ELRC26-21/22NC
Award Date:
07 September 2021
Text
Panelist: Thabo Maruping
Case No.: ELRC26-21/22NC
Date of Award: 07 September 2021
In the ARBITRATION between:
NEHAWU obo Maharaj and 12 others
(Union / Applicant)
and
Northern Cape Urban TVET College
(Respondent)
Applicant’s representative: NEHAWU MLAWULI MGUYE
Applicant’s address: 64 – 70 Du Toitspan Road, Telkom Building
Kimberley
8301 Telephone:
Telefax:
Email Mlawuli@nehawu.org.za
Respondent’s representative: Mr. RAMPORORO
Respondent’s address: Northern Cape Urban TVET College
KIMBERLEY
83001
Telephone:
Telefax:
Email emokokong@ncutvet.edu.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (“the LRA”) of an alleged dismissal on 22 July 2021 the matter was part-heard and hearing was finalised on, 17 August 2021 on the Zoom Video Conferencing Platform. The Applicants’, Mr Maharaj and 12 others were represented by Mr. Mlawuli Mguye from National Education, Health and Allied Workers Union (NEHAWU). The Respondent was represented by Mr. Malebo Rampororo, a Labour Relations within the Labour Relations Directorate of the Respondent.
2. Two bundle of documents were handed in as evidence named, “Bundle A” from the Applicant and “Bundle B” from the Respondent.
3. Receipt of Closing arguments: 27 August 2021 (written submissions)
4. The hearing was digitally recorded.
BACKGROUND
5. The Applicants’ were employed as Lecturers between city Campus Northern Cape Urban TVET College and Phatsimang College, in Kimberley. The Applicants’ were employed on a two year fixed term contract from, 4 February 2019 up until 31 December 2020. The Applicants’ let evidence through a number of Department of Higher Education and Training (DHET) circulars and settlement agreement between NEHAWU and General Public Service Sector Bargaining Council (GPSSBC), which they believe prohibited the fixed term contract coming to an end. The Respondent NCUTVET College argued that they were primary employer, and the circulars were just directive and had no legal binding to the college. A pre-arbitration agreement was concluded prior to the commencement of the hearing, and signed by both parties.
Issue to be decided:
6. I must decide whether the Respondent created a reasonable expectation that the Applicants’ be retained or be made permanent.
7. Whether the circulars let as evidence have a binding legal effect to the College.
SURVEY OF EVIDENCE
Applicants’ Case
8. The Applicants’ were represented by Mr. M Mguye, from NEHAWU, who led the evidence through Mr Maharaj, who testified under oath. Mr Maharaj testified that circular no. 30 of 2020 gave clear instruction to all colleges that no TVET Colleges was to appoint or terminate employees before the Post Provisioning Norm (PPN) and Ministerial program is finalised. He further testified that the DHET created reasonable expectation through the circulars that no contracts will be terminated. He further argued that the DHET issued another Circular no. 40 of 2020 which gave clarity on circular no. 20 of 2020. Mr Maharaj further averred that circular 40 of 2020 was instructing all colleges to ring-fenced all positions, meaning they must be protected from being terminated. This meant all ministerial positions and post level 1 was to remain until the PPN model is completed. He stated that the Applicants’ were given letters on, 24 August 2020 that their contracts were ending. He further believed that the PPN process was going secure him a permanent employment as promised by the principal. He thus concluded that ending of their employment contracts constituted a dismissal.
9. During cross examination, Mr Maharaj confirmed that the primary employer was Department of High Education and Training. Although conceded that they were interviewed by NCUTVET College and they signed the employment contracts with college. He agreed that they concluded fixed term contracts which had a start date and date of expiry. He further stated that the college is not independent of DHET. He argued that the principal created a reasonable expectation when he told him that they would be made permanent. He stated that he moved to Kimberley from a permanent job with believe that this job was going to be made permanent.
