ELRC 604-20/21GP
Text
ELRC 604-20/21GP
Award Date:
18 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)
Held at Ekurhuleni, Gauteng
AWARD
Commissioner: Amos Mthimunye
Case No. ELRC 604-20/21GP
Date: 18 May 2022
IN THE DISPUTE BETWEEN:
NGWATO RUTH MAMABOLO APPLICANT
and
DEPARTMENT OF EDUCATION
- GAUTENG RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was set down as arbitration process at 10h00 on 28 February 2022, 08 April 2022 and 09 May 2022 at No. 78 Howard Avenue, Munpen Building, Benoni. The applicant, NGWATO RUTH MAMABOLO was present and represented by Mr Kyle Kietzman (Attorney), whilst the respondent was represented by Mr Peter Nkosi (Official).
[2] Both parties handed in bundles of documents in support of their case. The bundles were accepted and marked “A1”, “A2”, “A3”, “A4”, “A5” and “R”.
[3] The proceedings were digitally recorded and handwritten notes were also taken.
[4] Messrs Sebastian Khuzwayo and Musawenkosi Myeza of the ELRC rendered interpreting services.
BACKGROUND TO THE DISPUTE
[5] The applicant was employed by the respondent as Educator at Bedfordview High School. She was engaged on 01 July 2018 and dismissed on 31 December 2019 for unknown reasons. She is seeking compensation as a form of relief. The respondent is an education institution.
[6] The dispute remains unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995, amended, and (hereinafter referred to as “the LRA”).
[7] The respondent disputed that it dismissed the applicant. A ruling was already issued by the previous Commissioner to the effect that the applicant has in terms of Section 192(1) established existence of the dismissal.
[8] The applicant is challenging both the procedural and substantive fairness of her dismissal.
Narrowing of issues
[9] The parties held a pre-arb meeting, narrowed issues, prepared pre-arb minutes, signed and handed same to be incorporated as part of the record of these proceedings.
ISSUE TO BE DECIDED
[10] I must decide whether the applicant’s dismissal was fair or unfair.
[11] Appropriate relief, if any.
SURVEY OF EVIDENCE AND ARGUMENTS
Respondent’s Case
[12] The respondent’s witness, Mrs Ida Dhladhla testified under oath that she is employed by the respondent as Assistant Director. Her primary functions are to deal with conditions of service, recruitments, benefits and policies.
[13] She knows the applicant as an Educator who was employed by the respondent at Bedfordview High School since 2019. The applicant was employed as temporary Educator on a growth post for a period 01 January 2019 to 31 December 2019. She read into record a document from the bundle of documents in support of her testimony. The documents state the effective date as 01 January 2019 and end the date as 31 December 2019.
[14] According to the records of the respondent it employed the applicant on a growth post on temporary basis. The respondent did not dismiss the applicant because the contract period for which the applicant was appointed ended on 31 December 2019.
[15] The respondent paid the applicant 37% of her salary as service benefits because she did not qualify to be a member of the Government Employees Pension Fund (GEPF). The respondent paid the benefits direct to the applicant benefits such as pension contribution, housing allowance, and medical aid scheme.
[16] The respondent was a retired Educator and thus did not qualify to be a member of the GEPF Law as provided for in terms of Section 4 thereof. The applicant was at the time 63 years old, and thus could not be eligible to be a member of the Fund.
[17] The respondent did not appoint the applicant to a permanent post. The applicant completed a form for conversion from a temporary to a permanent post. The said form needs also to be completed and signed by the Principal of the school, the chairperson of the SGB and the cluster leader. The applicant completed the form alone.
[18] The respondent’s witness, Mr Mpho Tshisudi testified under oath that she is employed by the respondent as the Principal of Bedfordview High School. He knows the applicant as person who was employed by the respondent as an Educator for Afrikaans language at Bedfordview High School.
[19] The respondent had appointed the applicant on growth post as an Educator on a temporary basis. The growth post by its nature is a temporary post. The respondent did not employ the applicant on permanent basis because there was no permanent post at the school.
