ELRC644-20/21 EC
Text
ELRC304-21/22FS
Award Date:
16 November 2021
Panellist: Asnath Sedibane
Case No: ELRC304-21/22FS
Date of Award: 16 November 2021
In the ARBITRATION between:
SAOU obo PELSER, JACQUES
(Union / Applicant)
and
DEPARTMENT OF EDUCATION FREE STATE
(Respondent)
Union/Applicant’s representative: Ms Hester Human (SAOU Official)
Union/Applicant’s address: Telephone: 051 430 1531
Telefax:
Email: hesterh@saou.co.za
Respondent’s representative: Mr Thulo Tswinke
Respondent’s address: Department of Education Free State Province
Private Bag X20565
Bloemfontein
9300
Telephone: 051 4044 150
Telefax:
Email:
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Jacques Pelser, and the Department of Education, Free State Province was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration on 02 November 2021 in terms of section 186(1) (b) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The leading of oral evidence was finalized on the 2nd of November 2021 and it was agreed between the parties and the Panellist that the parties would submit their written closing arguments by no later than the 10th of November 2021. The proceedings were conducted in English and were manually and digitally recorded. Only the Applicant submitted written closing arguments on the 10th of November 2021.
3. The applicant was present and was represented by Ms Hester Human, an official of SAOU and the Respondent was represented by Mr Thulo Tswinke, an official of the Department of Education in the Free State Province.
4. The parties exchanged their bundles of documents which were also emailed to the Panellist. The Applicant’s bundle was marked bundle “A” and the Respondent’s bundle was marked bundle “R”.
PRELIMINARY ISSUES
5. No preliminary issues were raised by either of the parties.
ISSUES TO BE DECIDED
6. The dispute was referred to the ELRC by the applicant as an Alleged Unfair Dismissal in terms of section 186(1) (b) of the LRA.
7. I was required to determine whether the respondent unfairly dismissed the applicant when the applicant’s fixed term contract was not renewed after it expired on the 31st December 2020.
BACKGROUND TO THE DISPUTE
8. The applicant, Mr Pelser was employed as an educator on a 6 months fixed-term contract in a temporary level 1 educator post, at Koort Niemann Primary school in January 2018. This was subsequent to him having been appointed as a substitute educator at the same school in May 2017.
9. The fixed term contract was extended every year from July to December and was renewed in December every year until December 2020 when the contract was not renewed.
10. According to the applicant, he was given a new fixed-term contract in February 2021. This contract is less favorable to the applicant in that it is a temporary appointment in a promotional post as opposed to the vacant substantive post that the applicant had occupied in the previous fixed-term contract.
11. The respondent’s version is that the applicant’s position has not changed in that he is still working at the same school, in a temporary vacant post that can be filled at any time. The reason why the first fixed term contract ended and was not renewed was because the school had lost the post. The reason why the applicant was not converted to a permanent post, in terms of the ELRC Resolution 4 of 2018 was that he had a secondary school qualification whilst he occupied a post in a primary school. The applicant therefore had failed to meet the requirements for conversion hence he remained on a fixed-term contract.
12. To prove their respective cases, both parties led and oral evidence and also referred to documents.
13. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Only the applicant submitted their written heads of arguments. I have considered the oral and documentary evidence from both parties as well as the applicant’s written closing arguments in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Jacques Pelser, made an affirmation and testified that:
14. He is an educator employed at Koort Niemann Primary school since May 2017. He was initially employed as a replacement teacher and was since January 2018 employed on a fixed term contact in a vacant substantive post.
15. He was informed by the school principal that after 6 months, an application would be made to make his appointment permanent. He did not receive any communication in this regard but had assumed that he was now permanent.
16. He delivers a good quality of work and everybody is happy with his work. He serves on the school’s governing body and his moderations are very good. His file has been used as an example for other educators.
