with her first appointment letter on 15 May 2018 and the duration of her terms was until 14 December 2018. She received two letters on 30 November 2020 in which her period of employment was indicated as 25 February 2020 – 3 Jun 2020 and 12 August 2020 till 31 October 2020. The Employee worked uninterrupted from April 2018 up to 30 November 2020. After being issued with letters advising her that her contract was coming to an end on 30 November 2020, the Employee sought legal advised and lodged a dismissal dispute with the ELRC.
9. Both parties presented witness testimony. The Employee was the only one to testify for her case. The Employer also called one witness in support of its case. All witnesses testified under oath. Bundle of documents were handed in by both parties and the documents were accepted as what they purport to be.
10. The proceedings were manually and digitally recorded therefore what appears below constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of the arbitration. It is by no means a verbatim minute of what transpired in the course of the proceedings.
Survey of evidence and argument
The Employee’s case
Witness: M.E Nyamane (“the Employee”)
11. The Employee’s testimony was that she worked at Tebello primary school as a substitute educator in Ms Moleme’s position who was booked off sick. She was issued with three appointment letters. The first one was issued on 15 May 2018 ending in December 2018. On 20 November 2020, she was issued with two appointment letters with dates indicating that her appointment was from 25 February 2020 till 01 June 2020 and the other one indicated that her employment period was from 12 August 2020 to 31 October 2021. After receiving the letters she continued to work as usual as she thought she was permanent.
12. In July 2020, the school principal had announced at a staff meeting that Ms Moleme was not going to come back to work as she was to take early retirement at the end of November. The principal told her that he was going to do everything in his power to ensure that she was appointed in Ms Moleme’s position. Since she started working as a substitute teacher in April 2018, her services were never interrupted as she worked right through to 30 November 2021.
13. On 18 September 2020, the principal of the school asked her to approach the Human Resource section and submit her job application documents so she could be captured on the Employer’s database. He had announced in the staff meeting that Ms Moleme was retiring end of November 2020. When Ms Moleme left her position, she thought that she would be the one to be appointed in that position as the principal was happy with her work. On 06 October, the deputy principal informed her that she needed to complete a z83 form for Ms Moleme’s position. She interpreted all this as her being made permanent.
14. She was surprised when Ms Chacha took over the position on 01 December as she thought she was already permanent on the post she substituted on. The principal showed her the message from Mr Modise which recorded that her appointment was not approved. The reason she thought she was permanent was because she did not receive her 37% in lieu of benefits in November 2020. She had received the 37% in October. The 37% in lieu of benefits was reserved for non-permanent educators. She also did not receive the 37% in in July and August 2019.
15. An expectation to be permanent was created and in terms of the ELRC collective Agreement 4/2018 (“the collective agreement”), she expected to be permanent as she worked more than 3 months. She thought after Ms Moleme left, the agreement would take effect and she would be appointed on the post.
16. During cross examination, the employee conceded that she was on Ms Moleme’s position as a substitute educator and did not apply for that position when she started substituting. She further conceded that the database in which she put her name on, was for unemployed educators and that the z83 form was used as an application form not an appointment form. The employee maintained that by not receiving the 37% in November, an expectation that she was permanent was created. She conceded that she did not receive the 37% in from January 2020 until June 2020 but maintained that she also thought she was permanent during that time.
17. She conceded that she did not raise the issue of permanency after June 2020 when she received the 37% again although she thought she was permanent. She confirmed that she wanted to be converted to a permanent educator in terms of the agreement but she was not sure of the requirements to qualify. She confirmed that the post she wanted conversion on was not vacant as it was still occupied by Ms Moleme. She confirmed that there was one Ms Mofokeng who was a deputy principal who left at the time Ms Moleme left. She did not qualify to be placed in her position as she was a post level 1 educator. She was not aware that the school had lost the position of Ms Moleme and that Ms Chacha was taken from the excess list and put on Ms Mofokeng’s post.
The Employer’s case
Witness: Matshidiso Steven Pobe (“Mr Pobe”)
18. His testimony was that he was the principal at the school the employee was a substitute educator. The employee joined the school after Ms Moleme was on incapacity leave and substituted her. Normally a substitute educator’s appointment would be for a fixed period which would be extended in line with the ill educator’s medical certificates. After the school was advised that Ms Moleme was declared permanently incapacitated and would be leaving her employment at the end of November 2020, the school made a request to the employer for the position to be filled by the employee as she was a good worker but such request was not approved as priority on vacant positions was given to educators on the employer’s excess list.