[20] He referred to the applicant’s referral (7.11) and disputed that the respondent employed the applicant on permanent basis and that the respondent dismissed her. The respondent did not subject the applicant to a disciplinary enquiry process. The Principal of the school does not have powers to expel an Educator.
[21] The respondent employed the applicant for a fixed term period effective from 01 January 2019 until 31 December 2019. It was the end of the contract period for the applicant was employed. It could not be dismissal because the contract period came to an end.
[22] In September 2019 he extracted a document on page 22 of bundle “R” to remind the applicant that her contract of employment with the respondent was coming to an end on 31 December 2019. The applicant refused to acknowledge receipt of the document. A similar document was extracted and given to all other Educators whose contract period of employment was coming to an end that year. The other Educators signed to acknowledge receipt of the reminder.
[23] After the applicant had refused to sign to acknowledge receipt of the document, he informed the district office about it. Subsequent to that the respondent served the applicant with a letter reminding her that her contract of employment was coming to an end in December 2019. The respondent served the applicant with a letter at her residential address as the applicant was off sick that time.
[24] The applicant completed and signed a conversion form from temporary to a permanent post without the knowledge of the SGB and the Principal. In the form there is a part that must be completed and signed by the Principal, the Chairperson of the SGB, and the Cluster Leader. Those parts of the form were not completed and signed by the relevant persons. Therefore the respondent did not appoint the applicant and / or convert her from a temporary post to a permanent post.
Applicants’ case
[25] The applicant, Ms Ngwato Ruth Mamabolo testified under oath that she started working for the respondent at Bedfordview High School in 2017. She referred to a document bundle in “A1” page 38 to show that she applied for temporary employment for a period of six (06) months. The document is dated 31 December 2017.
[26] She referred to a document on bundle “A1” page 41 as an application for conversion of contract from temporary to permanent. In 2018 she completed a form applying for conversion from a temporary to permanent appointment. Since then she did not receive any contract of employment from the respondent.
[27] She has never before seen a document on page 22 of bundle “R”. The respondent had never given her the said document. She could not explain what the document talks about because she saw it the first time at this arbitration hearing. She read the document into record. The heading reads: “Substitute appointment in the post of an Educator.” It further reads: “effective date 01 January 2019, end date 31 December 2019.”
[28] On 14 January 2020 the respondent sent to her cell phone a WhatsApp message that reads: “Please note that her contract of employment was until 31 December 2019.” When she received the WhatsApp message she was doing a follow up regarding the sick note regarding the suffering she went through.
[29] She referred to a document on bundle “A4” which she confirmed that is her payslip dated 30 April 2019. She read into record that her gross salary was R38 526.19. The respondent did not give her reason for the dismissal. The respondent did not subject her to a disciplinary hearing.
ANALYSIS OF EVIDENCE AND ARGUMENT
[30] Section 186(1)(a) of the LRA provides: “Dismissal means that an employer has terminated employment with or without notice”. The respondent disputed that it dismissed the applicant. However the respondent conceded that it terminated the employment relationship with the applicant without notice on 31 December 2019.
[31] There were two conflicting versions raised by the parties. The respondent on the one hand submitted and argued that it employed the applicant on a fixed term contract for a period from 01 January 2019 to 31 December 2019. The applicant on the other hand submitted and argued that the respondent terminated her services for no reason or for unknown reasons. The applicant submitted that the respondent employed her since July 2018.
[32] The respondent argued that the termination of the employment contract of the applicant does not constitute dismissal but that it was termination due to effluxion of time.
Section 186(1)(a) of the LRA defines dismissal as follows: “Dismissal means that- an employer has terminated employment with or without notice”.
I must say that the respondent had conceded through evidence that on 31 December 2019 there was termination of the employment relationship with the applicant.
[33] It was thus common cause that the employment relationship between the applicant and the respondent was terminated. The respondent argued that it did not in fact terminate the applicant’s services but that the applicant’s contract of employment lapsed or that it came to an end on 31 December 2019 or due to effluxion of time.
