ELRC644-20/21 EC
Text
ELRC850-20/21EC
Award Date:
07 February 2022
Panelist: Clint Enslin
Case No.: ELRC850-20/21EC
Date of Award: 7 February 2022
In the ARBITRATION between:
NEHAWU obo Myalela and 2 others
(Union / Applicant)
and
Department of Higher Education & Training 1st Respondent
Ikhala TVET College 2nd Respondent
(Respondent)
Applicant’s representative: Mr Nkosiyam Mkutukana
Applicant’s address:
Telephone: 0815106324
Telefax:
Email nkosiyam@nehawu.org.za
Respondent’s representative: Mr Sandile Chamane (1st Respondent)
Ms Pindy Makhokha (2nd Respondent)
Telephone: Mr Chamane 0824522785 Ms Makhoha 0767993654
Telefax:
Email Pindy.Makhokha@ikhala.edu.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 5 November 2021, 22 November 2021 and 18 January 2022.
2. The Applicants, Ms Nobahlele Myalela, Ms Zoleka Mrubata and Mr Brighton Matsa, were represented by Mr Nkosiyam Mkutukana, an official from NEHAWU. The 1st Respondent, Department of Higher Education and Training was represented by Mr Sandile Chamane, a Labour Relations Practitioner, of the Department. The 2nd Respondent, Ikhala TVET College, was represented by Ms Pindy Makhokha, a Labour Relations Officer.
ISSUE TO BE DECIDED
3. Whether the termination of the Applicants’ services, or non-renewal of their contracts, amounted to a dismissal.
4. If found that a dismissal did take place, whether such dismissal was procedurally and substantively fair, and if not determine appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicants were all employed as lecturers by the 2nd Respondent.
5.2 The Applicants were all employed on Fixed Term Contracts (“FTCs”)
5.3 The Applicant’s earnings at the time of termination were as follows:
5.3.1 Ms Myalela earned R31971.01 per month.
5.3.2 Ms Mrubata earned R31971.01 per month.
5.3.3 Mr Matsa earned 24 172.62 per month.
5.4 The Applicants’ contracts ended on 31/12/2020, as per the contracts end date.
6. Each party relied on a bundle of documents, which was sent electronically. For ease of reference, I will refer to the Applicants bundle as “A1” and to the Respondent’s bundle as “R1”.
7. The Applicants seek to be reinstated and confirmed that they had not been employed since the termination of their contracts with the 2nd Respondent.
8. The Applicant’s and 2nd Respondent requested to submit written closing arguments, however, only the 2nd Respondent did so.
9. The matter was electronically recorded.
SURVEY OF EVIDENCE AND ARGUMENT
10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.
APPLICANTS’ CASE
MS ZOLEKA MRUBATA
11. Ms Zoleka Mrubata testified she had been working as a lecturer for the 2nd Respondent since January 2018. She lectured Ministerial Programs. Her contract had continuously been renewed from January 2018 until December 2020. Initially it was 3 month contracts, but in 2020 it was two 6 month contracts. She was not informed that the contract would be terminated. She was informed that she was on an FTC, but was not told it was as a replacement. The post she was in was vacant as the previous incumbent had moved.
12. Page 12 of A1 was the contract she had signed, which stated that she was employed as a “contract lecturer” and not a replacement lecturer. She expected her contract to be renewed due to the continuous contracts she had received, she also believed her services were still required as the classes she gave were still being given and a departmental memorandum that stated that FTC staff should be made permanent. Their names were to be submitted to the 1st Respondent in this regard and Mr Malindi had confirmed to them that he had done so.
13. Page 1 to 3 of A1 was a Departmental Circular number 30 of 2020, which was signed on 9 October 2020. She was still working at the 2nd Respondent at this time. She believed that this circular applied to her as she was employed by the 2nd Respondent’s council at the time and gave Ministerial Programmes. She relied specifically on 2 paragraphs on page 2 of the said circular, which read as follows:
13.1 “Colleges are to note that the recent submission related to the permanency of the contract staff associated with the delivery of Ministerial Programmes has been approved by the minister and is currently being implemented via the head office HRMA unit. The termination of existing contracts at this stage is likely to be counterproductive to this aim. The above should also apply to staff members appointed by College Councils currently associated with Ministerial Programmes.
13.2 In view of the above, this circular serves to place a Moratorium on the filling of any new vacant position(s) associated with the approved PPN model and standardized structure in TVET colleges, as well as the discontinuation of termination of existing contracts of staff delivering on Ministerial Programmes until due process around permanency of contract employees in such programmes and the PPN implementation is completed. Any existing recruitment drives are to be deferred until formal approval of the PPN Policy and Implementation Procedure Manual is published.”
14. They had taken the abovementioned circular to their supervisor, Ms Batela, who told them to consult HR for clarification. They then approached Mr Chamani, from HR, who informed them that their contracts would end on 31 December 2020. She was not satisfied and accordingly made an appointment with Mr Malindi, the Deputy Principle – Corporate Services of the College. She requested him to clarify the circular. He informed her that he had submitted the names of 15 lecturers and 1 support staff to the department for permanency. She then checked this with her contact at the DHET who stated that they cannot force Mr Chamani to give names. She then forwarded an e-mail to the principle of the college, Mr Phike, she requested him to intervene, however, he did not respond. After this she sent an e-mail to a Ms Williams, who is the head of the circular section of the DHET, who then instructed the college to answer. Mr Malindi then confirmed that they were replacement workers. They had also previously met with Ms Makhoka for clarification of the circular, who said that if their posts are advertised, they should apply.