Respondent’s Case
10. The Respondent’s Mr Malebo Rampororo, led evidence through Ms. E Mokokong, who testified under oath. She testified that the Applicants’ were made aware in their interviews that the posts were fixed term contract. She stated that the fixed term contract was for duration of two years with the start date, February 2019 until December 2020. She confirmed that the Applicants’ entered into employment contracts with NCU TVET College, and no reasonable expectation was created by the college. She further averred that the posts at the college were dependent on the number of enrollment of students. She argued that the lecturers could not be kept as the reason was based on operations of the college. She stated that all Applicants’ were given letters of notice on, 24 August 2020 that contracts were ending. She confirmed that all circulars that were issued were not one size fits all, that it was not practical possible to apply the circulars willy-nilly. She argued that keeping all lectures at the college was going to have serious budget constrain. She argued that the Applicants’ posts were not classified critical as per PPN model. She further stated that the circulars were guidelines, and that the college was to carefully apply them as per the guidelines. She argued that NCUTVET College as a primary employer never created any reasonable expectation, and that the Applicants’ case relied on the DHET circulars.
11. During cross examination, the witness testified that NCU TVET College was a primary employer of the Applicants’. She stated that all Applicants’ signed fixed term contract with start and end date with NCTVET College. She further stated that college interviewed all Applicants and they were all informed that all posts were fixed term contracts. The NCU TVET College as a primary employer never made any promises. She further made remarks that the college was not a member of TVET Colleges Governor’s Councils. She argued that the posts advertised and filled by the college were of natural attrition. She testified that she could not interpret circulars even though she was employed by DHET. Her final argument was that DHET as the authors of the circulars would have been better placed to contextualise the circulars.
ANALYSIS OF EVIDENCE AND ARGUMENT
SUBSTANTIVE FAIRNESS OF THE DISMISSAL
12. Section 138(7) of the LRA requires that I submit an arbitration award with brief reasons. I have taken into account all the relevant evidence and arguments, but will only refer to those evidence and arguments necessary to substantiate my award.
13. The onus is on the Applicants’ to prove that they had a reasonable expectation and that they will be retained indefinite. Based on the evidence let, it was common cause that the Applicants’ were interviewed by NCU TVET College. That the fixed term contract started in 04 February 2019 to 31 December 2020 was for a period of two years. The Applicants’ signed the contracts with NCU TVET College. That their salaries were paid by the college which the Respondent argued made them the primary employer. The Applicants’ conceded to have received letters of notice on, 24 August 2020 that their contracts were ending. Mafihla v Govan Mbeki Municipality {2005} 26 ILJ 257 [LC] held that the Respondent was within his rights not to renew Fixed-Term and/or maximum duration contracts entered with Applicant’s based on operational response.
14. Page 1 of the Respondent Bundle, the Applicants’ employment contracts, clearly stipulates that by signing this contract with no expectation permanent appoint must be expected, secondly it’s the duration of two years from February 2019 to December 2020, lastly that the contract is entered into with NCUTVET College.
15. Ordinarily the repeat of renewal of contracts of employment would validate the Applicant’s expectation of permanent employment, which is not the case.
16. Section 23 of the Constitution of the Republic of South Africa, provides for fair labour practices.
17. The Labour Relations Act no. 66 of 1999 as amended gives effect to the Constitutional imperative of fair labour practices. The imperativeness is further supported by the Public Service Administration Act which gives effect to the terms and conditions of Employment.
18. Section 186(1)(b)(ii) of the LRA, which states:
“(b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer-
…to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.” (my emphasis)
19. In Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC) the court held that in the case where the end of an agreed fixed term is defined by the occurrence of a particular event, there is no dismissal.
20. The courts adopted the approach in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733(LC) where the court held that the fixed term contract terminates by operation of law. Such termination does not constitute dismissal. The Applicants’ contracts do provide for termination by an operation of law. Therefore it does not constitute a dismissal.
21. Sections 210 of the LRA resolves any conflicting laws arising out of the LRA and any law, and provides that where a conflict arises between the LRA and any other Law, the provisions of the LRA will apply unless the other law expressly amends the LRA. It is in my opinion that the DHET circulars HR no.30 of 2020, no. 40 of 2020, no.2 of 2021, TVETCGC circular 1 of 2021, PPN for TVET College Policy, PPN implementation Management, Employers Ministerial program, from DHET including settlement agreement entered into between NEHAWU and GPSSBC does not amend the LRA.