[34] It was common cause that the respondent did not issue the applicant with a notice to terminate the contract but that there was a WhatsApp message or communication that confirms that the applicant’s contract of employment came to an end on 31 December 2019. The said WhatsApp message in my view was a clear statement or communication regarding the respondent’s standpoint about their relationship with the applicant as at that time. This in itself in my view serves as a confirmation that the respondent had terminated the employment relationship with the applicant on 31 December 2019.
[35] Therefore fact that the there was an employment relationship between the parties herein, when the relationship came to an end it means the contract was terminated by the respondent without giving notice to the applicant. This view is in line with Section 186(1)(a) of the LRA. The respondent’s argument that there was no dismissal is thus misplaced because as a matter of fact the employment relationship between the parties was terminated or simply put, it came to an end. Therefore according to the circumstances herein there was dismissal as contemplated or as defined in Section 186(1)(a). Whether the dismissal was fair or unfair is another enquiry which I should also determine in this dispute.
[36] The evidence by the respondent which the applicant did not dispute was that she had retired at the age of 60 and that in terms of the Government Employee Pension Law she was not contributing towards the pension Fund but that such portion was paid by the respondent direct to her salary. The respondent relied on documentary evidence as proof. It was also not disputed by the applicant that she was employed to occupy a temporary post.
[37] There was evidence tendered by both parties that the applicant completed forms for conversion from a temporary post to a permanent post. I must say that this part of evidence supports the respondent’s contention that the applicant was employed on temporary basis or for a fixed term period. This part of evidence is also consistent with the undisputed evidence that the respondent employed the applicant on a growth post which by its nature is temporary.
[38] The fact that the applicant completed an application form for conversion shows that she was not employed on permanent basis but that she wanted that her appointment or employment be converted from temporary to permanent. It is unfortunate that the said form was completed and signed only by the applicant although it is a requirement that the form must also be completed by the Principal of the school, the School Governing Body (SGB) and Cluster Leader and / or senior official from the respondent.
[39] I must say that looking at the evidence of both parties in its totality I was persuaded to accept the version of the respondent for the following reasons: The applicant knew from the date she applied for the post that it was a growth or temporary post, and that she was not employable on permanent basis because she had retired and was a pensioner. The applicant did not contest the evidence of the respondent that it previously employed her as an Educator and that she retired and went on pension after reaching the retirement or pensionable age.
[40] The applicant argued that there was no written contract of employment that specified the period she was allegedly employed. Indeed the respondent did not produce any contract of employment as proof that it employed the applicant on a fixed term period. However the respondent relied on a document on bundle “R” page 22 to support argument that the applicant was employed for a fixed term period. It was clear from the said document that it specified 01 January 2019 as the effective date and 31 December 2019 as the end date. The document has personal details of the applicant. The applicant did not dispute the contents thereof save to mention that she disputed that she has seen the document before and / or that the respondent gave her the document at any given time before the commencement of this arbitration hearing.
[41] The applicant challenged both the procedural and substantive fairness of her dismissal. The applicant relied on the fact that the respondent did not give her a notice of termination. I am of the view that if the parties knew that their relationship was for a particular period it would not be necessary to notify or remind the other party that the relationship is coming to an end. The parties knew from the inception of the relationship what were the terms and conditions of that relationship. Thus I came to a conclusion that the dismissal of the applicant was procedurally fair.
[42] The applicant also argued that the respondent did not subject her to a disciplinary hearing and thus her dismissal was procedurally and substantively unfair. I was unfortunately not persuaded by this argument. My view is that there would be a disciplinary hearing only if there were allegations of misconduct levelled against the applicant. The case of the applicant does not fall under this category of dismissal but it purely falls under Section 186(1)(a) of the LRA.
[43] In light of the evidence herein above I came to a conclusion that the respondent has successfully discharged the onus to prove that the dismissal of the applicant was substantively fair. It was clear from the evidence of the respondent that the reason for dismissal was because the contract of employment came to an end. This is consistent with the fact that the respondent did not continue with the relationship after 31 December 2019.