19. When a number of learners in a school decrease and the educators’ number stays the same, such created an excess with educators. Educators in that specific school would then be put on the excess list to be moved to a vacant post when it becomes available at any school. In this case, Ms Chacha was in excess at the school she was at. When the position at his school became vacant, the employer moved her to that position. He indeed informed the employee that he would do his best to assist her to be appointed by recommending her to the position, but he never promised her that he will make her permanent or that she was already permanent. The employee was a good worker hence he recommended her to the position. The authority he had was just to recommend not to appoint her.
20. During cross examination, Mr Pobe said he hoped that the employee would be appointed hence he recommended her. He conceded that the renewal of her appointment about four times could have given the employee an expectation of renewal. He maintained that the z83 form; P20; the curriculum vitae and the qualifications of the employee were submitted when the school made a recommendation for her appointment. He conceded that he had at a staff meeting shared information that Ms Moleme would be exiting her employment permanently at the end of November 2020 hence he requested the employer to extend the employee’s appointment from October to November 2020.
21. Ms Moleme’s post was not vacant as she occupied it until end of November 2020. Ms Moleme’s post only became vacant on 01 December 2020.
22. He maintained that even if there was nothing in writing extending the employee’s employment from October to November, he informed the employee that her appointment was only extended until end of November as Ms Moleme was going off end November. He had always kept the employee updated about Ms Moleme’s issue and the employee knew she was at the school to substitute on a position not vacant.
Employee’s argument
23. It was argued on behalf of the employee that the employee’s case was based on section 186(1)(b) of the LRA. A reasonable expectation of permanency was created when the employee’s contract was renewed on 4 consecutive times; when she did not receive her 37%; when she was requested to submit her documents to be made permanent and when the position, she was occupying was vacated at the time Ms Moleme stopped working. Reference was made to Isaac Masisi v Department of Education- Northwest C553/2019 and it was argued that the fixed term which was renewed until 2016 raised expectations of renewal and failure to renew was unfair. In Owen & Others v Department of Health, KZN the court held that a fixed term contract which went beyond the expiry date was seen as tacitly renewing the contract for an indefinite term. The prayer was for a finding that the employee was dismissed and reinstatement be ordered.
Employer’s argument
24. The employer’s argument was that the employee was aware since 2018 that the purpose of her working at school was to substitute and she was aware of the reason for such. No expectation of permanency was created as the employee was not on a vacant post. The employee knew that the extension of her employment was because Ms Moleme was only exiting at the end of November. The prayer was for a finding that there was no dismissal and that the matter be dismissed.
Analysis of evidence and argument
25. The employee’s case pertains to an alleged dismissal in terms of section 186(1)(b) of the LRA. The employer on the other hand disputes existence of a dismissal, therefore dismissal is in dispute.
26. In terms of section 192 of the LRA , the onus to establish the existence of a dismissal are on the employee and the onus to prove that a dismissal was fair are on the employer once dismissal is established.
27. The provisions of section 186(1)(b) of the LRA were interpreted in City of Cape Town v IMATU obo Searle & Others case number C494/2016 as follows:
“[27] “Despite the amendment of s186(1)(b) by the addition of subsection (ii), the employee could not
have had a reasonable expectation of renewal of the fixed term contract as well as a reasonable
expectation of permanency. The two are mutually exclusive.”
28. It is therefore clear from the Searle (supra) case that an employee relying on section 186(1)(b) had to choose whether the case is about renewal of a fixed term contract or expectation of permanency. Although in this case the employee referred to section 186(1)(b) in general, it is clear from the evidence that the allegation made is in reference to section 186(1)(b)(ii) as the employee based her case on the view that she had an expectation of indefinite or permanent employment.
29. The test for a reasonable expectation is two folds. The first part of the inquiry is whether the employee actually expected the contract to be renewed and the second, whether the expectation was reasonable. With regard to the second part of the inquiry, what needs to be assessed is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perspective, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulation .
Did the employee actually expect the contract to be renewed?
30. In her testimony, the employee related various events in which she alleges that such events raised an expectation that she would be retained by the employer permanently. She testified that the events were: there were months she did not receive her 37% in liue of benefits; when the principal informed her that he would do all that is within his power to ensure that she was appointed; the request for her to submit her documents to human resource section; the renewal on 4 occasions; when she continued working beyond October 2020, when it was confirmed that the person she had substituted was finally exiting her employment and the provisions of the collective agreement.
31. It is therefore clear from her testimony that she indeed had an expectation that her contract would be renewed and that she would replace Ms Moleme. Whether the expectation was reasonable and whether it was created by the employer is what needs to be decided next.
Was the expectation reasonable and was it created by the employer?
32. In order to decide whether a reasonable expectation of employment existed, I must consider all the surrounding facts and circumstances. In determining such, I will deal with each factor the employee alleges created the expectation of renewal on a permanent basis.