15. Page 4 of A1 was departmental circular 40 of 2020, which purpose was to clarify circular 30 of 2020. The paragraphs she sought to rely on read as follows:
15.1 “It has come to the attention of the Department that some colleges have terminated contracts of staff delivering Ministerial Programmes, as well as continue to advertise or request to advertise posts related to the implementation of the PPN Model and standardized structure despite the issuing of Circular 30 of 2020. To clarify, the purposes of the moratorium outlined in circular 30 of 2020 is to ensure that:
15.2 All staff identified as offering Ministerial Programmes and therefore eligible for placement, migration or redeployment into posts in the standardized college structure are ring-fenced, and remain in the sector until the completion of the PPN implementation process. This relates to staff employed on both the college and Persal payrolls currently.
15.3 All posts with new “naming conventions / job titles” and functions related to posts on the standardized college structure are not to be recruited for, until the formal implementation processes for the PPN allocations and standardized structure begins.
15.4 Advertising of posts vacated by natural attrition must be processed as outlined in circular 30 of 2020 irrespective of the delegation associated with the post, to verify whether or not the proposed post to be advertised is deemed to be related to the new PPN model and standardized structure or not.”
15.5 In view of the above, this circular serves to reinforce and clarify the existing moratorium on the filling of any new vacant post(s) associated with the approved PPN model and standardized structure in TVET colleges, as well as the deferment of termination of existing contracts of staff delivering Ministerial Programmes, employed both via PERSAL and College payrolls, until due process around the PPN implementation is completed. Any existing recruitment drives relating to such posts are to be deferred until formal approval of the PPN Policy and Implementation Procedure Manual is published.”
16. Circular 40 of 2020 came out on 5 February 2021, after their employment had already been terminated. She believe that circular confirmed that the colleges should not continue to terminate their contacts. Mr Du Preez, the Campus Manager, had confirmed that their contracts would be renewed for 2 months from January 2021, he did not know why. He said HR would call them. Some were called and renewed.
17. She conceded that Circular 30 does not state that the 1st Respondent must absorb them, but she felt they should still have been there on a contract basis. She had high hopes of this. She agreed that as the post she filled was previously held by a person that had moved, it was a post that was already in the system. She agreed that any claim she may have would be against the 2nd Respondent and not the 1st Respondent.
MS NOBAHLE MYALELA
18. Ms Nobahle Myalela testified that she was a lecturer at the 2nd Respondent from 2018 to December 2020. She lectured Ministerial Programmes and was employed a contract lecturer. Her contact had been renewed a number of times, which lead her to believe that she would be made permanent. The renewals were as follows:
18.1 August to December 2018
18.2 April to May 2019
18.3 July to December 2019
18.4 January to June and then again from July to December 2020
19. Mr Du Preez had also told them that their contract would be renewed for 2 months from January 2021. She also believed that the circular (Circular 30 of 2020) indicate that they would be made permanent. She confirmed that they had gone to various persons seeking clarification. She believed that in terms of this circular, her contract should not have been terminated. Circular 40 of 2020 clarified the situation. The circulars had relieved her fears and she had a picture of her serving permanently as per the circular. Nothing in her contract indicated that she was a replacement.
20. She conceded that there was nothing in the circular stating that she would be made permanent, but she interpreted it to mean so. She believed that she was to be made permanent by the 1st Respondent. She confirmed that her contracts all had start and end dates. The last one confirmed that the employment relationship would terminate at the end of December 2020. The last position she was in was advertised in November 2020. She had queried this in line with the circular and was told to apply for the post, which she did. She was not sure what had happened thereafter. She agreed that the circular was issued by the 1st Respondent but felt it was for her employer, the 2nd Respondent. Mr Malindi had stated that their names had been submitted in terms of the circular. She believed that the 2nd Respondent should have appointed her permanently as per the instruction from the 1st Respondent, contained in the circular. She expected her contract to be renewed due to the number of renewals. The circular had increased this belief. She conceded that the renewals were to replace certain persons.
MR BRIGHTON MATSA
21. Mr Brighton Matsa testified that he had been a lecturer for the 2nd Respondent at their Queenstown campus from the 2nd semester in 2016 until December 2020. He had been on FTCs which were renewed a number of times. He acknowledged that there may have been breaks in between some contracts. His expectation was created by the awards he had won, Circular 30 of 2020 and the promise of a 2 month contract in 2021. The circular stated that contract staff should not be terminated, which triggered hope that they would not be going anywhere.
22. He was a contract worker and believed that he should have been retained until the process was finalised. He conceded that the records reflected that in 2016 he had one fixed term contract of 3 months to substitute for another lecturer. In 2017 he was on a fixed term contract for 4 months. His contracts did not run for the entire periods of the years mentioned, but rather for some months in the said years. His last contract was from 1 July 2020 until 31 December 2020, when it would automatically end. It was clear to him that his contract would end on the aforementioned date, but the circular had given him hope. It was the circular that made him feel that his termination was unfair. He did not expect to be made permanent, but to remain on contract at the 2nd Respondent as per the circular and then possibly become permanent with the 1st Respondent or 2nd Respondent.
RESPONDENTS’ CASE
MR MQONDISI BHIKISHA
23. Mr Mqondisi Bhikisha, the Deputy Principal of Academic Services, testified that he had been in the said position, with the 1st Respondent, since 2013. The Applicants were employed on fixed term contracts (FTCs) with start and end dates. Ms Myalela was hired as substitutes for a lecturers who had passed away. Ms Mrubata and Mr Matsa were hired as substitutes for a lecturers who had resigned. The 2nd Respondent needs to hire a temporary replacement, whilst it waits for the 1st Respondent to make permanent appointments.
