ELRC644-20/21 EC
Text
ELRC283-21/22FS
Award Date:
09 November 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC283-21/22FS
In the matter between
SAOU obo MA Seutloali Applicant
and
Department of Education: Free State Respondent
ARBITRATOR: AW Howden
HEARD: 29 October 2021
DATE OF AWARD: 09 November 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 191 (1) [191 (5) (a)] – alleged unfair dismissal.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (As amended). The Virtual Arbitration hearing was held on 29 October 2021 via Zoom.
2. The Applicant, Ms MA Seutloali - Persal Number 11431075, was present and was represented by Ms H Human from the Suid Afrikaanse Onderwys Unie (SAOU).
3. The Respondent, Department of Education – Free State, was represented by Mr V Gubuza from the Labour Relations Department.
ISSUES IN DISPUTE
4. This matter came before the Council in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the dismissal of the Applicant was substantively and procedurally fair.
BACKGROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent on a Fixed Term Contract from 1 January 2021 to 30 June 2021.
6. The Applicant received a letter from the Respondent on 19 May 2021 terminating her services on 31 May 2021.
7. The Applicant seeks compensation.
8. The Applicant submitted a bundle of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
SURVEY OF EVIDENCE AND ARGUMENT
9. It is common cause between the parties:
- That the Applicant was employed by the Respondent on a number of fixed term contracts, prior to the last fixed term contract, at Reatlehile Secondary School.
- That the Applicant was given a fixed term contract from 1 January 2021 to 30 June 2021.
- That these appointments were made with the understanding that the Applicant was appointed against promotion posts that were to be filled and that there would be no expectation of permanent employment.
- That the Applicant’s contract/services were terminated by the Respondent on 31 May 2021 after a letter was issued to the Applicant on 19 May 2021.
- That the Applicant was able to gain employment at another school from 15 June 2021.
- That the Applicant’s salary at the time of termination was R45 044.50 per month.
10. The issues in dispute are the substantive as well as the procedural fairness of the dismissal.
The Applicant’s Submissions
11. The Applicant’s Representative stated that the Applicant’s services were not terminated for misconduct or incapacity.
12. The Applicant’s Representative further stated that the Respondent had terminated the Applicant’s fixed term contract prematurely and the Applicant needed to be compensated accordingly.
The Respondent’s Submissions
13. The Respondent’s Representative indirectly conceded that the Respondent had acted unfairly and that the Respondent would have to implement different measures going forward to ensure that the Respondent operated within the framework prescribed.
14. The Respondent’s Representative further conceded that the Applicant was entitled to the appropriate compensation.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. It is common cause between the parties that the Applicant was on a fixed term contract for the period 1 January 2021 to 30 June 2021.
16. It is further common cause that the Applicant’s services were terminated on 31 May 2021 and that the Applicant was not dismissed for misconduct or incapacity.
17. In Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC) the Labour Appeal Court held that when parties enter into a fixed-term contract they bound themselves for a specific period and no party can escape its obligation under the terms of the contract unless there is a material breach. If an Employer has taken the risk by offering a fixed-term contract rather than a contract for an indefinite period, he cannot later complain. The Court held further that when compensation is calculated consideration should be *given to the loss of income the Employee will suffer as a result of the early termination. (*Emphasis added).
18. In PSA obo Mbiza v Office of the Presidency and others (JR 1567/10) [2013] ZALCJHB 324; [2014] 3 BLLR 275 (LC); (2014) 35 ILJ 1628 (LC) (handed down on 27 November 2013) the Labour Court held that the early termination of the Employee’s fixed-term contract was unfair and awarded the Employee compensation for the substantive and procedural unfair dismissal.
19. Taking all the above into account, the submissions of the parties and based on the balance of probability, it is my finding that the Respondent had dismissed the Applicant by terminating her services on 31 May 2021. It is further my finding that the Respondent has failed to prove that the dismissal of the Applicant was substantively and procedurally fair.
20. Looking at compensation. I have taken the period left on the Applicant’s fixed term contract namely 1 June 2021 to 30 June 2021 into account, as well as the fact that the Applicant has been appointed on another fixed term contract from 15 June 2021 and believe the compensation as set out below would be appropriate.