22. Our Courts have held that the test for a reasonable expectation is two-fold; the first being, whether the employee expected the contract to be renewed; and the second being, whether the expectation was reasonable. See University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), and MEC for the Department of Finance, Eastern Cape v De Milander and others [2011] 9 BLLR 893 (LC).
23. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354, it was held that the second part of the test for reasonable expectation, is whether the subjective expectation, objectively assessed is considered reasonable. Apart from the subjective perception, 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 stipulations.
24. The courts identified a number of factors, which may influence such finding, namely, but not limited to
i. Agreements
ii. Undertaking by the employer
iii. Custom or practice in regard to renewal
iv. Availability of posts
v. The purpose and conclusion of the fixed term contract
vi. Inconsistent conduct
vii. Failure to give reasonable notice
viii. The nature of the business
25. The Applicants’ has merely relied on the circulars from DHET not withstanding that they were employed on a fixed term contract by NCU TVET College. There was no undertaking made by the primary employer NCU TVET College. It is not before me that the positions were available. Seemingly the purpose of the Respondent was to meet their obligation to the programme. There is no evidence that the Respondent acted inconsistently. The Respondent has given sufficient notice to the Applicants’. The nature of the business of the Respondent is to serve the people of Republic through education and is not a profit making entity.
26. For the above brief reasons, the application must fail.
Finding
27. Based on the above, the finding is that the Applicants did not have a reasonable expectation that their fixed term contract would be renewed or be retained indefinite, and the non-renewal of his contract does not constitute a dismissal in terms of section 186(1)(b)(i) of the LRA.
Award
28. The Applicants have not shown that they had been a dismissal in terms of section 186(1)(b)(i) of the Labour Relations Act. They are not entitled to any relief.
Thabo Maruping
ELRC Arbitrator
Case No.: ELRC26-21/22NC
Date of Award: 07 September 2021
In the ARBITRATION between:
NEHAWU obo Maharaj and 12 others
(Union / Applicant)
and
Northern Cape Urban TVET College
(Respondent)
Applicant’s representative: NEHAWU MLAWULI MGUYE
Applicant’s address: 64 – 70 Du Toitspan Road, Telkom Building
Kimberley
8301 Telephone:
Telefax:
Email Mlawuli@nehawu.org.za
Respondent’s representative: Mr. RAMPORORO
Respondent’s address: Northern Cape Urban TVET College
KIMBERLEY
83001
Telephone:
Telefax:
Email emokokong@ncutvet.edu.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (“the LRA”) of an alleged dismissal on 22 July 2021 the matter was part-heard and hearing was finalised on, 17 August 2021 on the Zoom Video Conferencing Platform. The Applicants’, Mr Maharaj and 12 others were represented by Mr. Mlawuli Mguye from National Education, Health and Allied Workers Union (NEHAWU). The Respondent was represented by Mr. Malebo Rampororo, a Labour Relations within the Labour Relations Directorate of the Respondent.
2. Two bundle of documents were handed in as evidence named, “Bundle A” from the Applicant and “Bundle B” from the Respondent.
3. Receipt of Closing arguments: 27 August 2021 (written submissions)
4. The hearing was digitally recorded.
BACKGROUND
5. The Applicants’ were employed as Lecturers between city Campus Northern Cape Urban TVET College and Phatsimang College, in Kimberley. The Applicants’ were employed on a two year fixed term contract from, 4 February 2019 up until 31 December 2020. The Applicants’ let evidence through a number of Department of Higher Education and Training (DHET) circulars and settlement agreement between NEHAWU and General Public Service Sector Bargaining Council (GPSSBC), which they believe prohibited the fixed term contract coming to an end. The Respondent NCUTVET College argued that they were primary employer, and the circulars were just directive and had no legal binding to the college. A pre-arbitration agreement was concluded prior to the commencement of the hearing, and signed by both parties.
