ELRC770-20/21LP
Award Date:
02 September 2021
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Commissioner: P Shai
Case No.: ELRC770-20/21LP
Date of Award: 02 SEPT 2021
In the ARBITRATION between:
MR MORWAMOKGATLA JOHANNES MADUTLELA
Represented by Mr Thobja Munyai, SADTU official
And
Department of Education Limpopo
Represented by Mr Makgoba Matlou, ER specialist
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the 20th August 2021 via online media.
2. Both parties were present. Mr Thobja Munyai, SADTU official acted on behalf of the employee, Mr Morwamokgatla Johannes Madutlela whereas, Mr Makgoba Matlou, ER specialist acted for the employer, Department of Education: Limpopo .
3. The proceedings were recorded digitally. At the end of the proceedings, both parties submitted written closing arguments, which were considered herein.
ISSUE TO BE DECIDED
4. I am called upon, to determine whether the employee was dismissed or not. If I find that he was dismissed, I will determine further if, it was effected with valid reason and fair procedure. In the event I find that he was unfairly dismissed, I will further determine an appropriate relief for him.
BACKGROUND TO THE ISSUE
5. The matter involves Section 186(1) (b) of the Labour Relations Act 66 of 2021 – reasonable expectation of a renewal of a contract of employment. The employee was employed on a substitute post against promotional post with effect from 2018, renewed from January 2019 to December 2019. The contract was extended again in January 2020 to December 2020. The said contract was supposed to have been extended from January 2021 or until the filling of the position, whichever came first. It was not renewed at the beginning of 2021 as expected.
6. Mr Matlou, in his opening confirmed the above position, however contended that the contract came to an end as agreed. The end of the contract was clear in the contract; there was therefore no dismissal.
SURVEY OF EVIDENCE FOR THE EMPLOYEE:
MR MORWAMOKGATLA JOHANNES MADUTLELA TESTIFIED ON HIS OWN BEHALF UNDER OATH AS FOLLOWS:
7. He was employed in 2018 as a temporary educator of the Malokaneng Primary School. It was a substitute against a promotional Principal position. His contract stated that he would remain in the post until expiry of the contract or until the position is filled, whichever came first.
8. In 2018, the position was not filled and his contract was extended from January 2019 to December 2019. The conditions remained the same. His contract was extended from January 2020 – December 2020. Sometime in December 2020, he was asked to complete the extension form, which he did. He expected the contract to be extended from the 1st of January 2021 till 1st March 2021 when the position was filled. This did not happen and no reasons were given to him. He expected an extension of two (2) months.
9. Page 17 of the employee bundle contains his letter of appointment.
10. The HOD issued a directive that created an expectation that his contract will be extended from January and February 2021, his position was still available.
HE TESTIFIED AS FOLLOWS UNDER CROSS EXAMINATION:
11. He conceded that in 2020 post no 20 was at the school.
12. Page 17 of the employee bundle contains a request to engage educators in substitute’s posts. The remarks are as follows:
Extension of contract against promotional post
Comments contained therein are as follows:
“Extension of contract i.r.o Madutlela MJ. As indicated above is recommended for approval. The incumbent in the post (Mamphekwa M.I will be acting as principal for other period”.
13. Page 15 is his appointment as a substitute teacher and paragraph 1.5 thereof reads as follows: “ Nature of the appointment: Temporary with effect from 1st January 2020 until the 31st December 2020 or when the post is permanently filled, whichever comes first. Paragraph 3 of the same letter states that: “ this letter serves as a notice of service termination as indicated in paragraph 1.5”
14. Having read the above paragraphs, he conceded that the employer complied with its side of the bargain.
15. When asked what the basis of his complaint is, he said there was a directive from Head of Department which instructed the functionaries to extend all contracts of temporary teachers on promotional posts, same to be extended from January 2021 to December 2021 or until the filling if the post, whichever comes first. The directive is contained at page 11 of the employee bundle. Paragraph 3 thereof allowed no deviations. His position was still available from the 1st January 2021 to February 2021. He should have assumed duties from the 1st January 2021 to the 31st December 2021 or until the position is filled. The employer allowed him to complete extension forms.