17. He only became aware that he was still on a fixed term contract and that it had been terminated, when he did not receive a salary in in January 2021. The school had to lend him some money during this period.
18. He reported the issue to his Union and the Union informed him that what they had found out was that he had resigned. This was not true since he had never tendered a resignation.
19. In February 2021, his salary resumed but was on a lower scale than it was in 2020.
20. He had a B-Tech in post school qualification. He had never been told by anyone that he was not qualified to teach at a primary school. Other teachers in the same school as him also have the same qualifications as him.
21. He was not aware of the ELRC Resolution 4 of 2018. He had heard of conversions but did not know that he had a role to play in that process. He is not asking for a conversion but that he be placed in a temporary substantive level 1 educator post.
22. At school level there is no difference between the post that he is currently occupying and the post he occupied in the previous fixed term contract in that he is still teaching the same subjects. The difference is that he is currently in a promotional post and if interviews are conducted next month, he would be out of the post whereas with a vacant substantive post there are chances of being appointed in another post should it be vacant and there must be notice if the temporary post is to be terminated.
23. He knows that in January 2018, an application for him to be made permanent was done. Whenever he inquired whether or not he was permanent he was always informed that the department is dealing with the issue. He had assumed that his post was permanent.
The applicant’s second witness, Ms Johanna Venter testified under oath that:
24. She is a full time shop steward at SAOU, a position she has held for the past 12 years. She works with the appointments of educators and salary related matters.
25. She was contacted by Mr Pelser in January because he did not receive a salary. She then investigated and found out that Mr Pelser had been appointed at Neiwelsig high school on the 1st of January 2021. In February 2021 his appointment was changed to an appointment against a promotional post at Koort Niemann primary school.
26. The principal had to complete a PO20 form which is used to request that a post be filled.
27. Pages 7 to 21 of Bundle “A” show that the applicant was appointed at Koort Niemann primary school in a vacant temporary post. He was later appointed at Neiwelsig high school when in reality he was never at Neiwelsig high school. He was then appointed in a promotional temporary post at Koort Niemann primary school.
28. The staff establishment of Koort Niemann primary school at the time she inquired shows that there were only two temporary posts at the school and these were promotional posts. She does not know what happened to the post that the applicant had occupied because there was no response to their inquiry, from the department.
29. She never inquired from the principal at Koort Niemann primary school as to why the post that the applicant had occupied was no longer available. The applicant inquired from the principal and the principal then inquired with the Department.
30. It was possible that the school could have lost the temporary post but the question is what happened to the post and if the principal shouldn’t have known about it. Her assumption is that the applicant had lost the post because he had been wrongly placed on the staff establishment of Neiwelsig high school and that had he remained on the staff establishment of Koort Niemann primary school he would not have lost the post.
THE RESPONDENT`S CASE:
The respondent’s only witness, Ms Libuseng Liphephelo testified under oath that:
31. She is the acting Senior Human Resources Officer, Recruitment and Selection at Motheo District, Department of Education in Free State.
32. The applicant, Mr Pelser had been appointed at Koort Niemann primary school in 2017 in a temporary vacant post. In December 2020 the school had lost the post that the applicant had occupied.
33. Usually when there is a decline in the number of learners, a school might lose the post.
34. According to the collective agreement (ELRC Resolution 4 of 2018) when a person has been temporarily employed, they qualify to be converted to a permanent post after six months. The applicant had not been converted because he is not professionally qualified. He has a B-Tech in post school qualification which is not relevant in a primary school.
35. In January 2021 the school principal had alerted the district office that the applicant did not receive a salary whilst he was still at work. The applicant was then appointed in another component whilst they were waiting for a promotional post to be created at Koort Niemann primary school. The appointment in another component was only for salary purposes.
36. Normally appointments in temporary posts are for six months, from January to June and the Head of the Department would then send the district office communique to extend the appointments for another six months, from July to December. Communication in this regard is usually done with school principals.