Issue to be decided:
6. I must decide whether the Respondent created a reasonable expectation that the Applicants’ be retained or be made permanent.
7. Whether the circulars let as evidence have a binding legal effect to the College.
SURVEY OF EVIDENCE
Applicants’ Case
8. The Applicants’ were represented by Mr. M Mguye, from NEHAWU, who led the evidence through Mr Maharaj, who testified under oath. Mr Maharaj testified that circular no. 30 of 2020 gave clear instruction to all colleges that no TVET Colleges was to appoint or terminate employees before the Post Provisioning Norm (PPN) and Ministerial program is finalised. He further testified that the DHET created reasonable expectation through the circulars that no contracts will be terminated. He further argued that the DHET issued another Circular no. 40 of 2020 which gave clarity on circular no. 20 of 2020. Mr Maharaj further averred that circular 40 of 2020 was instructing all colleges to ring-fenced all positions, meaning they must be protected from being terminated. This meant all ministerial positions and post level 1 was to remain until the PPN model is completed. He stated that the Applicants’ were given letters on, 24 August 2020 that their contracts were ending. He further believed that the PPN process was going secure him a permanent employment as promised by the principal. He thus concluded that ending of their employment contracts constituted a dismissal.
9. During cross examination, Mr Maharaj confirmed that the primary employer was Department of High Education and Training. Although conceded that they were interviewed by NCUTVET College and they signed the employment contracts with college. He agreed that they concluded fixed term contracts which had a start date and date of expiry. He further stated that the college is not independent of DHET. He argued that the principal created a reasonable expectation when he told him that they would be made permanent. He stated that he moved to Kimberley from a permanent job with believe that this job was going to be made permanent.
Respondent’s Case
10. The Respondent’s Mr Malebo Rampororo, led evidence through Ms. E Mokokong, who testified under oath. She testified that the Applicants’ were made aware in their interviews that the posts were fixed term contract. She stated that the fixed term contract was for duration of two years with the start date, February 2019 until December 2020. She confirmed that the Applicants’ entered into employment contracts with NCU TVET College, and no reasonable expectation was created by the college. She further averred that the posts at the college were dependent on the number of enrollment of students. She argued that the lecturers could not be kept as the reason was based on operations of the college. She stated that all Applicants’ were given letters of notice on, 24 August 2020 that contracts were ending. She confirmed that all circulars that were issued were not one size fits all, that it was not practical possible to apply the circulars willy-nilly. She argued that keeping all lectures at the college was going to have serious budget constrain. She argued that the Applicants’ posts were not classified critical as per PPN model. She further stated that the circulars were guidelines, and that the college was to carefully apply them as per the guidelines. She argued that NCUTVET College as a primary employer never created any reasonable expectation, and that the Applicants’ case relied on the DHET circulars.
11. During cross examination, the witness testified that NCU TVET College was a primary employer of the Applicants’. She stated that all Applicants’ signed fixed term contract with start and end date with NCTVET College. She further stated that college interviewed all Applicants and they were all informed that all posts were fixed term contracts. The NCU TVET College as a primary employer never made any promises. She further made remarks that the college was not a member of TVET Colleges Governor’s Councils. She argued that the posts advertised and filled by the college were of natural attrition. She testified that she could not interpret circulars even though she was employed by DHET. Her final argument was that DHET as the authors of the circulars would have been better placed to contextualise the circulars.
ANALYSIS OF EVIDENCE AND ARGUMENT
SUBSTANTIVE FAIRNESS OF THE DISMISSAL
12. Section 138(7) of the LRA requires that I submit an arbitration award with brief reasons. I have taken into account all the relevant evidence and arguments, but will only refer to those evidence and arguments necessary to substantiate my award.