16. He however, admitted there is nowhere in the contract, which says it will be extended or renewed.
17. At the said school, he was substituting Mr Mathekgane who had gone on retirement.
18. In 2020, Mrs. Ramahuta was acting as a principal. When shown documents he conceded that Mr Mamphekgo was occupying post 20 in 2019. In 2020, Mr Mamphekgo was acting as principal and occupied the post of a retired principal. He further conceded that if a permanent principal is appointed, Mr Mamphekwa would return to his post no 20 and that the contract of a substitute teacher would be terminated. He conceded further that his application for renewal of contract was not approved.
19. When it was put to him that the school opened in February 2021, he said he has no comment. He accepted that the new principal reported on the 1st March 2021.
SURVEY OF EVIDENCE FOR THE EMPLOYER
MS MACHUENE CECILIA LEDWABA TESTIFIED UNDER OATH AS FOLLOWS
20. She is an acting deputy manager corporate service at the employer. The department since 1989 has employed her.
21. A vacant post refers to a post that is not filled by anybody. Substitute appointment refers to an appointment substituting someone who is on leave, acting in another position etc. An appointment against promotional post refers to a situation where an educator is appointed on a post occupied by someone appointed in an acting on a higher post. Page 22 is an appointment letter of the employee. In terms of the letter, he occupied post 20 in 2020. According to the memo at page 19, he was substituting Mr Mamphekwa who was acting as the principal. He is therefore in line with page 22 of the employer bundle, a substitute appointment.
22. According to page 22, the employee was appointed with effect from the 1st March 2020 to 31 December 2020 or when the post is permanently filled, whichever comes first. In this case when someone else fills the position of principal, Mr Mamphekwa will return to his post no 20 and the employee will be terminated.
23. The reason why the employee did not return to work in January was that they had received a directive that the principals must be appointed with effect of 1st January 2021, and due to Covid– 19 pandemic it was moved to 1st February 2021. There was no way his contract could have been extended for that reason. The principal of Malokela reporting on the 1st March 2021.
24. The employee was not appointed on a promotional post but was substituting Mr Mamphekwa who was acting as a principal.
25. According to the letter at page 22 paragraph 8, the employee knew that his contract would end on the 31st December 2020.
UNDER CROSS EXAMINATION SHE TESTIFIED AS FOLLOWS:
26. The employee was appointed on a substitute post but not on a vacant promotional post. According to page 19 of the employer’s bundle, the employee was recommended for a substitute post. She however accepted that the employee was appointed against a promotional post when shown the remarks contained in page 19 of the employer’s bundle. Thus, he was placed in a promotional post that was not vacant.
27. She confirmed that the reason why he did not come back to work was that his contract had ended. There was also a management plan, which indicated that the principal would be appointed with effect from the 1st January 2021. It is contained in circular 183 and is at page 11 of the employer’s bundle.
28. She conceded that the directive contained at page 28 of the employee’s bundle relating to extension contracts of temporary teachers allowed for no deviations.
29. She conceded that the position of the principal was filled on the 1st March 2021. There was no one who substituted Mr Mampheko. When asked whether this did not amount to a deviation she denied, saying that the employee was not occupying a vacant post. The position of Mr Mampheko was not vacant but you can appoint someone in that post if that person is appointed in another higher position or is on leave etc. Further that, the employer would not have acted against the management plan. She admitted that they did not comply with the said circular. The circular did not apply to the employee.
30. Under re –examination she insisted that the employee was not appointed into a promotional post but a substitute post of Mr Mampheko.