[44] The respondent did not produce a written contract of employment to support its contention that it employed the applicant on a fixed term period. In the same breath the applicant did not produce any form of reliable evidence as proof to show that the respondent employed her for an indefinite period or permanent. I relied on the oral and documentary evidence of both parties which persuaded me to conclude that the respondent has on a balance of probabilities demonstrated that the employment relationship it had with the applicant was for a specified duration or fixed term period. In particular, the document on page 22 of bundle “R” was critical in that it specified a period 01 January 2019 to 31 December 2019. The said document talks about the applicant. The heading of the document is self-explanatory and it also confirms that it was “Substitute appointment in the post of an Educator”.
[45] I must say that the applicant shied away from confirming that the respondent employed her for an indefinite period. The applicant’s argument that it is not important that the respondent employed her on temporary or permanent basis was another way of avoiding to search the truth. It was important to also establish whether the respondent employed the applicant on permanent or temporary basis. This fact would answer what was the question what was the reason for the ending the employment relationship. One could not successfully determine whether the reason for termination was fair or unfair without establishing what the status of such employment relationship was. The evidence tendered by both parties weighs in favour of the respondent that the respondent employed the applicant for a fixed term and not for an indefinite period.
[46] In Smith and another v. Office of the Chief of Justice and others (2018) 39 ILJ 1357 (LC), the Court held that section 186 does not confer any rights or protections on employees, but that it merely defines ‘dismissal’. The application of section 186(1) (b)(ii) means no more than that an employee whose contract has not been renewed may assert the existence of a dismissal where he or she reasonably harbours an expectation of indefinite employment. Whether or not the dismissal so established is fair, is a separate enquiry. The evidence in this case showed that the applicant, Ms Mamabolo was dismissed for a reason that the fixed term or duration agreed upon lapsed. Therefore, I conclude that in this case it was not just the dismissal of the applicant but it was a termination of the fixed term contract of employment due to effluxion of time.
[47] The applicant sought a relief that the respondent must pay her compensation equivalent to a maximum of twelve (12) months. In light of the fact that the respondent has succeeded to discharge the onus that the dismissal of the applicant was procedurally and substantively fair, I am satisfied that the applicant is not entitled to any relief.
AWARD
[48] The dismissal of the applicant was both procedurally and substantively fair.
[49] The applicant is not awarded any relief she sought.
Amos Mthimunye
PANELIST
Held at Ekurhuleni, Gauteng
AWARD
Commissioner: Amos Mthimunye
Case No. ELRC 604-20/21GP
Date: 18 May 2022
IN THE DISPUTE BETWEEN:
NGWATO RUTH MAMABOLO APPLICANT
and
DEPARTMENT OF EDUCATION
- GAUTENG RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was set down as arbitration process at 10h00 on 28 February 2022, 08 April 2022 and 09 May 2022 at No. 78 Howard Avenue, Munpen Building, Benoni. The applicant, NGWATO RUTH MAMABOLO was present and represented by Mr Kyle Kietzman (Attorney), whilst the respondent was represented by Mr Peter Nkosi (Official).
[2] Both parties handed in bundles of documents in support of their case. The bundles were accepted and marked “A1”, “A2”, “A3”, “A4”, “A5” and “R”.
[3] The proceedings were digitally recorded and handwritten notes were also taken.
[4] Messrs Sebastian Khuzwayo and Musawenkosi Myeza of the ELRC rendered interpreting services.
BACKGROUND TO THE DISPUTE
[5] The applicant was employed by the respondent as Educator at Bedfordview High School. She was engaged on 01 July 2018 and dismissed on 31 December 2019 for unknown reasons. She is seeking compensation as a form of relief. The respondent is an education institution.
[6] The dispute remains unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995, amended, and (hereinafter referred to as “the LRA”).
[7] The respondent disputed that it dismissed the applicant. A ruling was already issued by the previous Commissioner to the effect that the applicant has in terms of Section 192(1) established existence of the dismissal.
[8] The applicant is challenging both the procedural and substantive fairness of her dismissal.
Narrowing of issues
[9] The parties held a pre-arb meeting, narrowed issues, prepared pre-arb minutes, signed and handed same to be incorporated as part of the record of these proceedings.
ISSUE TO BE DECIDED
[10] I must decide whether the applicant’s dismissal was fair or unfair.
[11] Appropriate relief, if any.