33. In respect of the 37% issue, it is common cause that such benefit is reserved for non-permanent educators. The employee’s contention was that when she did not receive the benefit in November 2020, she then accepted that she was permanently employed. This version is unreasonable as the employee conceded that it was not the first time she had not been paid the 37%. She had previously not received the 37% during the period from January 2020 to June 2020. Her testimony was that when she did not receive the 37% during the period of January to June 2020, she also thought she was permanent. The testimony of an expectation to be permanent created in June and again created in November is contradictory.
34. If indeed not paying her the 37 % the first time created an expectation of permanency, why did she not ask any questions when she started receiving the 37% in July 2020? When asked this question during cross examination, the employee confirmed that she did not ask questions as to why she was now paid the 37% and could not provide a response as to why she did not address the issue then.
35. Furthermore, the employee did not dispute that she was at the school as a substitute educator. Since April 2018 up until November 2020, the employee was aware that the post in which she was in was not vacant as it was still occupied by Ms Molema albeit her being on incapacity leave. She confirmed during cross examination that the post was not vacant and that it was still Ms Moleme’s post until the end of November 2020. If then the post was not vacant and she was aware that Ms Moleme was still occupying it, how did she arrive at a conclusion that she was permanent on the months she did not receive the 37%? The reliance on the 37% as a factor which created an expectation for permanency is not reasonable and cannot stand.
36. In respect of the principal creating an expectation, such was denied by the principal. Mr Pobe’s testimony that he did not promise the employee the post but indicated that he was going to recommend her was not disputed. Furthermore, his testimony that the employee’s documents which were sent to the human resource department were sent to support the school’s recommendation was not disputed. What the employee must appreciate is that a recommendation remains a recommendation and cannot be interpreted to mean a final decision. When one is recommended for a position, up until a person with authority accepts such recommendation and approve it to be an appointment, it remains just a recommendation.
37. The employee must appreciate that the principal is not her employer and not clothed with the authority to appoint educators appointed in terms of the EEA . It is not the employee’s case that the post in question was a school governing body post and that the governing body, of which the principal is part of, created an expectation of permanency. Had that been the case, the dispute would have been referred to the CCMA .
38. In terms of section 6 (1)(b) of the EEA, the Head of the Department (“the HOD”) in a Province is the one with such authority to appoint an educator. No evidence was led before me indicating that the HOD had at any point promised the employee that she would be permanent. Even if it were to be accepted that the principal had told the employee that she would be employed permanently, such promise could not be interpreted to mean that the employer created an expectation of permanency as the principal does not have authority to appoint educators or to bind the employer. What must be appreciated is that for a dispute to fall under section 186(1)(b), an expectation should have been created by an employer. In this case, no proof or evidence was led that the person who has authority to bind the employer created such expectation. Therefore, the reliance on what the principal said, cannot create a reasonable expectation.
39. In respect of the roll-over of her contract/ appointment or the renewals of her appointment and working beyond 30 October 2020, it is clear from the evidence led that the purpose for the fixed term contract or appointment was to substitute Ms Moleme while she was off sick. Even though the employee only received the other appointment letters in November 2020 backdating her appointment, at all times she was aware that she is occupying a post which is not vacant, which was occupied by Ms Molema. It is not unreasonable to conclude that the employee was at the school for a particular assignment, which was to substitute until there was no need to do so.
40. Furthermore, in her own testimony, the employee confirmed that she was aware that Ms Moleme was exiting her position at the end of November 2020. This therefore is an indication that the purpose of her fixed term employment came to an end when the need to substitute was no more there. I must agree that it is possible for the employee to have “assumed” that she could be permanent when Ms Moleme leaves as she was the one substituting her and she had been recommended to the position, but such assumption cannot be construed to be a reasonable expectation created by the employer.
41. Furthermore, it is clear from the employer’s bundle on pages 36 to 41 that the principal had been requesting approval from the employer to appoint the employee as a substitute educator hence the employee continued to work until November 2020. Of most importance is the letter on page 41, which the principal wrote on 21 September 2020 requesting the extension of the employee’s appointment as a substitute educator from 30 October 2020 to 30 November 2020.
42. This letter is consistent with Mr Pobe’s testimony where he said that he was the one who requested the employer to extend substitution for another month as Ms Moleme was only going to vacate the post at the end of November. Therefore the expectation of permanency due to working beyond the end of October is unreasonable. Furthermore, if such had to be accepted, it would therefore mean that the employee was permanently employed in November of which was not possible as the post was not yet vacant. This factor also falls.