24. The contracts required renewal as the permanent appointment had not yet been made and students could not be without a lecturer. The reason that the contracts were not renewed after December 2020 was that a permanent employee, at the Aliwal North campus, was transferred to the position held by Mr Matsa at the Queenstown campus. His old post in Aliwal North was advertised and filled by the 1st Respondent. The position that Ms Myalela held was filled by a permanent employee, from the Queen Nonezi campus, whose previous subject was phased out. Ms Mrubata post was advertised in November 2020 and was filled in January 2021, after the completion of the relevant process.
25. All the Applicants’ contracts had expired in December 2020. The positions they held were advertised for permanent recruitment and were filled after the termination of the Applicants’ contracts. Two of the positions were filled by transfers and one by an external candidate. The permanent filling of the positions was done by the 1st Respondent. The 2nd Respondent had filled the positions temporarily as a stop gap measure. If the Applicants were to be reinstated to the 2nd Respondent, it would result in an audit finding, as permanent appointments can only be done by the 1st Respondent and only if there was a vacancy and funding for the position.
26. If contracts had been renewed for the vacant positions, it would have been due to the fact that no permanent appointments had yet been made by the 1st Respondent. In relation to circular 30 of 2020, in 2019 there was a new Post Provision Norm (PPN) at TVET colleges. This effectively meant a new organogram. New posts were created on the organogram. The circular dealt with these new posts and not the prior existing posts. In 2015 there was a migration whereby the 1st Respondent became responsible for permanent appointments. As the colleges had previously appointed permanently, there were many discrepancies with salaries, etc. The 2019 PPN was the solution for this. He believed that the temporary positions, referred to in the circular, were critical positions on the new organogram that had been filled temporarily by the colleges due to the fact that the 1st Respondent had not yet made permanent appointments. The circular confirmed that it refers to new positions (New positions on the PPN) at the end of the 1st paragraph on page 2 where it states: ”In addition, it is noted that some colleges are terminating contracts relating to staff currently employed in posts associated with the delivery of Ministerial programmes and part of the new post establishments in line with the PPN model.” The circular was also issued by the 1st Respondent and if the permanent filling of the positions was not in line with their own circular, they would not have done so.
27. Paragraph 5, on page 2, of Circular 30 of 2020 read as follows: ”In order to ensure continuity on service delivery TVET Colleges are only allowed to advertise and fill only vacated critical positions through natural attrition in their current structures that must be in line with their 63% threshold. The critical nature of the positions that are to be filled must be aligned to the service delivery imperatives of the college. Furthermore, before any current existing funded position can be advertised the college must first obtain confirmation that the post(s) to be advertised exist on the PERSAL system because no appointment will be processed for any position(s) that do not already exist on the PERSAL system……” Lecturer positions were critical positions. PPN process were not a process of making temporary employees permanent. The posts that the Applicant’s filled were not new posts as per the new PPN.
MR LUNGA MALINDI
28. Ms Lunga Malindi, the Deputy Principle- Corporate Services, testified that he was employed by the 1st Respondent since 1 February 2020 and had occupied his current positions since then. Towards the end of 2020, the Applicants had approached him in relation to circular 30. They had a discussion about circular 30 as well as Section 198B of the LRA. He went into detail to explain it to them. Firstly, he read the circular with them and then he explained its’ crux to them. They wanted to know why the posts had been advertised whilst they were there as there was a moratorium. He explained the heading to them and that there positions were not new. Also that the circular referred to new positions, added by the PPN, and not old positions. He also explained the situation around the filling of new positions. The circular allowed them to fill existing posts on the old structure.
29. He had sent names of people who had migrated in 2015 to Pretoria. There were 12 of them and they therefore referred to them as the “disciples”. The Applicants were not part of this. These “disciples” names were sent to ensure that they were ring fenced as FTCs come and go. They should have been permanent, but were taken off PERSAL as they had exceeded the allocated funding. He had not told the Applicant’s that he had given their names as names were not usually given. The situation with the “disciples” was different and an exception, for reasons explained.
30. The Organisational Development Unit had confirmed that they were correct as to who was covered and not covered by the circular. The “disciples” were migrated in 2015. They were on FTCs and were accordingly migrated as such. In 2017 the process of making persons permanent had started, however, due to a lack of funding and issues with documentation, these 12 were not processed. The Applicants did not form part of this. The circular did not state that old existing positions could only be filled once the PPN process was finalised. Neither circular 30 nor the PPN were there to make the Applicants permanent.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. This dispute has been referred as an unfair dismissal dispute. It is common cause that the Applicants were employed by the 2nd Respondent. Their dispute can therefore only be against the 2nd Respondent, as their employer, and not against the 1st Respondent, with whom no employment relationship existed. The Applicants have essentially based their case on an expectation of continued employment, which they seek to rely on various points in order to prove. The 2nd Respondent on the other hand disputes that any dismissal took place and bases this submission on a claim that the Applicants were on FTCs that came to an end as per the end date stipulated in the contracts.
32. Section 186(1)(b) of the Labour Relations Act 66 of 1995, as amended (“LRA”) states:
“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 period 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.”
33. Section 192 of the LRA states:
(1) “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal,
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”
34. The existence of a dismissal has been placed in dispute in this matter and as such the onus is on the Applicants to prove same. In an attempt to do so they rely on 3 points, which I will deal with hereunder.
Claim based on Circular 30 of 2020.
35. The Applicants claim that this circular entitled them to ongoing employment, either permanently or on extended fixed term contracts, after their contracts came to an end at the end of December 2020. The essence of this claim is that the aforementioned circular covered them and that the 2nd Respondent failed to comply therewith. The 2nd Respondent claims that the said circular did not apply to the Applicants.
36. The argument on this issue can be summarized in the following manner:
36.1 The Applicants claim that they were employed on fixed term contracts at the time that circular 30 came out. They were involved in delivering Ministerial Programmes and as such the said circular covers them. This circular, they argue, placed a moratorium on the termination of their contracts.