37. In the case of the applicant, communication was done with the then acting principal, Mr Hannekom. Even though she could not remember the date, she can confirm that it was communicated to Mr Hannekom that the applicant could not be converted because of his qualifications. She disputed that the issue of the applicant’s qualification was only communicated to the principal in 2021.
38. She conceded under cross-examination that a notice of termination of the applicant’s fixed term contract was not given to the applicant.
39. Contracts of employment were only given to permanent educators and not those in fixed term contracts. The applicant is not permanently appointed, he therefore was not given a contract of employment but only letters of temporary employment every six months. It was put to her that the only appointment that the applicant ever received was in 2017.
40. Ms Liphephelo did not dispute that when educators are declared additional to the staff establishment this must be done in accordance with the ELRC Resolution 4 of 2016.
ANALYSIS OF EVIDENCE AND ARGUMENTS
41. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
42. The applicant’s case is based on section 186 (1) (b) of the Labour Relations Act 66 of 1995 which reads as follows:
Section 186
Meaning of dismissal and unfair labour practice:
(1) Dismissal means that-
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer –
(i) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) 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.
43. The respondent disputed that the respondent had been dismissed when his fixed-term contract was not extended at the end of 2020 but he was given a new fixed-term contract in February 2021.
44. Since there was a dispute on whether or not the applicant had been dismissed, the onus to prove the alleged dismissal in this case rested with the applicant.
45. It was the applicant’s contention that he was dismissed by the respondent at the end of 2020 when the fixed-term contract that he had entered into in 2018 and which had been extended at the end of every six months until on the 31st of December 2020, was not renewed. The fixed-term contract which forms the basis of this dispute was not included in the applicant’s bundle of documents (Bundle “A”). No evidence was led on the wording of the contract and on the specific terms of that fixed-term contract.
46. It was established as common cause between the parties that the post which the applicant had occupied from May 2017 when he was initially employed by the respondent until December 2020, was a temporary substantive post level 1 educator post. This post, as per the unchallenged evidence of the respondent has been lost by the school in December 2020 and therefore no longer existed on the staff establishment of Koort Niemann primary school.
47. The applicant, Mr Pelser did not receive a notice that the fixed-term contract would not be extended beyond 31 December 2020. He only learnt of the termination of the contact when he did not receive his salary in January of 2021.
The respondent’s own witness, Ms Liphephelo conceded that the Motheo district office in whose jurisdiction the school where the applicant was working, was also not aware of the termination of the applicant’s fixed-term contract at the end of 2020 but was only alerted of this fact by the school’s principal in January 2021.
48. The applicant, despite having been in the same school for three years has not been provided with any correspondence in respect of his employment status. According to the applicant, an application that his post be converted from temporary to permanent was done by the principal in January 2018 but he had never received confirmation that the conversion had been done. He contends that he would inquire about this from time to time and the response he received each time would be that the matter was being handled by the department.
49. It is apparent from the background off this matter that the respondent’s communication on the applicant’s fixed term contract extensions, possibility of conversion and ultimate termination was very minimal if at all and that the applicant was never favoured with such communication. In the absence of evidence from the school principal, I am unable to verify if indeed the issues pertaining to the applicant’s employment status had been communicated by the respondent to the school. It is also not clear why the applicant had not pursued with making sure that his temporary employment had been converted to permanency. If he did not get any joy from his principal in this regard, he could have requested for the intervention of his Union who could have pursued the matter with the respondent.
50. The onus to prove whether there was dismissal in terms of section 186(1) (b) in circumstances where a fixed-term contract was not renewed or was renewed on less favourable terms, in each case rests with the applicant who alleges such dismissal. The Labour Court in Member of the Executive Council for the Department of Finance Eastern Cape v Milander & Others(2011)32 ILJ 2521 (LC) summarised the approach adopted in determining whether a reasonable expectation of renewal of a fixed-term contract has been established. The court held in this case that such a test involved a dual inquiry. The first inquiry is a subjective one and entails enquiring into the subjective basis upon which an employee contends that his/her contract ought to have been renewed. If the employee fails to show that he/she had a reasonable expectation that his/her contract would be renewed then that brings the inquiry to an end. However if the employee succeeds in showing that he/she subjectively expected that his/her fixed-term contract would be renewed then the second enquiry entails a determination of the existence of such expectation on the basis of the objective facts that existed prior to the termination of the contract.