ANALYSIS OF EVIDENCE AND ARGUMENTS
31. Dismissal is in dispute herein, hence the employee bears the onus to prove the fact of that dismissal. Once he succeeds in this regard, the onus reverts to the employer to prove on a balance of probabilities that the dismissal was fair both substantively and procedurally as the case may be.
32. The employee testified that he was dismissed within the meaning of section 186(1) (b) of the LRA 66 of 1995 in that the employer created legitimate expectation that his contract will be extended and it was not so extended.
33. It is common cause that the employee was appointed on a substitute post against a promotional post with effect from 2018, renewed from January 2019 to 31st December 2019. The contract was extended again in January 2020 to December 2020. According to the employee, the contract was supposed to have been extended in January 2021 to December 2021 or until the filling of the position, whichever came first. It was not renewed at the beginning of 2021 as he expected.
34. The employee testified that towards the end of December 2020, he was asked to complete an application for extension, which he did but nothing came out of it.
35. Further that, the HOD issued a letter directing functionaries to extend the contracts of amongst others temporary educators against promotional post. The directive allowed no deviation.
36. The employer on the other hand led evidence that employment contract of the employee ended on the 31st December 2020. The employer contended that on the same day the above directive was issued, being the 7th December 2020, there was also issuance of circular 183 titled directives for management of HRM matters (School-based EEA) in preparation for the reopening of schools in January 2021.
37. It appears that the latter circular sought to implement the earlier one. Paragraph 5 thereof provides that contracts of employment for temporary educators appointed against vacant promotional post must be extended from the 1st January 2021 or until the post is filled. According to the evidence, the employee was not occupying a vacant promotional post because he was occupying post number 20, which belonged to Mr Mamphekwa who was acting as a principal who was on retirement. The employee conceded that indeed, he was occupying the above post and it meant that when someone else fills the post of the principal, Mr Mampheko would return to his post and his contract would then end.
38. The employer led evidence that there was no way the employee’s contract could be extended because the employer issued a circular 183 which indicate that the principals would be appointed with effect from the 1st January 2021. There was also an amendment of this plan due to Covid – 19, in terms of which the period was extended to the 1st February 2021. This deadline was not met due to Covid -19 pandemic and the principal reported on the 1st March 2021 instead. The applicant did not contest this. I accept the position as such.
39. Did the circular 183 of 2020 apply to the employee? This circular provided for the issuance of directives in relation to the appointment of the temporary educators against promotional post. The above circular was issued together with directives for management of HRM matters (School –Based EEA) in preparation for reopening of schools in January 2021, “the plan” which must be read together as they one document. Paragraph 5 provides that the contracts of temporary educators appointed against a vacant promotional post must be extended from the 1st January 2021 to the 31st December 2021 or until the post is permanently filled, whichever came first. Was the employee occupying a vacant promotional post? The employee conceded that he was occupying the post of Mr Mampheko who acted as a principal. This post, no 20 was not vacant because it had holder who was appointed into a vacant post of a principal on a temporary basis. I conclude that the employee did not occupy a vacant promotional post and hence the circular 183 did not apply to him. Did the employer create a legitimate expectation on the extension of the contract of the employee? I do not think so. The reason is that the employer issued a management plan, which directed the principals that would be appointed with effect from the 1st January 2021. Functionaries had to comply with this directive. Had it been implemented, as indicated we would not be here today. Owing to covid-19 pandemic, we are here. Must the employer due to an emergency, disabling it to comply with its well-arranged plans, be taken to have created legitimate expectation? I do not think so. The employee was aware of the period that his contract would end. He was aware of the intended filling of the posts of principals from 1st January 2021. It cannot be that due to failings arising out of an emergency as alluded above, the employer be held to ransom by that emergency.