21. The Applicant, under normal circumstances, would have received a full month’s salary for June 2021, namely R45 044.50. The Applicant however has been appointed by the Respondent on another fixed term contract at a lower salary scale.
22. Due to the Applicant for the period 1 June 2021 to 14 June 2021:
Monthly salary R45 044.50 ÷ 4.33 = R10 402.88 per week ÷ 5 day work week = R2 080.58 per day.
R2 080.58 per day X 10 working days = R20 805.77
23. Due to the Applicant for the period 15 June 2021 to 30 June 2021:
Monthly salary R45 044.50 ÷ 4.33 = R10 402.88 per week ÷ 5 day work week = R2 080.58 per day.
R2 080.58 per day X 12 working days = R24 966.93
Less the amount already paid under the new appointment
Monthly salary R24 043.75 ÷ 4.33 = R5 552.83 per week ÷ 5 day work week = R1 110.56 per day.
1 110.56 per day X 12 working days = R13 326.79
R24 966.96 less R13 326.79 = R11 640.17
Total due to the Applicant: R20 805.77 for the period 1 June 2021 to 14 June 2021 plus R11 640.17 for the period 15 June 2021 to 30 June 2021 = R32 445.94
AWARD
24. The Respondent, Department of Education – Free State, has failed to prove that the dismissal of the Applicant, MA Seutloali - Persal Number 11431075, was substantively and procedurally fair.
25. The Respondent, Department of Education – Free State, is hereby instructed to pay the Applicant, MA Seutloali - Persal Number 11431075, the amount of R32 445.94 (Thirty Two Thousand Four Hundred and Forty Five Rand and Ninety Four Cents), as set out in paragraphs (22) and (23) above, less PAYE.
26. The payment mentioned in paragraph (25) above by the Respondent, Department of Education – Free State, to the Applicant, , MA Seutloali - Persal Number 11431075, must be done by no later than 30 November 2021.
Panellist: AW Howden
ELRC
Case No ELRC283-21/22FS
In the matter between
SAOU obo MA Seutloali Applicant
and
Department of Education: Free State Respondent
ARBITRATOR: AW Howden
HEARD: 29 October 2021
DATE OF AWARD: 09 November 2021
SUMMARY: Labour Relations Act 66 of 1995 (the LRA) – Section 191 (1) [191 (5) (a)] – alleged unfair dismissal.
ARBITRATION AWARD
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 17 of the ELRC Constitution: Dispute Resolution Procedures: Annexure C (As amended). The Virtual Arbitration hearing was held on 29 October 2021 via Zoom.
2. The Applicant, Ms MA Seutloali - Persal Number 11431075, was present and was represented by Ms H Human from the Suid Afrikaanse Onderwys Unie (SAOU).
3. The Respondent, Department of Education – Free State, was represented by Mr V Gubuza from the Labour Relations Department.
ISSUES IN DISPUTE
4. This matter came before the Council in terms of Section 191 (1) [191 (5) (a)] of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the dismissal of the Applicant was substantively and procedurally fair.
BACKGROUND TO THE DISPUTE
5. The Applicant was employed by the Respondent on a Fixed Term Contract from 1 January 2021 to 30 June 2021.
6. The Applicant received a letter from the Respondent on 19 May 2021 terminating her services on 31 May 2021.
7. The Applicant seeks compensation.
8. The Applicant submitted a bundle of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
SURVEY OF EVIDENCE AND ARGUMENT
9. It is common cause between the parties:
- That the Applicant was employed by the Respondent on a number of fixed term contracts, prior to the last fixed term contract, at Reatlehile Secondary School.
- That the Applicant was given a fixed term contract from 1 January 2021 to 30 June 2021.
- That these appointments were made with the understanding that the Applicant was appointed against promotion posts that were to be filled and that there would be no expectation of permanent employment.
- That the Applicant’s contract/services were terminated by the Respondent on 31 May 2021 after a letter was issued to the Applicant on 19 May 2021.
- That the Applicant was able to gain employment at another school from 15 June 2021.
- That the Applicant’s salary at the time of termination was R45 044.50 per month.
10. The issues in dispute are the substantive as well as the procedural fairness of the dismissal.
The Applicant’s Submissions
11. The Applicant’s Representative stated that the Applicant’s services were not terminated for misconduct or incapacity.