51. The applicant in this case contends that he had had always assumed that his post had been converted to be permanent after he was initially employed as a substitute educator. He further contends that he had on a several occasions inquired if he had been made permanent or not and the response was that the department was dealing with the issue. At no stage does the applicant in his evidence state that he had a reasonable expectation of renewal. His emphasis on his assumption that he was at some stage made permanent. The applicant party in their closing arguments submit that it is imperative to state that the applicant does not allege unfair dismissal in terms of section 186 (1) (b) (i) but rather in terms of 186(1) (b) (ii). It is very interesting to note that this was never canvassed at any stage during the leading of evidence. The applicant further fails to lay a basis for the reasonable expectation, despite correctly quoting the requirements to prove the reasonable expectation as articulated in the De Milander appeal which upheld the Labour Court’s decision.
52. The LAC judgement in South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others [2008] 9 BLLR 845 (LAC) in paragraph 43 states as follows: “What section 186 (1) (b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it . The operative terms of section 186(1) (b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed term contract or renew it on less favourable terms. The fixed- term contract should also be capable of renewal.” Again the applicant correctly quotes form this case but does not show how the applicant has successfully discharged the requirements stipulated by the court. I find in this regard that the applicant has failed to discharge the onus that there was indeed a reasonable expectation that the initial fixed-term contract would be renewed or that the applicant would be retained on an indefinite basis on the same or similar terms as the fixed-term contract. The applicant’s own witness, Ms Johanna Venter confirmed that when they inquired with the respondent, it was established that the level 1 educator post that the applicant had occupied until December 2020 was no longer existent on the school’s establishment. It follows therefore than one cannot be retained in a non-existent post.
53. The respondent’s defence to the dispute is that the applicant was never dismissed, he was simply given a new fixed-term contract when the school lost the post he had occupied in terms of the initial contract and that the applicant could not be retained in the same contract because the only available post at the school was the promotional post in which the applicant has now been placed. The respondent further relies on the ELRC Resolution 4 of 2018, to advance the argument that the applicant could not be made permanent in the temporary post due to issues with qualifications.
The Resolution specifically refers to section 186(1)(b) of the LRA and is aimed at ensuring that incumbents in temporary posts that qualify to be made permanent are converted as soon as they have satisfied the requirements for such conversion.
54. The applicant does not dispute that he has a qualification that renders him suitable to teach at a secondary school and not a primary school. He however contends that no one has ever told him that the reason he was not converted to be permanent was because of his qualification. He acknowledges that the ELRC Resolution 4 of 2018 offers relief to educators who are appointed in temporary positions when they meet the requirements to be appointed permanently. It is clear that the applicant could not be converted in terms of the resolution because he failed to meet the requirements. The fixed term contract that the applicant had from 2018 until 2020 was not capable of renewal simply because the post against which the contract was concluded was no longer in existence. The respondent can therefore not reasonably be expected to retain the applicant in the same contract when they did not have a substantive level 1 educator post at the school.
55. Taking all the factors into consideration, I find that on a balance of probabilities the applicant failed to prove that he was dismissed when the initial fixed term contract was not renewed at the end of December 2020 when the contract reached its termination date.
Award
1. The applicant has failed to prove on a balance of probabilities that he was dismissed by the respondent, the department of Education, Free State Province on 31 December 2020, in terms of section 186(1) (b) of the LRA.