40. I therefore conclude that the employer did not create legitimate expectation on the part of the employee.
AWARD
41. I find that the employee was not dismissed, his contract ended by effluxion of time.
42. The employee’s referral is dismissed.
Commissioner Piet Shai
Case No.: ELRC770-20/21LP
Date of Award: 02 SEPT 2021
In the ARBITRATION between:
MR MORWAMOKGATLA JOHANNES MADUTLELA
Represented by Mr Thobja Munyai, SADTU official
And
Department of Education Limpopo
Represented by Mr Makgoba Matlou, ER specialist
DETAILS OF HEARING AND REPRESENTATION
1. The matter was heard on the 20th August 2021 via online media.
2. Both parties were present. Mr Thobja Munyai, SADTU official acted on behalf of the employee, Mr Morwamokgatla Johannes Madutlela whereas, Mr Makgoba Matlou, ER specialist acted for the employer, Department of Education: Limpopo .
3. The proceedings were recorded digitally. At the end of the proceedings, both parties submitted written closing arguments, which were considered herein.
ISSUE TO BE DECIDED
4. I am called upon, to determine whether the employee was dismissed or not. If I find that he was dismissed, I will determine further if, it was effected with valid reason and fair procedure. In the event I find that he was unfairly dismissed, I will further determine an appropriate relief for him.
BACKGROUND TO THE ISSUE
5. The matter involves Section 186(1) (b) of the Labour Relations Act 66 of 2021 – reasonable expectation of a renewal of a contract of employment. The employee was employed on a substitute post against promotional post with effect from 2018, renewed from January 2019 to December 2019. The contract was extended again in January 2020 to December 2020. The said contract was supposed to have been extended from January 2021 or until the filling of the position, whichever came first. It was not renewed at the beginning of 2021 as expected.
6. Mr Matlou, in his opening confirmed the above position, however contended that the contract came to an end as agreed. The end of the contract was clear in the contract; there was therefore no dismissal.
SURVEY OF EVIDENCE FOR THE EMPLOYEE:
MR MORWAMOKGATLA JOHANNES MADUTLELA TESTIFIED ON HIS OWN BEHALF UNDER OATH AS FOLLOWS:
7. He was employed in 2018 as a temporary educator of the Malokaneng Primary School. It was a substitute against a promotional Principal position. His contract stated that he would remain in the post until expiry of the contract or until the position is filled, whichever came first.
8. In 2018, the position was not filled and his contract was extended from January 2019 to December 2019. The conditions remained the same. His contract was extended from January 2020 – December 2020. Sometime in December 2020, he was asked to complete the extension form, which he did. He expected the contract to be extended from the 1st of January 2021 till 1st March 2021 when the position was filled. This did not happen and no reasons were given to him. He expected an extension of two (2) months.
9. Page 17 of the employee bundle contains his letter of appointment.
10. The HOD issued a directive that created an expectation that his contract will be extended from January and February 2021, his position was still available.
HE TESTIFIED AS FOLLOWS UNDER CROSS EXAMINATION:
11. He conceded that in 2020 post no 20 was at the school.
12. Page 17 of the employee bundle contains a request to engage educators in substitute’s posts. The remarks are as follows:
Extension of contract against promotional post
Comments contained therein are as follows:
“Extension of contract i.r.o Madutlela MJ. As indicated above is recommended for approval. The incumbent in the post (Mamphekwa M.I will be acting as principal for other period”.
13. Page 15 is his appointment as a substitute teacher and paragraph 1.5 thereof reads as follows: “ Nature of the appointment: Temporary with effect from 1st January 2020 until the 31st December 2020 or when the post is permanently filled, whichever comes first. Paragraph 3 of the same letter states that: “ this letter serves as a notice of service termination as indicated in paragraph 1.5”
14. Having read the above paragraphs, he conceded that the employer complied with its side of the bargain.
15. When asked what the basis of his complaint is, he said there was a directive from Head of Department which instructed the functionaries to extend all contracts of temporary teachers on promotional posts, same to be extended from January 2021 to December 2021 or until the filling if the post, whichever comes first. The directive is contained at page 11 of the employee bundle. Paragraph 3 thereof allowed no deviations. His position was still available from the 1st January 2021 to February 2021. He should have assumed duties from the 1st January 2021 to the 31st December 2021 or until the position is filled. The employer allowed him to complete extension forms.