12. The Applicant’s Representative further stated that the Respondent had terminated the Applicant’s fixed term contract prematurely and the Applicant needed to be compensated accordingly.
The Respondent’s Submissions
13. The Respondent’s Representative indirectly conceded that the Respondent had acted unfairly and that the Respondent would have to implement different measures going forward to ensure that the Respondent operated within the framework prescribed.
14. The Respondent’s Representative further conceded that the Applicant was entitled to the appropriate compensation.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
15. It is common cause between the parties that the Applicant was on a fixed term contract for the period 1 January 2021 to 30 June 2021.
16. It is further common cause that the Applicant’s services were terminated on 31 May 2021 and that the Applicant was not dismissed for misconduct or incapacity.
17. In Buthelezi v Municipal Demarcation Board (2004) 25 ILJ 2317 (LAC) the Labour Appeal Court held that when parties enter into a fixed-term contract they bound themselves for a specific period and no party can escape its obligation under the terms of the contract unless there is a material breach. If an Employer has taken the risk by offering a fixed-term contract rather than a contract for an indefinite period, he cannot later complain. The Court held further that when compensation is calculated consideration should be *given to the loss of income the Employee will suffer as a result of the early termination. (*Emphasis added).
18. In PSA obo Mbiza v Office of the Presidency and others (JR 1567/10) [2013] ZALCJHB 324; [2014] 3 BLLR 275 (LC); (2014) 35 ILJ 1628 (LC) (handed down on 27 November 2013) the Labour Court held that the early termination of the Employee’s fixed-term contract was unfair and awarded the Employee compensation for the substantive and procedural unfair dismissal.
19. Taking all the above into account, the submissions of the parties and based on the balance of probability, it is my finding that the Respondent had dismissed the Applicant by terminating her services on 31 May 2021. It is further my finding that the Respondent has failed to prove that the dismissal of the Applicant was substantively and procedurally fair.
20. Looking at compensation. I have taken the period left on the Applicant’s fixed term contract namely 1 June 2021 to 30 June 2021 into account, as well as the fact that the Applicant has been appointed on another fixed term contract from 15 June 2021 and believe the compensation as set out below would be appropriate.
21. The Applicant, under normal circumstances, would have received a full month’s salary for June 2021, namely R45 044.50. The Applicant however has been appointed by the Respondent on another fixed term contract at a lower salary scale.
22. Due to the Applicant for the period 1 June 2021 to 14 June 2021:
Monthly salary R45 044.50 ÷ 4.33 = R10 402.88 per week ÷ 5 day work week = R2 080.58 per day.
R2 080.58 per day X 10 working days = R20 805.77
23. Due to the Applicant for the period 15 June 2021 to 30 June 2021:
Monthly salary R45 044.50 ÷ 4.33 = R10 402.88 per week ÷ 5 day work week = R2 080.58 per day.
R2 080.58 per day X 12 working days = R24 966.93
Less the amount already paid under the new appointment
Monthly salary R24 043.75 ÷ 4.33 = R5 552.83 per week ÷ 5 day work week = R1 110.56 per day.
1 110.56 per day X 12 working days = R13 326.79
R24 966.96 less R13 326.79 = R11 640.17
Total due to the Applicant: R20 805.77 for the period 1 June 2021 to 14 June 2021 plus R11 640.17 for the period 15 June 2021 to 30 June 2021 = R32 445.94
AWARD
24. The Respondent, Department of Education – Free State, has failed to prove that the dismissal of the Applicant, MA Seutloali - Persal Number 11431075, was substantively and procedurally fair.
25. The Respondent, Department of Education – Free State, is hereby instructed to pay the Applicant, MA Seutloali - Persal Number 11431075, the amount of R32 445.94 (Thirty Two Thousand Four Hundred and Forty Five Rand and Ninety Four Cents), as set out in paragraphs (22) and (23) above, less PAYE.
26. The payment mentioned in paragraph (25) above by the Respondent, Department of Education – Free State, to the Applicant, , MA Seutloali - Persal Number 11431075, must be done by no later than 30 November 2021.
Panellist: AW Howden
ELRC