2. As a result of the aforesaid, the applicant’s application is dismissed.
Asnath Sedibane
ELRC Dispute Resolution Panellist
Case No: ELRC304-21/22FS
Date of Award: 16 November 2021
In the ARBITRATION between:
SAOU obo PELSER, JACQUES
(Union / Applicant)
and
DEPARTMENT OF EDUCATION FREE STATE
(Respondent)
Union/Applicant’s representative: Ms Hester Human (SAOU Official)
Union/Applicant’s address: Telephone: 051 430 1531
Telefax:
Email: hesterh@saou.co.za
Respondent’s representative: Mr Thulo Tswinke
Respondent’s address: Department of Education Free State Province
Private Bag X20565
Bloemfontein
9300
Telephone: 051 4044 150
Telefax:
Email:
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Jacques Pelser, and the Department of Education, Free State Province was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration on 02 November 2021 in terms of section 186(1) (b) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The leading of oral evidence was finalized on the 2nd of November 2021 and it was agreed between the parties and the Panellist that the parties would submit their written closing arguments by no later than the 10th of November 2021. The proceedings were conducted in English and were manually and digitally recorded. Only the Applicant submitted written closing arguments on the 10th of November 2021.
3. The applicant was present and was represented by Ms Hester Human, an official of SAOU and the Respondent was represented by Mr Thulo Tswinke, an official of the Department of Education in the Free State Province.
4. The parties exchanged their bundles of documents which were also emailed to the Panellist. The Applicant’s bundle was marked bundle “A” and the Respondent’s bundle was marked bundle “R”.
PRELIMINARY ISSUES
5. No preliminary issues were raised by either of the parties.
ISSUES TO BE DECIDED
6. The dispute was referred to the ELRC by the applicant as an Alleged Unfair Dismissal in terms of section 186(1) (b) of the LRA.
7. I was required to determine whether the respondent unfairly dismissed the applicant when the applicant’s fixed term contract was not renewed after it expired on the 31st December 2020.
BACKGROUND TO THE DISPUTE
8. The applicant, Mr Pelser was employed as an educator on a 6 months fixed-term contract in a temporary level 1 educator post, at Koort Niemann Primary school in January 2018. This was subsequent to him having been appointed as a substitute educator at the same school in May 2017.
9. The fixed term contract was extended every year from July to December and was renewed in December every year until December 2020 when the contract was not renewed.
10. According to the applicant, he was given a new fixed-term contract in February 2021. This contract is less favorable to the applicant in that it is a temporary appointment in a promotional post as opposed to the vacant substantive post that the applicant had occupied in the previous fixed-term contract.
11. The respondent’s version is that the applicant’s position has not changed in that he is still working at the same school, in a temporary vacant post that can be filled at any time. The reason why the first fixed term contract ended and was not renewed was because the school had lost the post. The reason why the applicant was not converted to a permanent post, in terms of the ELRC Resolution 4 of 2018 was that he had a secondary school qualification whilst he occupied a post in a primary school. The applicant therefore had failed to meet the requirements for conversion hence he remained on a fixed-term contract.
12. To prove their respective cases, both parties led and oral evidence and also referred to documents.
13. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Only the applicant submitted their written heads of arguments. I have considered the oral and documentary evidence from both parties as well as the applicant’s written closing arguments in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Jacques Pelser, made an affirmation and testified that:
14. He is an educator employed at Koort Niemann Primary school since May 2017. He was initially employed as a replacement teacher and was since January 2018 employed on a fixed term contact in a vacant substantive post.
15. He was informed by the school principal that after 6 months, an application would be made to make his appointment permanent. He did not receive any communication in this regard but had assumed that he was now permanent.
16. He delivers a good quality of work and everybody is happy with his work. He serves on the school’s governing body and his moderations are very good. His file has been used as an example for other educators.
17. He only became aware that he was still on a fixed term contract and that it had been terminated, when he did not receive a salary in in January 2021. The school had to lend him some money during this period.