16. He however, admitted there is nowhere in the contract, which says it will be extended or renewed.
17. At the said school, he was substituting Mr Mathekgane who had gone on retirement.
18. In 2020, Mrs. Ramahuta was acting as a principal. When shown documents he conceded that Mr Mamphekgo was occupying post 20 in 2019. In 2020, Mr Mamphekgo was acting as principal and occupied the post of a retired principal. He further conceded that if a permanent principal is appointed, Mr Mamphekwa would return to his post no 20 and that the contract of a substitute teacher would be terminated. He conceded further that his application for renewal of contract was not approved.
19. When it was put to him that the school opened in February 2021, he said he has no comment. He accepted that the new principal reported on the 1st March 2021.
SURVEY OF EVIDENCE FOR THE EMPLOYER
MS MACHUENE CECILIA LEDWABA TESTIFIED UNDER OATH AS FOLLOWS
20. She is an acting deputy manager corporate service at the employer. The department since 1989 has employed her.
21. A vacant post refers to a post that is not filled by anybody. Substitute appointment refers to an appointment substituting someone who is on leave, acting in another position etc. An appointment against promotional post refers to a situation where an educator is appointed on a post occupied by someone appointed in an acting on a higher post. Page 22 is an appointment letter of the employee. In terms of the letter, he occupied post 20 in 2020. According to the memo at page 19, he was substituting Mr Mamphekwa who was acting as the principal. He is therefore in line with page 22 of the employer bundle, a substitute appointment.
22. According to page 22, the employee was appointed with effect from the 1st March 2020 to 31 December 2020 or when the post is permanently filled, whichever comes first. In this case when someone else fills the position of principal, Mr Mamphekwa will return to his post no 20 and the employee will be terminated.
23. The reason why the employee did not return to work in January was that they had received a directive that the principals must be appointed with effect of 1st January 2021, and due to Covid– 19 pandemic it was moved to 1st February 2021. There was no way his contract could have been extended for that reason. The principal of Malokela reporting on the 1st March 2021.
24. The employee was not appointed on a promotional post but was substituting Mr Mamphekwa who was acting as a principal.
25. According to the letter at page 22 paragraph 8, the employee knew that his contract would end on the 31st December 2020.
UNDER CROSS EXAMINATION SHE TESTIFIED AS FOLLOWS:
26. The employee was appointed on a substitute post but not on a vacant promotional post. According to page 19 of the employer’s bundle, the employee was recommended for a substitute post. She however accepted that the employee was appointed against a promotional post when shown the remarks contained in page 19 of the employer’s bundle. Thus, he was placed in a promotional post that was not vacant.
27. She confirmed that the reason why he did not come back to work was that his contract had ended. There was also a management plan, which indicated that the principal would be appointed with effect from the 1st January 2021. It is contained in circular 183 and is at page 11 of the employer’s bundle.
28. She conceded that the directive contained at page 28 of the employee’s bundle relating to extension contracts of temporary teachers allowed for no deviations.
29. She conceded that the position of the principal was filled on the 1st March 2021. There was no one who substituted Mr Mampheko. When asked whether this did not amount to a deviation she denied, saying that the employee was not occupying a vacant post. The position of Mr Mampheko was not vacant but you can appoint someone in that post if that person is appointed in another higher position or is on leave etc. Further that, the employer would not have acted against the management plan. She admitted that they did not comply with the said circular. The circular did not apply to the employee.
30. Under re –examination she insisted that the employee was not appointed into a promotional post but a substitute post of Mr Mampheko.