36.2 The 2nd Respondent claims that the Applicants are not covered by the said circular as their positions were not part of the new PPN, but rather part of the old structure. They argue that the circular is only applicable to new positions as per the new PPN structure.
37. To my mind, one needs to read the entire Circular 30 of 2020 in order to determine which, of the above submissions, is correct or the more probable one. On a proper and complete reading of the said circular, I am of the view that the Applicants seek to rely on certain wording, without viewing same in the context of the entire circular. I say this as a result of the following sections of the said circular:
37.1 The Heading of the circular reads: “MORATORIUM AND DEFERMENT ON THE FILLING OF ANY NEW VACANT POSITIONS AND THE TERMINATION OF CONTRACTS ASSOCIATED WITH THE POST PROVISIONING NORMS (PPN) MODEL AND STANDERDIZED COLLEGE STRUCTURE IN TECHNICAL AND VOCATIONAL EDUCATION AND TRAINING (TVET) COLLEGES.’ (Own underlining)
37.2 The second paragraph reads: “It has come to the attention of the Department that some of the TVET Colleges are currently advertising and filling newly created vacant posts in line with the approved PPN model allocation and standardised structure whilst the Department is still in the process of obtaining approval on the implementation policy and procedure manual. In addition, it is noted that some colleges are terminating contacts related to staff currently employed in posts associated with the delivery of Ministerial Programmes and part of the new post establishments in line with the PPN model.” (Own underlining)
38. To my mind the circular supports the contention, by the 2nd Respondent, that it is not dealing with Ministerial Programmes generally, but rather with Ministerial Programmes in terms of new positions as per the PPN. Even if I am wrong, in this regard, paragraph 6 of the said circular confirms that, despite the contents of the circular, TVET Colleges may still advertise and fill vacated critical positions through natural attrition in their current structures. The evidence before me is that the positions which the Applicants occupied were lecturer posts, which were critical. The posts were existing posts on the 2nd Respondent’s existing structure and had been vacated by natural attrition. Accordingly, the 2nd Respondent was entitled, in terms of circular 30 of 2020, to advertise and have the positions filled, which they did.
39. It is, in my view, further important to note that the Applicants filled positions that were permanent on the old structure and which had been vacated by natural attrition. As per the evidence lead, it is only the 1st Respondent that can make permanent replacements for these positions. Until such time as the 1st Respondent makes such permanent appointments, the 2nd Respondent is required to fill the post on a temporary basis in order to ensure proper service delivery. They also need to renew/extend such temporary contracts until such time as the 1st Respondent in fact fills the position. The positions were advertised on or about November 2020 and as such once they knew the positions would be filled on a permanent basis from January 2022, there was no need to extend the Applicants’ contracts further.
Claim based on continuous/repetitive renewals
40. The evidence shows that there were gaps between the Applicants’ contacts and that they were for specific reasons or that the contacts were extended due to the fact that position, the Applicants were brought in to cover, had not yet been replaced permanently by the 1st Respondent as yet. The contacts set out clearly that the work is on a replacement and/or contract basis and that they would automatically terminate on the end date sited. The evidence shows further that the Applicants had understood this and that they had not had any issue, in this regard, with previous renewals or extensions. It seem that it is Circular 30 of 2020, which changed their view and not the contracts themselves.
41. I do not believe that this is a situation where FTCs were used in order to avoid employing the Applicants permanently and the associated responsibility which would accompany same. As stated above, the 1st Respondent makes permanent appointments and not the 2nd Respondent. The 2nd Respondent can, however, not be without lecturers, until such time that the 1st Respondent makes the required appointments. This would result in an inability to deliver on the part of the 2nd Respondent. The FTCs and any renewals thereof, would therefore be justifiable. One should not lose sight of the fact that our law allows for fixed term contacts, but seeks to prevent the misuse of same. I believe that, in this current situation, the fixed term contracts were being used for permissible reasons. There was justifiable reasons why the Applicants were brought in on a FTC basis and why such contracts may have been extended. I also believe that the Applicants were aware of this as they are educated individuals and had signed for same.
Claim based on being informed that their contracts would be extended for 2 months.
42. The Applicants claim that they were told that their contracts would be extended for a period of 2 months. I find this to be improbable. I say this because Circular 30 of 2020 is dated 9 October 2020. The said circular makes no mention of time frames. Why would they be told that their contracts would be extended for 2 months specifically? If the drafters of the said circular could not give time frames, how would anyone else know that a 2 month extension would be required? As per the evidence, the posts were advertised in November 2020 already, for permanent appointment by the 1st Respondent. How would anyone know for sure how long such process would take? Why would the Applicants all be told they would receive a 2 month extension as they filled different posts, as such it would, in my view, be probable that the posts would be filled at different times (nor necessarily at the same time – at the end of 2 months). On the Applicants own version, when they queried the situation, HR had told them that their contracts would terminate at the end of December 2020. It is therefore unlikely that the Campus Manager would make such a promise, when HR clearly had a different view.
43. Based on the above, whilst I believe that the Applicants may have had a subjective expectation of the renewal of their contracts, based largely on their interpretation of Circular 30 of 2020, I do not believe that such subjective belief is based on objective facts.
44. The Applicants have accordingly failed to show that the termination of their fixed term contracts, or non- renewal thereof, amounted to a dismissal.
AWARD
45. The Applicants, Ms Nobahlele Myalela, Ms Zoleka Mrubata and Mr Brighton Matsa, have failed to show that the termination of their fixed term contracts, or non-renewal of same, amounted to a dismissal.