43. Although the employee’s case was about expectation of renewal on permanent basis, she also relied on the collective agreement and argued that her expectation also derived from that collective agreement. Her testimony was that she understood the collective agreement to mean that an educator who was on a post temporarily for at least 3 months was supposed to be permanent as such, she was supposed to have been converted to a permanent educator after 3months.
44. The reliance on the collective agreement is misplaced. Annexure A, of the collective agreement at clause 4 deals with appointment of temporary educators. Clause 4.1 of the Annexure clearly excludes substitute educators who are appointed to substitute a permanent educator who is off from work. It is common cause that the employee was a substitute educator, therefore, as per clause 4, she is excluded from the collective agreement.
45. Furthermore, the employee did not refer a dispute in terms of which she alleges non-compliance to a collective agreement which covers her. The issue before me is an alleged dismissal. If the employee’s case was that in terms of the collective agreement she ought to have been converted, she would have filed a dispute either in terms of section 24 of the LRA or in terms of clause 69 of the ELRC Constitution, filed an enforcement dispute. This is not the case.
46. With regard to the case law argued by the employee party, they are distinguishable from the case before me. In both cases, the employees in that matter were not on fixed term contracts to substitute existing employees. It is always important when one compares fixed term contracts to refer to the purpose of such fixed term contract. In this case, the employee was not on a vacant post, she was substituting on a post filled by another employee.
47. If the employee wanted to challenge the appointment of Ms Chacha which took place on 01 December 2020, then she ought to have referred a relevant dispute in which the appointment of Ms Chacha would be the issue in dispute. If on the other hand she wanted to challenge the decision not to approve the recommendation by the school for her to be appointed permanently, a dispute relating to that ought to have been referred to an appropriate forum. What is before me is a section 186(1)(b) dispute and I confined myself to such a dispute.
48. Furthermore, when the employer indicated that the school lost the post of Ms Moleme on the establishment, such submission was not challenged by insisting that the employer provide proof of such. It was further not disputed that the employee did not meet the requirements for the post which Ms Mofokeng had occupied. The employee conceded that she was not qualified to fill Ms Mofokeng’s position.
49. Even if for some other reason it were to be accepted that Ms Chacha was appointed in Ms Moleme’s post, the evidence that educators on the excess list were given priority on vacant posts and that Ms Chacha was taken from that list was not disputed.
50. I was not referred to any clause on the appointment letters or on any contract which could be interpreted as giving the employee an expectation that she would be appointed permanently when the post became vacant. All the employee refers to is her perception of what she thought would be after Ms Moleme’s exit.
51. Taking into consideration all the evidence and facts before me, it is clear that the expectation that was created of renewal on permanent basis was the employee’s own perception of what she thought would happen. The employee failed to establish that the employer created an expectation that her employment would be renewed on a permanent nature. As a result, the employee failed to discharge onus rested on her to establish existence of a dismissal.
Award
45. The employee, M E Nyamane, failed to establish the existence of a dismissal.
46. The mater is dismissed.
Signature:
Commissioner: Zoliswa Taba
IN THE MATTER BETWEEN
M E NYAMANE APPLICANT
AND
DEPARTMENT OF EDUCATION – FREE STATE RESPONDENT
ARBITRATION AWARD
CASE NUMBER: ELRC 626-20/21FS
DATE : 29 August 2021
PANELLIST : ZOLISWA TABA
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Website: www.elrc.org.za
Details and representation
1. This dispute between ME Nyamane (“The employee”) and the Department of Education – Free State (“The employer)” was arbitrated in terms of section 138 of the LRA read in line with the ELRC Constitution . Mr B. Gonsior, a legal representative from the Kramer Weihmann Attorneys appeared on behalf of the Employee. The Employer was represented by Mr Tsunke, an official from its Labour Relations section.
2. The matter was first set down for arbitration before me on 23 April 2021. Since no pre-arbitration conference was held and that no exchange of documents was done, that day was used for that. The matter was then set down for 17 June 2021 and was partly heard. The arbitration proceedings were concluded on 19 August 2021.
Preliminary issues
3. It became clear at the start of arbitration proceedings that the referral to the ELRC was not made on time and the Employee had attached the application for condonation to the referral form, but no ruling was issued in that regard. Both the Employer and the Employee party were ready to argue the issue of condonation. Such opportunity to argue orally was given to the parties and I made an ex tempore ruling granting condonation. The matter was referred as a con/arb hence I proceeded with arbitration after I granted condonation. The parties also made it clear that they could not resolve the matter. I will therefore deal with condonation briefly below:
Condonation:
4. The Employee’s submission was that the referral was 3 days late. The Employee approached legal wise and the Attorney first had to seek clarity from the Employer on the status of the Employee prior to referring the case. The cover from legal wise to represent the Employee was received only on 14 January 2021, but in between waiting for the cover, the legal representative had been corresponding with the Employer in an attempt to resolve the matter. There were prospects of success as the Employee had been on a fixed term contract uninterrupted since 25 April 2018 to 30 November 2020. There was an expectation of renewal raised by the Employer. The delay was not long so the Employer was not going to be prejudiced if condonation was granted. The Employee was out of work and was the only bread winner.