SURVEY OF EVIDENCE AND ARGUMENTS
Respondent’s Case
[12] The respondent’s witness, Mrs Ida Dhladhla testified under oath that she is employed by the respondent as Assistant Director. Her primary functions are to deal with conditions of service, recruitments, benefits and policies.
[13] She knows the applicant as an Educator who was employed by the respondent at Bedfordview High School since 2019. The applicant was employed as temporary Educator on a growth post for a period 01 January 2019 to 31 December 2019. She read into record a document from the bundle of documents in support of her testimony. The documents state the effective date as 01 January 2019 and end the date as 31 December 2019.
[14] According to the records of the respondent it employed the applicant on a growth post on temporary basis. The respondent did not dismiss the applicant because the contract period for which the applicant was appointed ended on 31 December 2019.
[15] The respondent paid the applicant 37% of her salary as service benefits because she did not qualify to be a member of the Government Employees Pension Fund (GEPF). The respondent paid the benefits direct to the applicant benefits such as pension contribution, housing allowance, and medical aid scheme.
[16] The respondent was a retired Educator and thus did not qualify to be a member of the GEPF Law as provided for in terms of Section 4 thereof. The applicant was at the time 63 years old, and thus could not be eligible to be a member of the Fund.
[17] The respondent did not appoint the applicant to a permanent post. The applicant completed a form for conversion from a temporary to a permanent post. The said form needs also to be completed and signed by the Principal of the school, the chairperson of the SGB and the cluster leader. The applicant completed the form alone.
[18] The respondent’s witness, Mr Mpho Tshisudi testified under oath that she is employed by the respondent as the Principal of Bedfordview High School. He knows the applicant as person who was employed by the respondent as an Educator for Afrikaans language at Bedfordview High School.
[19] The respondent had appointed the applicant on growth post as an Educator on a temporary basis. The growth post by its nature is a temporary post. The respondent did not employ the applicant on permanent basis because there was no permanent post at the school.
[20] He referred to the applicant’s referral (7.11) and disputed that the respondent employed the applicant on permanent basis and that the respondent dismissed her. The respondent did not subject the applicant to a disciplinary enquiry process. The Principal of the school does not have powers to expel an Educator.
[21] The respondent employed the applicant for a fixed term period effective from 01 January 2019 until 31 December 2019. It was the end of the contract period for the applicant was employed. It could not be dismissal because the contract period came to an end.
[22] In September 2019 he extracted a document on page 22 of bundle “R” to remind the applicant that her contract of employment with the respondent was coming to an end on 31 December 2019. The applicant refused to acknowledge receipt of the document. A similar document was extracted and given to all other Educators whose contract period of employment was coming to an end that year. The other Educators signed to acknowledge receipt of the reminder.
[23] After the applicant had refused to sign to acknowledge receipt of the document, he informed the district office about it. Subsequent to that the respondent served the applicant with a letter reminding her that her contract of employment was coming to an end in December 2019. The respondent served the applicant with a letter at her residential address as the applicant was off sick that time.
[24] The applicant completed and signed a conversion form from temporary to a permanent post without the knowledge of the SGB and the Principal. In the form there is a part that must be completed and signed by the Principal, the Chairperson of the SGB, and the Cluster Leader. Those parts of the form were not completed and signed by the relevant persons. Therefore the respondent did not appoint the applicant and / or convert her from a temporary post to a permanent post.
Applicants’ case
[25] The applicant, Ms Ngwato Ruth Mamabolo testified under oath that she started working for the respondent at Bedfordview High School in 2017. She referred to a document bundle in “A1” page 38 to show that she applied for temporary employment for a period of six (06) months. The document is dated 31 December 2017.
[26] She referred to a document on bundle “A1” page 41 as an application for conversion of contract from temporary to permanent. In 2018 she completed a form applying for conversion from a temporary to permanent appointment. Since then she did not receive any contract of employment from the respondent.
[27] She has never before seen a document on page 22 of bundle “R”. The respondent had never given her the said document. She could not explain what the document talks about because she saw it the first time at this arbitration hearing. She read the document into record. The heading reads: “Substitute appointment in the post of an Educator.” It further reads: “effective date 01 January 2019, end date 31 December 2019.”