Name: Clint Enslin
(ELRC) Arbitrator
Case No.: ELRC850-20/21EC
Date of Award: 7 February 2022
In the ARBITRATION between:
NEHAWU obo Myalela and 2 others
(Union / Applicant)
and
Department of Higher Education & Training 1st Respondent
Ikhala TVET College 2nd Respondent
(Respondent)
Applicant’s representative: Mr Nkosiyam Mkutukana
Applicant’s address:
Telephone: 0815106324
Telefax:
Email nkosiyam@nehawu.org.za
Respondent’s representative: Mr Sandile Chamane (1st Respondent)
Ms Pindy Makhokha (2nd Respondent)
Telephone: Mr Chamane 0824522785 Ms Makhoha 0767993654
Telefax:
Email Pindy.Makhokha@ikhala.edu.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was scheduled for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 5 November 2021, 22 November 2021 and 18 January 2022.
2. The Applicants, Ms Nobahlele Myalela, Ms Zoleka Mrubata and Mr Brighton Matsa, were represented by Mr Nkosiyam Mkutukana, an official from NEHAWU. The 1st Respondent, Department of Higher Education and Training was represented by Mr Sandile Chamane, a Labour Relations Practitioner, of the Department. The 2nd Respondent, Ikhala TVET College, was represented by Ms Pindy Makhokha, a Labour Relations Officer.
ISSUE TO BE DECIDED
3. Whether the termination of the Applicants’ services, or non-renewal of their contracts, amounted to a dismissal.
4. If found that a dismissal did take place, whether such dismissal was procedurally and substantively fair, and if not determine appropriate relief.
BACKGROUND TO THE ISSUES
5. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.
5.1 The Applicants were all employed as lecturers by the 2nd Respondent.
5.2 The Applicants were all employed on Fixed Term Contracts (“FTCs”)
5.3 The Applicant’s earnings at the time of termination were as follows:
5.3.1 Ms Myalela earned R31971.01 per month.
5.3.2 Ms Mrubata earned R31971.01 per month.
5.3.3 Mr Matsa earned 24 172.62 per month.
5.4 The Applicants’ contracts ended on 31/12/2020, as per the contracts end date.
6. Each party relied on a bundle of documents, which was sent electronically. For ease of reference, I will refer to the Applicants bundle as “A1” and to the Respondent’s bundle as “R1”.
7. The Applicants seek to be reinstated and confirmed that they had not been employed since the termination of their contracts with the 2nd Respondent.
8. The Applicant’s and 2nd Respondent requested to submit written closing arguments, however, only the 2nd Respondent did so.
9. The matter was electronically recorded.
SURVEY OF EVIDENCE AND ARGUMENT
10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.
APPLICANTS’ CASE
MS ZOLEKA MRUBATA
11. Ms Zoleka Mrubata testified she had been working as a lecturer for the 2nd Respondent since January 2018. She lectured Ministerial Programs. Her contract had continuously been renewed from January 2018 until December 2020. Initially it was 3 month contracts, but in 2020 it was two 6 month contracts. She was not informed that the contract would be terminated. She was informed that she was on an FTC, but was not told it was as a replacement. The post she was in was vacant as the previous incumbent had moved.
12. Page 12 of A1 was the contract she had signed, which stated that she was employed as a “contract lecturer” and not a replacement lecturer. She expected her contract to be renewed due to the continuous contracts she had received, she also believed her services were still required as the classes she gave were still being given and a departmental memorandum that stated that FTC staff should be made permanent. Their names were to be submitted to the 1st Respondent in this regard and Mr Malindi had confirmed to them that he had done so.
13. Page 1 to 3 of A1 was a Departmental Circular number 30 of 2020, which was signed on 9 October 2020. She was still working at the 2nd Respondent at this time. She believed that this circular applied to her as she was employed by the 2nd Respondent’s council at the time and gave Ministerial Programmes. She relied specifically on 2 paragraphs on page 2 of the said circular, which read as follows:
13.1 “Colleges are to note that the recent submission related to the permanency of the contract staff associated with the delivery of Ministerial Programmes has been approved by the minister and is currently being implemented via the head office HRMA unit. The termination of existing contracts at this stage is likely to be counterproductive to this aim. The above should also apply to staff members appointed by College Councils currently associated with Ministerial Programmes.
13.2 In view of the above, this circular serves to place a Moratorium on the filling of any new vacant position(s) associated with the approved PPN model and standardized structure in TVET colleges, as well as the discontinuation of termination of existing contracts of staff delivering on Ministerial Programmes until due process around permanency of contract employees in such programmes and the PPN implementation is completed. Any existing recruitment drives are to be deferred until formal approval of the PPN Policy and Implementation Procedure Manual is published.”
14. They had taken the abovementioned circular to their supervisor, Ms Batela, who told them to consult HR for clarification. They then approached Mr Chamani, from HR, who informed them that their contracts would end on 31 December 2020. She was not satisfied and accordingly made an appointment with Mr Malindi, the Deputy Principle – Corporate Services of the College. She requested him to clarify the circular. He informed her that he had submitted the names of 15 lecturers and 1 support staff to the department for permanency. She then checked this with her contact at the DHET who stated that they cannot force Mr Chamani to give names. She then forwarded an e-mail to the principle of the college, Mr Phike, she requested him to intervene, however, he did not respond. After this she sent an e-mail to a Ms Williams, who is the head of the circular section of the DHET, who then instructed the college to answer. Mr Malindi then confirmed that they were replacement workers. They had also previously met with Ms Makhoka for clarification of the circular, who said that if their posts are advertised, they should apply.