5. On the other hand, the Employer argued that there were no prospects of success since the Employee was aware that she was a substitute teacher. I granted condonation as the degree of lateness was short, 3 days late ( alleged dismissal date is 30 November 2020 and the dispute was registered with the ELRC on 26 January 2021). The reason given was reasonable as the Employee never abandoned her case and had been pursuing it through her legal representative. As to the merits, a dispute of fact existed which was better left to be decided after evidence was heard. Therefore, the interest of fairness and justice dictated that the dispute be allowed to be aired and both parties be given an opportunity to state their respective cases.
Issue to be decided
6. Dismissal was in dispute. The Employee alleged that an expectation of renewal on a permanent basis was created. On the other hand, the Employer alleges that the fixed term contract came to an end.
7. Parties signed pre- arb minutes and the issues in dispute were recorded as follows:
7.1 Whether there was a dismissal.
7.2 If dismissal is found to exist, whether such dismissal was procedurally and substantively fair.
7.3 The Employee sought retrospective reinstatement and the Employer sought for the matter to be
dismissed.
Background to the issue
8. The Employer is the Department of Education Free State, where the Employee was employed as an Educator prior to her resigning from the Employer’s services in March 2015. The Employee resumed duties as a substitute educator on 24 April 2018 at Tebello Primary School. She was issued with her first appointment letter on 15 May 2018 and the duration of her terms was until 14 December 2018. She received two letters on 30 November 2020 in which her period of employment was indicated as 25 February 2020 – 3 Jun 2020 and 12 August 2020 till 31 October 2020. The Employee worked uninterrupted from April 2018 up to 30 November 2020. After being issued with letters advising her that her contract was coming to an end on 30 November 2020, the Employee sought legal advised and lodged a dismissal dispute with the ELRC.
9. Both parties presented witness testimony. The Employee was the only one to testify for her case. The Employer also called one witness in support of its case. All witnesses testified under oath. Bundle of documents were handed in by both parties and the documents were accepted as what they purport to be.
10. The proceedings were manually and digitally recorded therefore what appears below constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of the arbitration. It is by no means a verbatim minute of what transpired in the course of the proceedings.
Survey of evidence and argument
The Employee’s case
Witness: M.E Nyamane (“the Employee”)
11. The Employee’s testimony was that she worked at Tebello primary school as a substitute educator in Ms Moleme’s position who was booked off sick. She was issued with three appointment letters. The first one was issued on 15 May 2018 ending in December 2018. On 20 November 2020, she was issued with two appointment letters with dates indicating that her appointment was from 25 February 2020 till 01 June 2020 and the other one indicated that her employment period was from 12 August 2020 to 31 October 2021. After receiving the letters she continued to work as usual as she thought she was permanent.
12. In July 2020, the school principal had announced at a staff meeting that Ms Moleme was not going to come back to work as she was to take early retirement at the end of November. The principal told her that he was going to do everything in his power to ensure that she was appointed in Ms Moleme’s position. Since she started working as a substitute teacher in April 2018, her services were never interrupted as she worked right through to 30 November 2021.
13. On 18 September 2020, the principal of the school asked her to approach the Human Resource section and submit her job application documents so she could be captured on the Employer’s database. He had announced in the staff meeting that Ms Moleme was retiring end of November 2020. When Ms Moleme left her position, she thought that she would be the one to be appointed in that position as the principal was happy with her work. On 06 October, the deputy principal informed her that she needed to complete a z83 form for Ms Moleme’s position. She interpreted all this as her being made permanent.
14. She was surprised when Ms Chacha took over the position on 01 December as she thought she was already permanent on the post she substituted on. The principal showed her the message from Mr Modise which recorded that her appointment was not approved. The reason she thought she was permanent was because she did not receive her 37% in lieu of benefits in November 2020. She had received the 37% in October. The 37% in lieu of benefits was reserved for non-permanent educators. She also did not receive the 37% in in July and August 2019.
15. An expectation to be permanent was created and in terms of the ELRC collective Agreement 4/2018 (“the collective agreement”), she expected to be permanent as she worked more than 3 months. She thought after Ms Moleme left, the agreement would take effect and she would be appointed on the post.