18. He reported the issue to his Union and the Union informed him that what they had found out was that he had resigned. This was not true since he had never tendered a resignation.
19. In February 2021, his salary resumed but was on a lower scale than it was in 2020.
20. He had a B-Tech in post school qualification. He had never been told by anyone that he was not qualified to teach at a primary school. Other teachers in the same school as him also have the same qualifications as him.
21. He was not aware of the ELRC Resolution 4 of 2018. He had heard of conversions but did not know that he had a role to play in that process. He is not asking for a conversion but that he be placed in a temporary substantive level 1 educator post.
22. At school level there is no difference between the post that he is currently occupying and the post he occupied in the previous fixed term contract in that he is still teaching the same subjects. The difference is that he is currently in a promotional post and if interviews are conducted next month, he would be out of the post whereas with a vacant substantive post there are chances of being appointed in another post should it be vacant and there must be notice if the temporary post is to be terminated.
23. He knows that in January 2018, an application for him to be made permanent was done. Whenever he inquired whether or not he was permanent he was always informed that the department is dealing with the issue. He had assumed that his post was permanent.
The applicant’s second witness, Ms Johanna Venter testified under oath that:
24. She is a full time shop steward at SAOU, a position she has held for the past 12 years. She works with the appointments of educators and salary related matters.
25. She was contacted by Mr Pelser in January because he did not receive a salary. She then investigated and found out that Mr Pelser had been appointed at Neiwelsig high school on the 1st of January 2021. In February 2021 his appointment was changed to an appointment against a promotional post at Koort Niemann primary school.
26. The principal had to complete a PO20 form which is used to request that a post be filled.
27. Pages 7 to 21 of Bundle “A” show that the applicant was appointed at Koort Niemann primary school in a vacant temporary post. He was later appointed at Neiwelsig high school when in reality he was never at Neiwelsig high school. He was then appointed in a promotional temporary post at Koort Niemann primary school.
28. The staff establishment of Koort Niemann primary school at the time she inquired shows that there were only two temporary posts at the school and these were promotional posts. She does not know what happened to the post that the applicant had occupied because there was no response to their inquiry, from the department.
29. She never inquired from the principal at Koort Niemann primary school as to why the post that the applicant had occupied was no longer available. The applicant inquired from the principal and the principal then inquired with the Department.
30. It was possible that the school could have lost the temporary post but the question is what happened to the post and if the principal shouldn’t have known about it. Her assumption is that the applicant had lost the post because he had been wrongly placed on the staff establishment of Neiwelsig high school and that had he remained on the staff establishment of Koort Niemann primary school he would not have lost the post.
THE RESPONDENT`S CASE:
The respondent’s only witness, Ms Libuseng Liphephelo testified under oath that:
31. She is the acting Senior Human Resources Officer, Recruitment and Selection at Motheo District, Department of Education in Free State.
32. The applicant, Mr Pelser had been appointed at Koort Niemann primary school in 2017 in a temporary vacant post. In December 2020 the school had lost the post that the applicant had occupied.
33. Usually when there is a decline in the number of learners, a school might lose the post.
34. According to the collective agreement (ELRC Resolution 4 of 2018) when a person has been temporarily employed, they qualify to be converted to a permanent post after six months. The applicant had not been converted because he is not professionally qualified. He has a B-Tech in post school qualification which is not relevant in a primary school.
35. In January 2021 the school principal had alerted the district office that the applicant did not receive a salary whilst he was still at work. The applicant was then appointed in another component whilst they were waiting for a promotional post to be created at Koort Niemann primary school. The appointment in another component was only for salary purposes.
36. Normally appointments in temporary posts are for six months, from January to June and the Head of the Department would then send the district office communique to extend the appointments for another six months, from July to December. Communication in this regard is usually done with school principals.