15. Page 4 of A1 was departmental circular 40 of 2020, which purpose was to clarify circular 30 of 2020. The paragraphs she sought to rely on read as follows:
15.1 “It has come to the attention of the Department that some colleges have terminated contracts of staff delivering Ministerial Programmes, as well as continue to advertise or request to advertise posts related to the implementation of the PPN Model and standardized structure despite the issuing of Circular 30 of 2020. To clarify, the purposes of the moratorium outlined in circular 30 of 2020 is to ensure that:
15.2 All staff identified as offering Ministerial Programmes and therefore eligible for placement, migration or redeployment into posts in the standardized college structure are ring-fenced, and remain in the sector until the completion of the PPN implementation process. This relates to staff employed on both the college and Persal payrolls currently.
15.3 All posts with new “naming conventions / job titles” and functions related to posts on the standardized college structure are not to be recruited for, until the formal implementation processes for the PPN allocations and standardized structure begins.
15.4 Advertising of posts vacated by natural attrition must be processed as outlined in circular 30 of 2020 irrespective of the delegation associated with the post, to verify whether or not the proposed post to be advertised is deemed to be related to the new PPN model and standardized structure or not.”
15.5 In view of the above, this circular serves to reinforce and clarify the existing moratorium on the filling of any new vacant post(s) associated with the approved PPN model and standardized structure in TVET colleges, as well as the deferment of termination of existing contracts of staff delivering Ministerial Programmes, employed both via PERSAL and College payrolls, until due process around the PPN implementation is completed. Any existing recruitment drives relating to such posts are to be deferred until formal approval of the PPN Policy and Implementation Procedure Manual is published.”
16. Circular 40 of 2020 came out on 5 February 2021, after their employment had already been terminated. She believe that circular confirmed that the colleges should not continue to terminate their contacts. Mr Du Preez, the Campus Manager, had confirmed that their contracts would be renewed for 2 months from January 2021, he did not know why. He said HR would call them. Some were called and renewed.
17. She conceded that Circular 30 does not state that the 1st Respondent must absorb them, but she felt they should still have been there on a contract basis. She had high hopes of this. She agreed that as the post she filled was previously held by a person that had moved, it was a post that was already in the system. She agreed that any claim she may have would be against the 2nd Respondent and not the 1st Respondent.
MS NOBAHLE MYALELA
18. Ms Nobahle Myalela testified that she was a lecturer at the 2nd Respondent from 2018 to December 2020. She lectured Ministerial Programmes and was employed a contract lecturer. Her contact had been renewed a number of times, which lead her to believe that she would be made permanent. The renewals were as follows:
18.1 August to December 2018
18.2 April to May 2019
18.3 July to December 2019
18.4 January to June and then again from July to December 2020
19. Mr Du Preez had also told them that their contract would be renewed for 2 months from January 2021. She also believed that the circular (Circular 30 of 2020) indicate that they would be made permanent. She confirmed that they had gone to various persons seeking clarification. She believed that in terms of this circular, her contract should not have been terminated. Circular 40 of 2020 clarified the situation. The circulars had relieved her fears and she had a picture of her serving permanently as per the circular. Nothing in her contract indicated that she was a replacement.
20. She conceded that there was nothing in the circular stating that she would be made permanent, but she interpreted it to mean so. She believed that she was to be made permanent by the 1st Respondent. She confirmed that her contracts all had start and end dates. The last one confirmed that the employment relationship would terminate at the end of December 2020. The last position she was in was advertised in November 2020. She had queried this in line with the circular and was told to apply for the post, which she did. She was not sure what had happened thereafter. She agreed that the circular was issued by the 1st Respondent but felt it was for her employer, the 2nd Respondent. Mr Malindi had stated that their names had been submitted in terms of the circular. She believed that the 2nd Respondent should have appointed her permanently as per the instruction from the 1st Respondent, contained in the circular. She expected her contract to be renewed due to the number of renewals. The circular had increased this belief. She conceded that the renewals were to replace certain persons.
MR BRIGHTON MATSA
21. Mr Brighton Matsa testified that he had been a lecturer for the 2nd Respondent at their Queenstown campus from the 2nd semester in 2016 until December 2020. He had been on FTCs which were renewed a number of times. He acknowledged that there may have been breaks in between some contracts. His expectation was created by the awards he had won, Circular 30 of 2020 and the promise of a 2 month contract in 2021. The circular stated that contract staff should not be terminated, which triggered hope that they would not be going anywhere.
22. He was a contract worker and believed that he should have been retained until the process was finalised. He conceded that the records reflected that in 2016 he had one fixed term contract of 3 months to substitute for another lecturer. In 2017 he was on a fixed term contract for 4 months. His contracts did not run for the entire periods of the years mentioned, but rather for some months in the said years. His last contract was from 1 July 2020 until 31 December 2020, when it would automatically end. It was clear to him that his contract would end on the aforementioned date, but the circular had given him hope. It was the circular that made him feel that his termination was unfair. He did not expect to be made permanent, but to remain on contract at the 2nd Respondent as per the circular and then possibly become permanent with the 1st Respondent or 2nd Respondent.
RESPONDENTS’ CASE
MR MQONDISI BHIKISHA
23. Mr Mqondisi Bhikisha, the Deputy Principal of Academic Services, testified that he had been in the said position, with the 1st Respondent, since 2013. The Applicants were employed on fixed term contracts (FTCs) with start and end dates. Ms Myalela was hired as substitutes for a lecturers who had passed away. Ms Mrubata and Mr Matsa were hired as substitutes for a lecturers who had resigned. The 2nd Respondent needs to hire a temporary replacement, whilst it waits for the 1st Respondent to make permanent appointments.