16. During cross examination, the employee conceded that she was on Ms Moleme’s position as a substitute educator and did not apply for that position when she started substituting. She further conceded that the database in which she put her name on, was for unemployed educators and that the z83 form was used as an application form not an appointment form. The employee maintained that by not receiving the 37% in November, an expectation that she was permanent was created. She conceded that she did not receive the 37% in from January 2020 until June 2020 but maintained that she also thought she was permanent during that time.
17. She conceded that she did not raise the issue of permanency after June 2020 when she received the 37% again although she thought she was permanent. She confirmed that she wanted to be converted to a permanent educator in terms of the agreement but she was not sure of the requirements to qualify. She confirmed that the post she wanted conversion on was not vacant as it was still occupied by Ms Moleme. She confirmed that there was one Ms Mofokeng who was a deputy principal who left at the time Ms Moleme left. She did not qualify to be placed in her position as she was a post level 1 educator. She was not aware that the school had lost the position of Ms Moleme and that Ms Chacha was taken from the excess list and put on Ms Mofokeng’s post.
The Employer’s case
Witness: Matshidiso Steven Pobe (“Mr Pobe”)
18. His testimony was that he was the principal at the school the employee was a substitute educator. The employee joined the school after Ms Moleme was on incapacity leave and substituted her. Normally a substitute educator’s appointment would be for a fixed period which would be extended in line with the ill educator’s medical certificates. After the school was advised that Ms Moleme was declared permanently incapacitated and would be leaving her employment at the end of November 2020, the school made a request to the employer for the position to be filled by the employee as she was a good worker but such request was not approved as priority on vacant positions was given to educators on the employer’s excess list.
19. When a number of learners in a school decrease and the educators’ number stays the same, such created an excess with educators. Educators in that specific school would then be put on the excess list to be moved to a vacant post when it becomes available at any school. In this case, Ms Chacha was in excess at the school she was at. When the position at his school became vacant, the employer moved her to that position. He indeed informed the employee that he would do his best to assist her to be appointed by recommending her to the position, but he never promised her that he will make her permanent or that she was already permanent. The employee was a good worker hence he recommended her to the position. The authority he had was just to recommend not to appoint her.
20. During cross examination, Mr Pobe said he hoped that the employee would be appointed hence he recommended her. He conceded that the renewal of her appointment about four times could have given the employee an expectation of renewal. He maintained that the z83 form; P20; the curriculum vitae and the qualifications of the employee were submitted when the school made a recommendation for her appointment. He conceded that he had at a staff meeting shared information that Ms Moleme would be exiting her employment permanently at the end of November 2020 hence he requested the employer to extend the employee’s appointment from October to November 2020.
21. Ms Moleme’s post was not vacant as she occupied it until end of November 2020. Ms Moleme’s post only became vacant on 01 December 2020.
22. He maintained that even if there was nothing in writing extending the employee’s employment from October to November, he informed the employee that her appointment was only extended until end of November as Ms Moleme was going off end November. He had always kept the employee updated about Ms Moleme’s issue and the employee knew she was at the school to substitute on a position not vacant.
Employee’s argument
23. It was argued on behalf of the employee that the employee’s case was based on section 186(1)(b) of the LRA. A reasonable expectation of permanency was created when the employee’s contract was renewed on 4 consecutive times; when she did not receive her 37%; when she was requested to submit her documents to be made permanent and when the position, she was occupying was vacated at the time Ms Moleme stopped working. Reference was made to Isaac Masisi v Department of Education- Northwest C553/2019 and it was argued that the fixed term which was renewed until 2016 raised expectations of renewal and failure to renew was unfair. In Owen & Others v Department of Health, KZN the court held that a fixed term contract which went beyond the expiry date was seen as tacitly renewing the contract for an indefinite term. The prayer was for a finding that the employee was dismissed and reinstatement be ordered.
Employer’s argument
24. The employer’s argument was that the employee was aware since 2018 that the purpose of her working at school was to substitute and she was aware of the reason for such. No expectation of permanency was created as the employee was not on a vacant post. The employee knew that the extension of her employment was because Ms Moleme was only exiting at the end of November. The prayer was for a finding that there was no dismissal and that the matter be dismissed.
Analysis of evidence and argument
25. The employee’s case pertains to an alleged dismissal in terms of section 186(1)(b) of the LRA. The employer on the other hand disputes existence of a dismissal, therefore dismissal is in dispute.
26. In terms of section 192 of the LRA , the onus to establish the existence of a dismissal are on the employee and the onus to prove that a dismissal was fair are on the employer once dismissal is established.
27. The provisions of section 186(1)(b) of the LRA were interpreted in City of Cape Town v IMATU obo Searle & Others case number C494/2016 as follows:
“[27] “Despite the amendment of s186(1)(b) by the addition of subsection (ii), the employee could not
have had a reasonable expectation of renewal of the fixed term contract as well as a reasonable
expectation of permanency. The two are mutually exclusive.”