[28] On 14 January 2020 the respondent sent to her cell phone a WhatsApp message that reads: “Please note that her contract of employment was until 31 December 2019.” When she received the WhatsApp message she was doing a follow up regarding the sick note regarding the suffering she went through.
[29] She referred to a document on bundle “A4” which she confirmed that is her payslip dated 30 April 2019. She read into record that her gross salary was R38 526.19. The respondent did not give her reason for the dismissal. The respondent did not subject her to a disciplinary hearing.
ANALYSIS OF EVIDENCE AND ARGUMENT
[30] Section 186(1)(a) of the LRA provides: “Dismissal means that an employer has terminated employment with or without notice”. The respondent disputed that it dismissed the applicant. However the respondent conceded that it terminated the employment relationship with the applicant without notice on 31 December 2019.
[31] There were two conflicting versions raised by the parties. The respondent on the one hand submitted and argued that it employed the applicant on a fixed term contract for a period from 01 January 2019 to 31 December 2019. The applicant on the other hand submitted and argued that the respondent terminated her services for no reason or for unknown reasons. The applicant submitted that the respondent employed her since July 2018.
[32] The respondent argued that the termination of the employment contract of the applicant does not constitute dismissal but that it was termination due to effluxion of time.
Section 186(1)(a) of the LRA defines dismissal as follows: “Dismissal means that- an employer has terminated employment with or without notice”.
I must say that the respondent had conceded through evidence that on 31 December 2019 there was termination of the employment relationship with the applicant.
[33] It was thus common cause that the employment relationship between the applicant and the respondent was terminated. The respondent argued that it did not in fact terminate the applicant’s services but that the applicant’s contract of employment lapsed or that it came to an end on 31 December 2019 or due to effluxion of time.
[34] It was common cause that the respondent did not issue the applicant with a notice to terminate the contract but that there was a WhatsApp message or communication that confirms that the applicant’s contract of employment came to an end on 31 December 2019. The said WhatsApp message in my view was a clear statement or communication regarding the respondent’s standpoint about their relationship with the applicant as at that time. This in itself in my view serves as a confirmation that the respondent had terminated the employment relationship with the applicant on 31 December 2019.
[35] Therefore fact that the there was an employment relationship between the parties herein, when the relationship came to an end it means the contract was terminated by the respondent without giving notice to the applicant. This view is in line with Section 186(1)(a) of the LRA. The respondent’s argument that there was no dismissal is thus misplaced because as a matter of fact the employment relationship between the parties was terminated or simply put, it came to an end. Therefore according to the circumstances herein there was dismissal as contemplated or as defined in Section 186(1)(a). Whether the dismissal was fair or unfair is another enquiry which I should also determine in this dispute.
[36] The evidence by the respondent which the applicant did not dispute was that she had retired at the age of 60 and that in terms of the Government Employee Pension Law she was not contributing towards the pension Fund but that such portion was paid by the respondent direct to her salary. The respondent relied on documentary evidence as proof. It was also not disputed by the applicant that she was employed to occupy a temporary post.
[37] There was evidence tendered by both parties that the applicant completed forms for conversion from a temporary post to a permanent post. I must say that this part of evidence supports the respondent’s contention that the applicant was employed on temporary basis or for a fixed term period. This part of evidence is also consistent with the undisputed evidence that the respondent employed the applicant on a growth post which by its nature is temporary.
[38] The fact that the applicant completed an application form for conversion shows that she was not employed on permanent basis but that she wanted that her appointment or employment be converted from temporary to permanent. It is unfortunate that the said form was completed and signed only by the applicant although it is a requirement that the form must also be completed by the Principal of the school, the School Governing Body (SGB) and Cluster Leader and / or senior official from the respondent.
[39] I must say that looking at the evidence of both parties in its totality I was persuaded to accept the version of the respondent for the following reasons: The applicant knew from the date she applied for the post that it was a growth or temporary post, and that she was not employable on permanent basis because she had retired and was a pensioner. The applicant did not contest the evidence of the respondent that it previously employed her as an Educator and that she retired and went on pension after reaching the retirement or pensionable age.