24. The contracts required renewal as the permanent appointment had not yet been made and students could not be without a lecturer. The reason that the contracts were not renewed after December 2020 was that a permanent employee, at the Aliwal North campus, was transferred to the position held by Mr Matsa at the Queenstown campus. His old post in Aliwal North was advertised and filled by the 1st Respondent. The position that Ms Myalela held was filled by a permanent employee, from the Queen Nonezi campus, whose previous subject was phased out. Ms Mrubata post was advertised in November 2020 and was filled in January 2021, after the completion of the relevant process.
25. All the Applicants’ contracts had expired in December 2020. The positions they held were advertised for permanent recruitment and were filled after the termination of the Applicants’ contracts. Two of the positions were filled by transfers and one by an external candidate. The permanent filling of the positions was done by the 1st Respondent. The 2nd Respondent had filled the positions temporarily as a stop gap measure. If the Applicants were to be reinstated to the 2nd Respondent, it would result in an audit finding, as permanent appointments can only be done by the 1st Respondent and only if there was a vacancy and funding for the position.
26. If contracts had been renewed for the vacant positions, it would have been due to the fact that no permanent appointments had yet been made by the 1st Respondent. In relation to circular 30 of 2020, in 2019 there was a new Post Provision Norm (PPN) at TVET colleges. This effectively meant a new organogram. New posts were created on the organogram. The circular dealt with these new posts and not the prior existing posts. In 2015 there was a migration whereby the 1st Respondent became responsible for permanent appointments. As the colleges had previously appointed permanently, there were many discrepancies with salaries, etc. The 2019 PPN was the solution for this. He believed that the temporary positions, referred to in the circular, were critical positions on the new organogram that had been filled temporarily by the colleges due to the fact that the 1st Respondent had not yet made permanent appointments. The circular confirmed that it refers to new positions (New positions on the PPN) at the end of the 1st paragraph on page 2 where it states: ”In addition, it is noted that some colleges are terminating contracts relating to staff currently employed in posts associated with the delivery of Ministerial programmes and part of the new post establishments in line with the PPN model.” The circular was also issued by the 1st Respondent and if the permanent filling of the positions was not in line with their own circular, they would not have done so.
27. Paragraph 5, on page 2, of Circular 30 of 2020 read as follows: ”In order to ensure continuity on service delivery TVET Colleges are only allowed to advertise and fill only vacated critical positions through natural attrition in their current structures that must be in line with their 63% threshold. The critical nature of the positions that are to be filled must be aligned to the service delivery imperatives of the college. Furthermore, before any current existing funded position can be advertised the college must first obtain confirmation that the post(s) to be advertised exist on the PERSAL system because no appointment will be processed for any position(s) that do not already exist on the PERSAL system……” Lecturer positions were critical positions. PPN process were not a process of making temporary employees permanent. The posts that the Applicant’s filled were not new posts as per the new PPN.
MR LUNGA MALINDI
28. Ms Lunga Malindi, the Deputy Principle- Corporate Services, testified that he was employed by the 1st Respondent since 1 February 2020 and had occupied his current positions since then. Towards the end of 2020, the Applicants had approached him in relation to circular 30. They had a discussion about circular 30 as well as Section 198B of the LRA. He went into detail to explain it to them. Firstly, he read the circular with them and then he explained its’ crux to them. They wanted to know why the posts had been advertised whilst they were there as there was a moratorium. He explained the heading to them and that there positions were not new. Also that the circular referred to new positions, added by the PPN, and not old positions. He also explained the situation around the filling of new positions. The circular allowed them to fill existing posts on the old structure.
29. He had sent names of people who had migrated in 2015 to Pretoria. There were 12 of them and they therefore referred to them as the “disciples”. The Applicants were not part of this. These “disciples” names were sent to ensure that they were ring fenced as FTCs come and go. They should have been permanent, but were taken off PERSAL as they had exceeded the allocated funding. He had not told the Applicant’s that he had given their names as names were not usually given. The situation with the “disciples” was different and an exception, for reasons explained.
30. The Organisational Development Unit had confirmed that they were correct as to who was covered and not covered by the circular. The “disciples” were migrated in 2015. They were on FTCs and were accordingly migrated as such. In 2017 the process of making persons permanent had started, however, due to a lack of funding and issues with documentation, these 12 were not processed. The Applicants did not form part of this. The circular did not state that old existing positions could only be filled once the PPN process was finalised. Neither circular 30 nor the PPN were there to make the Applicants permanent.
ANALYSIS OF EVIDENCE AND ARGUMENT
31. This dispute has been referred as an unfair dismissal dispute. It is common cause that the Applicants were employed by the 2nd Respondent. Their dispute can therefore only be against the 2nd Respondent, as their employer, and not against the 1st Respondent, with whom no employment relationship existed. The Applicants have essentially based their case on an expectation of continued employment, which they seek to rely on various points in order to prove. The 2nd Respondent on the other hand disputes that any dismissal took place and bases this submission on a claim that the Applicants were on FTCs that came to an end as per the end date stipulated in the contracts.
32. Section 186(1)(b) of the Labour Relations Act 66 of 1995, as amended (“LRA”) states:
“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 period 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.”
33. Section 192 of the LRA states:
(1) “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal,
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”
34. The existence of a dismissal has been placed in dispute in this matter and as such the onus is on the Applicants to prove same. In an attempt to do so they rely on 3 points, which I will deal with hereunder.
Claim based on Circular 30 of 2020.
35. The Applicants claim that this circular entitled them to ongoing employment, either permanently or on extended fixed term contracts, after their contracts came to an end at the end of December 2020. The essence of this claim is that the aforementioned circular covered them and that the 2nd Respondent failed to comply therewith. The 2nd Respondent claims that the said circular did not apply to the Applicants.
36. The argument on this issue can be summarized in the following manner:
36.1 The Applicants claim that they were employed on fixed term contracts at the time that circular 30 came out. They were involved in delivering Ministerial Programmes and as such the said circular covers them. This circular, they argue, placed a moratorium on the termination of their contracts.