28. It is therefore clear from the Searle (supra) case that an employee relying on section 186(1)(b) had to choose whether the case is about renewal of a fixed term contract or expectation of permanency. Although in this case the employee referred to section 186(1)(b) in general, it is clear from the evidence that the allegation made is in reference to section 186(1)(b)(ii) as the employee based her case on the view that she had an expectation of indefinite or permanent employment.
29. The test for a reasonable expectation is two folds. The first part of the inquiry is whether the employee actually expected the contract to be renewed and the second, whether the expectation was reasonable. With regard to the second part of the inquiry, what needs to be assessed is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perspective, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulation .
Did the employee actually expect the contract to be renewed?
30. In her testimony, the employee related various events in which she alleges that such events raised an expectation that she would be retained by the employer permanently. She testified that the events were: there were months she did not receive her 37% in liue of benefits; when the principal informed her that he would do all that is within his power to ensure that she was appointed; the request for her to submit her documents to human resource section; the renewal on 4 occasions; when she continued working beyond October 2020, when it was confirmed that the person she had substituted was finally exiting her employment and the provisions of the collective agreement.
31. It is therefore clear from her testimony that she indeed had an expectation that her contract would be renewed and that she would replace Ms Moleme. Whether the expectation was reasonable and whether it was created by the employer is what needs to be decided next.
Was the expectation reasonable and was it created by the employer?
32. In order to decide whether a reasonable expectation of employment existed, I must consider all the surrounding facts and circumstances. In determining such, I will deal with each factor the employee alleges created the expectation of renewal on a permanent basis.
33. In respect of the 37% issue, it is common cause that such benefit is reserved for non-permanent educators. The employee’s contention was that when she did not receive the benefit in November 2020, she then accepted that she was permanently employed. This version is unreasonable as the employee conceded that it was not the first time she had not been paid the 37%. She had previously not received the 37% during the period from January 2020 to June 2020. Her testimony was that when she did not receive the 37% during the period of January to June 2020, she also thought she was permanent. The testimony of an expectation to be permanent created in June and again created in November is contradictory.
34. If indeed not paying her the 37 % the first time created an expectation of permanency, why did she not ask any questions when she started receiving the 37% in July 2020? When asked this question during cross examination, the employee confirmed that she did not ask questions as to why she was now paid the 37% and could not provide a response as to why she did not address the issue then.
35. Furthermore, the employee did not dispute that she was at the school as a substitute educator. Since April 2018 up until November 2020, the employee was aware that the post in which she was in was not vacant as it was still occupied by Ms Molema albeit her being on incapacity leave. She confirmed during cross examination that the post was not vacant and that it was still Ms Moleme’s post until the end of November 2020. If then the post was not vacant and she was aware that Ms Moleme was still occupying it, how did she arrive at a conclusion that she was permanent on the months she did not receive the 37%? The reliance on the 37% as a factor which created an expectation for permanency is not reasonable and cannot stand.
36. In respect of the principal creating an expectation, such was denied by the principal. Mr Pobe’s testimony that he did not promise the employee the post but indicated that he was going to recommend her was not disputed. Furthermore, his testimony that the employee’s documents which were sent to the human resource department were sent to support the school’s recommendation was not disputed. What the employee must appreciate is that a recommendation remains a recommendation and cannot be interpreted to mean a final decision. When one is recommended for a position, up until a person with authority accepts such recommendation and approve it to be an appointment, it remains just a recommendation.
37. The employee must appreciate that the principal is not her employer and not clothed with the authority to appoint educators appointed in terms of the EEA . It is not the employee’s case that the post in question was a school governing body post and that the governing body, of which the principal is part of, created an expectation of permanency. Had that been the case, the dispute would have been referred to the CCMA .
38. In terms of section 6 (1)(b) of the EEA, the Head of the Department (“the HOD”) in a Province is the one with such authority to appoint an educator. No evidence was led before me indicating that the HOD had at any point promised the employee that she would be permanent. Even if it were to be accepted that the principal had told the employee that she would be employed permanently, such promise could not be interpreted to mean that the employer created an expectation of permanency as the principal does not have authority to appoint educators or to bind the employer. What must be appreciated is that for a dispute to fall under section 186(1)(b), an expectation should have been created by an employer. In this case, no proof or evidence was led that the person who has authority to bind the employer created such expectation. Therefore, the reliance on what the principal said, cannot create a reasonable expectation.