[40] The applicant argued that there was no written contract of employment that specified the period she was allegedly employed. Indeed the respondent did not produce any contract of employment as proof that it employed the applicant on a fixed term period. However the respondent relied on a document on bundle “R” page 22 to support argument that the applicant was employed for a fixed term period. It was clear from the said document that it specified 01 January 2019 as the effective date and 31 December 2019 as the end date. The document has personal details of the applicant. The applicant did not dispute the contents thereof save to mention that she disputed that she has seen the document before and / or that the respondent gave her the document at any given time before the commencement of this arbitration hearing.
[41] The applicant challenged both the procedural and substantive fairness of her dismissal. The applicant relied on the fact that the respondent did not give her a notice of termination. I am of the view that if the parties knew that their relationship was for a particular period it would not be necessary to notify or remind the other party that the relationship is coming to an end. The parties knew from the inception of the relationship what were the terms and conditions of that relationship. Thus I came to a conclusion that the dismissal of the applicant was procedurally fair.
[42] The applicant also argued that the respondent did not subject her to a disciplinary hearing and thus her dismissal was procedurally and substantively unfair. I was unfortunately not persuaded by this argument. My view is that there would be a disciplinary hearing only if there were allegations of misconduct levelled against the applicant. The case of the applicant does not fall under this category of dismissal but it purely falls under Section 186(1)(a) of the LRA.
[43] In light of the evidence herein above I came to a conclusion that the respondent has successfully discharged the onus to prove that the dismissal of the applicant was substantively fair. It was clear from the evidence of the respondent that the reason for dismissal was because the contract of employment came to an end. This is consistent with the fact that the respondent did not continue with the relationship after 31 December 2019.
[44] The respondent did not produce a written contract of employment to support its contention that it employed the applicant on a fixed term period. In the same breath the applicant did not produce any form of reliable evidence as proof to show that the respondent employed her for an indefinite period or permanent. I relied on the oral and documentary evidence of both parties which persuaded me to conclude that the respondent has on a balance of probabilities demonstrated that the employment relationship it had with the applicant was for a specified duration or fixed term period. In particular, the document on page 22 of bundle “R” was critical in that it specified a period 01 January 2019 to 31 December 2019. The said document talks about the applicant. The heading of the document is self-explanatory and it also confirms that it was “Substitute appointment in the post of an Educator”.
[45] I must say that the applicant shied away from confirming that the respondent employed her for an indefinite period. The applicant’s argument that it is not important that the respondent employed her on temporary or permanent basis was another way of avoiding to search the truth. It was important to also establish whether the respondent employed the applicant on permanent or temporary basis. This fact would answer what was the question what was the reason for the ending the employment relationship. One could not successfully determine whether the reason for termination was fair or unfair without establishing what the status of such employment relationship was. The evidence tendered by both parties weighs in favour of the respondent that the respondent employed the applicant for a fixed term and not for an indefinite period.
[46] In Smith and another v. Office of the Chief of Justice and others (2018) 39 ILJ 1357 (LC), the Court held that section 186 does not confer any rights or protections on employees, but that it merely defines ‘dismissal’. The application of section 186(1) (b)(ii) means no more than that an employee whose contract has not been renewed may assert the existence of a dismissal where he or she reasonably harbours an expectation of indefinite employment. Whether or not the dismissal so established is fair, is a separate enquiry. The evidence in this case showed that the applicant, Ms Mamabolo was dismissed for a reason that the fixed term or duration agreed upon lapsed. Therefore, I conclude that in this case it was not just the dismissal of the applicant but it was a termination of the fixed term contract of employment due to effluxion of time.
[47] The applicant sought a relief that the respondent must pay her compensation equivalent to a maximum of twelve (12) months. In light of the fact that the respondent has succeeded to discharge the onus that the dismissal of the applicant was procedurally and substantively fair, I am satisfied that the applicant is not entitled to any relief.
AWARD
[48] The dismissal of the applicant was both procedurally and substantively fair.
[49] The applicant is not awarded any relief she sought.
Amos Mthimunye
PANELIST