36.2 The 2nd Respondent claims that the Applicants are not covered by the said circular as their positions were not part of the new PPN, but rather part of the old structure. They argue that the circular is only applicable to new positions as per the new PPN structure.
37. To my mind, one needs to read the entire Circular 30 of 2020 in order to determine which, of the above submissions, is correct or the more probable one. On a proper and complete reading of the said circular, I am of the view that the Applicants seek to rely on certain wording, without viewing same in the context of the entire circular. I say this as a result of the following sections of the said circular:
37.1 The Heading of the circular reads: “MORATORIUM AND DEFERMENT ON THE FILLING OF ANY NEW VACANT POSITIONS AND THE TERMINATION OF CONTRACTS ASSOCIATED WITH THE POST PROVISIONING NORMS (PPN) MODEL AND STANDERDIZED COLLEGE STRUCTURE IN TECHNICAL AND VOCATIONAL EDUCATION AND TRAINING (TVET) COLLEGES.’ (Own underlining)
37.2 The second paragraph reads: “It has come to the attention of the Department that some of the TVET Colleges are currently advertising and filling newly created vacant posts in line with the approved PPN model allocation and standardised structure whilst the Department is still in the process of obtaining approval on the implementation policy and procedure manual. In addition, it is noted that some colleges are terminating contacts related to staff currently employed in posts associated with the delivery of Ministerial Programmes and part of the new post establishments in line with the PPN model.” (Own underlining)
38. To my mind the circular supports the contention, by the 2nd Respondent, that it is not dealing with Ministerial Programmes generally, but rather with Ministerial Programmes in terms of new positions as per the PPN. Even if I am wrong, in this regard, paragraph 6 of the said circular confirms that, despite the contents of the circular, TVET Colleges may still advertise and fill vacated critical positions through natural attrition in their current structures. The evidence before me is that the positions which the Applicants occupied were lecturer posts, which were critical. The posts were existing posts on the 2nd Respondent’s existing structure and had been vacated by natural attrition. Accordingly, the 2nd Respondent was entitled, in terms of circular 30 of 2020, to advertise and have the positions filled, which they did.
39. It is, in my view, further important to note that the Applicants filled positions that were permanent on the old structure and which had been vacated by natural attrition. As per the evidence lead, it is only the 1st Respondent that can make permanent replacements for these positions. Until such time as the 1st Respondent makes such permanent appointments, the 2nd Respondent is required to fill the post on a temporary basis in order to ensure proper service delivery. They also need to renew/extend such temporary contracts until such time as the 1st Respondent in fact fills the position. The positions were advertised on or about November 2020 and as such once they knew the positions would be filled on a permanent basis from January 2022, there was no need to extend the Applicants’ contracts further.
Claim based on continuous/repetitive renewals
40. The evidence shows that there were gaps between the Applicants’ contacts and that they were for specific reasons or that the contacts were extended due to the fact that position, the Applicants were brought in to cover, had not yet been replaced permanently by the 1st Respondent as yet. The contacts set out clearly that the work is on a replacement and/or contract basis and that they would automatically terminate on the end date sited. The evidence shows further that the Applicants had understood this and that they had not had any issue, in this regard, with previous renewals or extensions. It seem that it is Circular 30 of 2020, which changed their view and not the contracts themselves.
41. I do not believe that this is a situation where FTCs were used in order to avoid employing the Applicants permanently and the associated responsibility which would accompany same. As stated above, the 1st Respondent makes permanent appointments and not the 2nd Respondent. The 2nd Respondent can, however, not be without lecturers, until such time that the 1st Respondent makes the required appointments. This would result in an inability to deliver on the part of the 2nd Respondent. The FTCs and any renewals thereof, would therefore be justifiable. One should not lose sight of the fact that our law allows for fixed term contacts, but seeks to prevent the misuse of same. I believe that, in this current situation, the fixed term contracts were being used for permissible reasons. There was justifiable reasons why the Applicants were brought in on a FTC basis and why such contracts may have been extended. I also believe that the Applicants were aware of this as they are educated individuals and had signed for same.
Claim based on being informed that their contracts would be extended for 2 months.
42. The Applicants claim that they were told that their contracts would be extended for a period of 2 months. I find this to be improbable. I say this because Circular 30 of 2020 is dated 9 October 2020. The said circular makes no mention of time frames. Why would they be told that their contracts would be extended for 2 months specifically? If the drafters of the said circular could not give time frames, how would anyone else know that a 2 month extension would be required? As per the evidence, the posts were advertised in November 2020 already, for permanent appointment by the 1st Respondent. How would anyone know for sure how long such process would take? Why would the Applicants all be told they would receive a 2 month extension as they filled different posts, as such it would, in my view, be probable that the posts would be filled at different times (nor necessarily at the same time – at the end of 2 months). On the Applicants own version, when they queried the situation, HR had told them that their contracts would terminate at the end of December 2020. It is therefore unlikely that the Campus Manager would make such a promise, when HR clearly had a different view.
43. Based on the above, whilst I believe that the Applicants may have had a subjective expectation of the renewal of their contracts, based largely on their interpretation of Circular 30 of 2020, I do not believe that such subjective belief is based on objective facts.
44. The Applicants have accordingly failed to show that the termination of their fixed term contracts, or non- renewal thereof, amounted to a dismissal.
AWARD
45. The Applicants, Ms Nobahlele Myalela, Ms Zoleka Mrubata and Mr Brighton Matsa, have failed to show that the termination of their fixed term contracts, or non-renewal of same, amounted to a dismissal.
Name: Clint Enslin
(ELRC) Arbitrator