13. The onus is on the Applicants’ to prove that they had a reasonable expectation and that they will be retained indefinite. Based on the evidence let, it was common cause that the Applicants’ were interviewed by NCU TVET College. That the fixed term contract started in 04 February 2019 to 31 December 2020 was for a period of two years. The Applicants’ signed the contracts with NCU TVET College. That their salaries were paid by the college which the Respondent argued made them the primary employer. The Applicants’ conceded to have received letters of notice on, 24 August 2020 that their contracts were ending. Mafihla v Govan Mbeki Municipality {2005} 26 ILJ 257 [LC] held that the Respondent was within his rights not to renew Fixed-Term and/or maximum duration contracts entered with Applicant’s based on operational response.
14. Page 1 of the Respondent Bundle, the Applicants’ employment contracts, clearly stipulates that by signing this contract with no expectation permanent appoint must be expected, secondly it’s the duration of two years from February 2019 to December 2020, lastly that the contract is entered into with NCUTVET College.
15. Ordinarily the repeat of renewal of contracts of employment would validate the Applicant’s expectation of permanent employment, which is not the case.
16. Section 23 of the Constitution of the Republic of South Africa, provides for fair labour practices.
17. The Labour Relations Act no. 66 of 1999 as amended gives effect to the Constitutional imperative of fair labour practices. The imperativeness is further supported by the Public Service Administration Act which gives effect to the terms and conditions of Employment.
18. Section 186(1)(b)(ii) of the LRA, which states:
“(b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer-
…to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.” (my emphasis)
19. In Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC) the court held that in the case where the end of an agreed fixed term is defined by the occurrence of a particular event, there is no dismissal.
20. The courts adopted the approach in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733(LC) where the court held that the fixed term contract terminates by operation of law. Such termination does not constitute dismissal. The Applicants’ contracts do provide for termination by an operation of law. Therefore it does not constitute a dismissal.
21. Sections 210 of the LRA resolves any conflicting laws arising out of the LRA and any law, and provides that where a conflict arises between the LRA and any other Law, the provisions of the LRA will apply unless the other law expressly amends the LRA. It is in my opinion that the DHET circulars HR no.30 of 2020, no. 40 of 2020, no.2 of 2021, TVETCGC circular 1 of 2021, PPN for TVET College Policy, PPN implementation Management, Employers Ministerial program, from DHET including settlement agreement entered into between NEHAWU and GPSSBC does not amend the LRA.
22. Our Courts have held that the test for a reasonable expectation is two-fold; the first being, whether the employee expected the contract to be renewed; and the second being, whether the expectation was reasonable. See University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), and MEC for the Department of Finance, Eastern Cape v De Milander and others [2011] 9 BLLR 893 (LC).
23. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354, it was held that the second part of the test for reasonable expectation, is whether the subjective expectation, objectively assessed is considered reasonable. Apart from the subjective perception, 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 stipulations.
24. The courts identified a number of factors, which may influence such finding, namely, but not limited to
i. Agreements
ii. Undertaking by the employer
iii. Custom or practice in regard to renewal
iv. Availability of posts
v. The purpose and conclusion of the fixed term contract
vi. Inconsistent conduct
vii. Failure to give reasonable notice
viii. The nature of the business
25. The Applicants’ has merely relied on the circulars from DHET not withstanding that they were employed on a fixed term contract by NCU TVET College. There was no undertaking made by the primary employer NCU TVET College. It is not before me that the positions were available. Seemingly the purpose of the Respondent was to meet their obligation to the programme. There is no evidence that the Respondent acted inconsistently. The Respondent has given sufficient notice to the Applicants’. The nature of the business of the Respondent is to serve the people of Republic through education and is not a profit making entity.
26. For the above brief reasons, the application must fail.
Finding
27. Based on the above, the finding is that the Applicants did not have a reasonable expectation that their fixed term contract would be renewed or be retained indefinite, and the non-renewal of his contract does not constitute a dismissal in terms of section 186(1)(b)(i) of the LRA.
Award
28. The Applicants have not shown that they had been a dismissal in terms of section 186(1)(b)(i) of the Labour Relations Act. They are not entitled to any relief.
Thabo Maruping
ELRC Arbitrator
ELRC 302 -20 /21 NW
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