37. In the case of the applicant, communication was done with the then acting principal, Mr Hannekom. Even though she could not remember the date, she can confirm that it was communicated to Mr Hannekom that the applicant could not be converted because of his qualifications. She disputed that the issue of the applicant’s qualification was only communicated to the principal in 2021.
38. She conceded under cross-examination that a notice of termination of the applicant’s fixed term contract was not given to the applicant.
39. Contracts of employment were only given to permanent educators and not those in fixed term contracts. The applicant is not permanently appointed, he therefore was not given a contract of employment but only letters of temporary employment every six months. It was put to her that the only appointment that the applicant ever received was in 2017.
40. Ms Liphephelo did not dispute that when educators are declared additional to the staff establishment this must be done in accordance with the ELRC Resolution 4 of 2016.
ANALYSIS OF EVIDENCE AND ARGUMENTS
41. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
42. The applicant’s case is based on section 186 (1) (b) of the Labour Relations Act 66 of 1995 which reads as follows:
Section 186
Meaning of dismissal and unfair labour practice:
(1) Dismissal means that-
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer –
(i) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) 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.
43. The respondent disputed that the respondent had been dismissed when his fixed-term contract was not extended at the end of 2020 but he was given a new fixed-term contract in February 2021.
44. Since there was a dispute on whether or not the applicant had been dismissed, the onus to prove the alleged dismissal in this case rested with the applicant.
45. It was the applicant’s contention that he was dismissed by the respondent at the end of 2020 when the fixed-term contract that he had entered into in 2018 and which had been extended at the end of every six months until on the 31st of December 2020, was not renewed. The fixed-term contract which forms the basis of this dispute was not included in the applicant’s bundle of documents (Bundle “A”). No evidence was led on the wording of the contract and on the specific terms of that fixed-term contract.
46. It was established as common cause between the parties that the post which the applicant had occupied from May 2017 when he was initially employed by the respondent until December 2020, was a temporary substantive post level 1 educator post. This post, as per the unchallenged evidence of the respondent has been lost by the school in December 2020 and therefore no longer existed on the staff establishment of Koort Niemann primary school.
47. The applicant, Mr Pelser did not receive a notice that the fixed-term contract would not be extended beyond 31 December 2020. He only learnt of the termination of the contact when he did not receive his salary in January of 2021.
The respondent’s own witness, Ms Liphephelo conceded that the Motheo district office in whose jurisdiction the school where the applicant was working, was also not aware of the termination of the applicant’s fixed-term contract at the end of 2020 but was only alerted of this fact by the school’s principal in January 2021.
48. The applicant, despite having been in the same school for three years has not been provided with any correspondence in respect of his employment status. According to the applicant, an application that his post be converted from temporary to permanent was done by the principal in January 2018 but he had never received confirmation that the conversion had been done. He contends that he would inquire about this from time to time and the response he received each time would be that the matter was being handled by the department.
49. It is apparent from the background off this matter that the respondent’s communication on the applicant’s fixed term contract extensions, possibility of conversion and ultimate termination was very minimal if at all and that the applicant was never favoured with such communication. In the absence of evidence from the school principal, I am unable to verify if indeed the issues pertaining to the applicant’s employment status had been communicated by the respondent to the school. It is also not clear why the applicant had not pursued with making sure that his temporary employment had been converted to permanency. If he did not get any joy from his principal in this regard, he could have requested for the intervention of his Union who could have pursued the matter with the respondent.
50. The onus to prove whether there was dismissal in terms of section 186(1) (b) in circumstances where a fixed-term contract was not renewed or was renewed on less favourable terms, in each case rests with the applicant who alleges such dismissal. The Labour Court in Member of the Executive Council for the Department of Finance Eastern Cape v Milander & Others(2011)32 ILJ 2521 (LC) summarised the approach adopted in determining whether a reasonable expectation of renewal of a fixed-term contract has been established. The court held in this case that such a test involved a dual inquiry. The first inquiry is a subjective one and entails enquiring into the subjective basis upon which an employee contends that his/her contract ought to have been renewed. If the employee fails to show that he/she had a reasonable expectation that his/her contract would be renewed then that brings the inquiry to an end. However if the employee succeeds in showing that he/she subjectively expected that his/her fixed-term contract would be renewed then the second enquiry entails a determination of the existence of such expectation on the basis of the objective facts that existed prior to the termination of the contract.