39. In respect of the roll-over of her contract/ appointment or the renewals of her appointment and working beyond 30 October 2020, it is clear from the evidence led that the purpose for the fixed term contract or appointment was to substitute Ms Moleme while she was off sick. Even though the employee only received the other appointment letters in November 2020 backdating her appointment, at all times she was aware that she is occupying a post which is not vacant, which was occupied by Ms Molema. It is not unreasonable to conclude that the employee was at the school for a particular assignment, which was to substitute until there was no need to do so.
40. Furthermore, in her own testimony, the employee confirmed that she was aware that Ms Moleme was exiting her position at the end of November 2020. This therefore is an indication that the purpose of her fixed term employment came to an end when the need to substitute was no more there. I must agree that it is possible for the employee to have “assumed” that she could be permanent when Ms Moleme leaves as she was the one substituting her and she had been recommended to the position, but such assumption cannot be construed to be a reasonable expectation created by the employer.
41. Furthermore, it is clear from the employer’s bundle on pages 36 to 41 that the principal had been requesting approval from the employer to appoint the employee as a substitute educator hence the employee continued to work until November 2020. Of most importance is the letter on page 41, which the principal wrote on 21 September 2020 requesting the extension of the employee’s appointment as a substitute educator from 30 October 2020 to 30 November 2020.
42. This letter is consistent with Mr Pobe’s testimony where he said that he was the one who requested the employer to extend substitution for another month as Ms Moleme was only going to vacate the post at the end of November. Therefore the expectation of permanency due to working beyond the end of October is unreasonable. Furthermore, if such had to be accepted, it would therefore mean that the employee was permanently employed in November of which was not possible as the post was not yet vacant. This factor also falls.
43. Although the employee’s case was about expectation of renewal on permanent basis, she also relied on the collective agreement and argued that her expectation also derived from that collective agreement. Her testimony was that she understood the collective agreement to mean that an educator who was on a post temporarily for at least 3 months was supposed to be permanent as such, she was supposed to have been converted to a permanent educator after 3months.
44. The reliance on the collective agreement is misplaced. Annexure A, of the collective agreement at clause 4 deals with appointment of temporary educators. Clause 4.1 of the Annexure clearly excludes substitute educators who are appointed to substitute a permanent educator who is off from work. It is common cause that the employee was a substitute educator, therefore, as per clause 4, she is excluded from the collective agreement.
45. Furthermore, the employee did not refer a dispute in terms of which she alleges non-compliance to a collective agreement which covers her. The issue before me is an alleged dismissal. If the employee’s case was that in terms of the collective agreement she ought to have been converted, she would have filed a dispute either in terms of section 24 of the LRA or in terms of clause 69 of the ELRC Constitution, filed an enforcement dispute. This is not the case.
46. With regard to the case law argued by the employee party, they are distinguishable from the case before me. In both cases, the employees in that matter were not on fixed term contracts to substitute existing employees. It is always important when one compares fixed term contracts to refer to the purpose of such fixed term contract. In this case, the employee was not on a vacant post, she was substituting on a post filled by another employee.
47. If the employee wanted to challenge the appointment of Ms Chacha which took place on 01 December 2020, then she ought to have referred a relevant dispute in which the appointment of Ms Chacha would be the issue in dispute. If on the other hand she wanted to challenge the decision not to approve the recommendation by the school for her to be appointed permanently, a dispute relating to that ought to have been referred to an appropriate forum. What is before me is a section 186(1)(b) dispute and I confined myself to such a dispute.
48. Furthermore, when the employer indicated that the school lost the post of Ms Moleme on the establishment, such submission was not challenged by insisting that the employer provide proof of such. It was further not disputed that the employee did not meet the requirements for the post which Ms Mofokeng had occupied. The employee conceded that she was not qualified to fill Ms Mofokeng’s position.
49. Even if for some other reason it were to be accepted that Ms Chacha was appointed in Ms Moleme’s post, the evidence that educators on the excess list were given priority on vacant posts and that Ms Chacha was taken from that list was not disputed.
50. I was not referred to any clause on the appointment letters or on any contract which could be interpreted as giving the employee an expectation that she would be appointed permanently when the post became vacant. All the employee refers to is her perception of what she thought would be after Ms Moleme’s exit.
51. Taking into consideration all the evidence and facts before me, it is clear that the expectation that was created of renewal on permanent basis was the employee’s own perception of what she thought would happen. The employee failed to establish that the employer created an expectation that her employment would be renewed on a permanent nature. As a result, the employee failed to discharge onus rested on her to establish existence of a dismissal.
Award
45. The employee, M E Nyamane, failed to establish the existence of a dismissal.
46. The mater is dismissed.
Signature:
Commissioner: Zoliswa Taba
ELRC 302 -20 /21 NW
Text