ANALYSIS OF EVIDENCE AND ARGUMENTS
31. Dismissal is in dispute herein, hence the employee bears the onus to prove the fact of that dismissal. Once he succeeds in this regard, the onus reverts to the employer to prove on a balance of probabilities that the dismissal was fair both substantively and procedurally as the case may be.
32. The employee testified that he was dismissed within the meaning of section 186(1) (b) of the LRA 66 of 1995 in that the employer created legitimate expectation that his contract will be extended and it was not so extended.
33. It is common cause that the employee was appointed on a substitute post against a promotional post with effect from 2018, renewed from January 2019 to 31st December 2019. The contract was extended again in January 2020 to December 2020. According to the employee, the contract was supposed to have been extended in January 2021 to December 2021 or until the filling of the position, whichever came first. It was not renewed at the beginning of 2021 as he expected.
34. The employee testified that towards the end of December 2020, he was asked to complete an application for extension, which he did but nothing came out of it.
35. Further that, the HOD issued a letter directing functionaries to extend the contracts of amongst others temporary educators against promotional post. The directive allowed no deviation.
36. The employer on the other hand led evidence that employment contract of the employee ended on the 31st December 2020. The employer contended that on the same day the above directive was issued, being the 7th December 2020, there was also issuance of circular 183 titled directives for management of HRM matters (School-based EEA) in preparation for the reopening of schools in January 2021.
37. It appears that the latter circular sought to implement the earlier one. Paragraph 5 thereof provides that contracts of employment for temporary educators appointed against vacant promotional post must be extended from the 1st January 2021 or until the post is filled. According to the evidence, the employee was not occupying a vacant promotional post because he was occupying post number 20, which belonged to Mr Mamphekwa who was acting as a principal who was on retirement. The employee conceded that indeed, he was occupying the above post and it meant that when someone else fills the post of the principal, Mr Mampheko would return to his post and his contract would then end.
38. The employer led evidence that there was no way the employee’s contract could be extended because the employer issued a circular 183 which indicate that the principals would be appointed with effect from the 1st January 2021. There was also an amendment of this plan due to Covid – 19, in terms of which the period was extended to the 1st February 2021. This deadline was not met due to Covid -19 pandemic and the principal reported on the 1st March 2021 instead. The applicant did not contest this. I accept the position as such.
39. Did the circular 183 of 2020 apply to the employee? This circular provided for the issuance of directives in relation to the appointment of the temporary educators against promotional post. The above circular was issued together with directives for management of HRM matters (School –Based EEA) in preparation for reopening of schools in January 2021, “the plan” which must be read together as they one document. Paragraph 5 provides that the contracts of temporary educators appointed against a vacant promotional post must be extended from the 1st January 2021 to the 31st December 2021 or until the post is permanently filled, whichever came first. Was the employee occupying a vacant promotional post? The employee conceded that he was occupying the post of Mr Mampheko who acted as a principal. This post, no 20 was not vacant because it had holder who was appointed into a vacant post of a principal on a temporary basis. I conclude that the employee did not occupy a vacant promotional post and hence the circular 183 did not apply to him. Did the employer create a legitimate expectation on the extension of the contract of the employee? I do not think so. The reason is that the employer issued a management plan, which directed the principals that would be appointed with effect from the 1st January 2021. Functionaries had to comply with this directive. Had it been implemented, as indicated we would not be here today. Owing to covid-19 pandemic, we are here. Must the employer due to an emergency, disabling it to comply with its well-arranged plans, be taken to have created legitimate expectation? I do not think so. The employee was aware of the period that his contract would end. He was aware of the intended filling of the posts of principals from 1st January 2021. It cannot be that due to failings arising out of an emergency as alluded above, the employer be held to ransom by that emergency.
40. I therefore conclude that the employer did not create legitimate expectation on the part of the employee.
AWARD
41. I find that the employee was not dismissed, his contract ended by effluxion of time.
42. The employee’s referral is dismissed.
Commissioner Piet Shai
ELRC 302 -20 /21 NW
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