51. The applicant in this case contends that he had had always assumed that his post had been converted to be permanent after he was initially employed as a substitute educator. He further contends that he had on a several occasions inquired if he had been made permanent or not and the response was that the department was dealing with the issue. At no stage does the applicant in his evidence state that he had a reasonable expectation of renewal. His emphasis on his assumption that he was at some stage made permanent. The applicant party in their closing arguments submit that it is imperative to state that the applicant does not allege unfair dismissal in terms of section 186 (1) (b) (i) but rather in terms of 186(1) (b) (ii). It is very interesting to note that this was never canvassed at any stage during the leading of evidence. The applicant further fails to lay a basis for the reasonable expectation, despite correctly quoting the requirements to prove the reasonable expectation as articulated in the De Milander appeal which upheld the Labour Court’s decision.
52. The LAC judgement in South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others [2008] 9 BLLR 845 (LAC) in paragraph 43 states as follows: “What section 186 (1) (b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it . The operative terms of section 186(1) (b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed term contract or renew it on less favourable terms. The fixed- term contract should also be capable of renewal.” Again the applicant correctly quotes form this case but does not show how the applicant has successfully discharged the requirements stipulated by the court. I find in this regard that the applicant has failed to discharge the onus that there was indeed a reasonable expectation that the initial fixed-term contract would be renewed or that the applicant would be retained on an indefinite basis on the same or similar terms as the fixed-term contract. The applicant’s own witness, Ms Johanna Venter confirmed that when they inquired with the respondent, it was established that the level 1 educator post that the applicant had occupied until December 2020 was no longer existent on the school’s establishment. It follows therefore than one cannot be retained in a non-existent post.
53. The respondent’s defence to the dispute is that the applicant was never dismissed, he was simply given a new fixed-term contract when the school lost the post he had occupied in terms of the initial contract and that the applicant could not be retained in the same contract because the only available post at the school was the promotional post in which the applicant has now been placed. The respondent further relies on the ELRC Resolution 4 of 2018, to advance the argument that the applicant could not be made permanent in the temporary post due to issues with qualifications.
The Resolution specifically refers to section 186(1)(b) of the LRA and is aimed at ensuring that incumbents in temporary posts that qualify to be made permanent are converted as soon as they have satisfied the requirements for such conversion.
54. The applicant does not dispute that he has a qualification that renders him suitable to teach at a secondary school and not a primary school. He however contends that no one has ever told him that the reason he was not converted to be permanent was because of his qualification. He acknowledges that the ELRC Resolution 4 of 2018 offers relief to educators who are appointed in temporary positions when they meet the requirements to be appointed permanently. It is clear that the applicant could not be converted in terms of the resolution because he failed to meet the requirements. The fixed term contract that the applicant had from 2018 until 2020 was not capable of renewal simply because the post against which the contract was concluded was no longer in existence. The respondent can therefore not reasonably be expected to retain the applicant in the same contract when they did not have a substantive level 1 educator post at the school.
55. Taking all the factors into consideration, I find that on a balance of probabilities the applicant failed to prove that he was dismissed when the initial fixed term contract was not renewed at the end of December 2020 when the contract reached its termination date.
Award
1. The applicant has failed to prove on a balance of probabilities that he was dismissed by the respondent, the department of Education, Free State Province on 31 December 2020, in terms of section 186(1) (b) of the LRA.
2. As a result of the aforesaid, the applicant’s application is dismissed.
Asnath Sedibane
ELRC Dispute Resolution Panellist