ELRC485-21/22GP
Text
ELRC485-21/22GP
Award Date:
06 July 2022
ARBITRATION AWARD
Panellist: Asnath Sedibane
Case No: ELRC485-21/22GP
Date of Award: 06 July 2022
In the ARBITRATION between:
ANNA NELISIWE MALINDI
(Union / Applicant)
and
DEPARTMENT OF EDUCATION OF GAUTENG
(Respondent)
Union/Applicant’s representative: Advocate N Deeplal (Legal Representative)
Union/Applicant’s address: Telephone:
Telefax:
Email:
Respondent’s representative: Mr M Zathu
Respondent’s address:
Telephone:
Telefax:
Email:
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between Anna Nelisiwe Malindi and the Department of Education of Gauteng was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration on 19 January 2022, 07 June 2022 and 15 June 2022.
2. The leading of oral evidence was concluded on the 15th of June 2022 and it was agreed between the parties and the Panellist that the parties would submit their written closing arguments by no later than the 22nd of June 2022. The applicant did submit their closing arguments on 22 June 2022. The respondent requested for an extension until 28 June 2022 to submit closing arguments. This was due to the respondent having had two representatives and the second representative having to familiarize himself with the evidence that was led before he took over the arbitration. Based on that, I granted the extension and the respondent did submit their closing arguments on 28 June 2022. The proceedings were conducted in English and were manually and digitally recorded.
3. The applicant was present and was represented by Advocate N Deeplal, a Legal Representative. The Respondent was represented first by Mr Nawa, an official of the Department of Education of Gauteng and when Mr Nawa could not proceed with the arbitration, Mr M Zathu, an official of the Department of Education of Gauteng represented the respondent.
4. The Applicant submitted a bundle of documents which was marked bundle “A” and the Respondent did not submit any documents.
5. Mr Musa Myeza, an Interpreter from the ELRC assisted with interpretation for witnesses that requested interpretation services.
PRELIMINARY ISSUES
6. No preliminary issues were raised by either of the parties.
ISSUES TO BE DECIDED
7. The dispute was referred to the ELRC by the applicant as an Alleged Unfair Dismissal in terms of section 186(1) (b) of the Labour Relations Act 66 of 1995.
8. I was required to determine whether the applicant was dismissed by the respondent and if I find that the applicant was dismissed, I was required to determine whether the dismissal was fair.
BACKGROUND TO THE DISPUTE
9. The applicant, Ms Malindi was employed as an educator on a number of fixed term contracts from 03 March 2020 with the last contract having expired on 31 August 2021.
10. It was agreed by the parties that the following was common cause between them:
10.1 The applicant, Ms Malindi was appointed by the respondent on fixed term contracts from 03 March 2020 until 31 August 2021.
10.2 In September 2020, the respondent had employed rotational teachers due to the Covid-19 pandemic. Mr Kekana was one of the rotational teachers that were appointed.
11. The parties agreed that the following were issues in dispute:
11.1 Whether or not the applicant had been dismissed.
11.2 Whether the Policies of the Department were followed correctly in the appointment of Mr Kekana.
11.3 Whether the respondent in appointing Mr Kekana complied with the LRA, EEA and clause 7.4.5 of the PPN Circular No. 15 of 2020.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Ms Anna Nelisiwe Malindi testified under oath as follows:
12. She is thirty (30) years old.
13. She has the following qualifications: B Ed in intermediate and senior phase. She has specialised in Maths, isiZulu and English.
14. She has worked as an educator at Zakheni Primary School from March 2020 until September 2021.
15. When the Covid-19 pandemic started, more teachers were employed on a rotational basis at the school.
16. There was a meeting at the school in December 2020 where the Principal, Mr Mnguni told the staff that the principle of first in last out would apply to fill in available posts.
17. The Principal also announced that Mr Ramponi would fill in the position of the teacher who was deceased. Mr Sithole would fill in the HOD post and the applicant would fill in the second deputy principal post as the school qualified to have a second Deputy Principal.
18. When schools reopened in January 2021, they were told about the available posts. It was said that the applicant, Mr Sithole and Ms Mthethwa would fill in the posts.
19. She had signed a contract in December 2020 in the substantive post of Deputy Principal.
20. She had taught English & Life Skills in 2020 in the post of Ms Masehe and she taught Social Science Grade 6 and Natural Science Grade 7 in the post of Mr Tshabalala. In 2021 she had taught Zulu.
21. Mr Kekana had joined the school in September 2020. He had said that it was his first teaching job. She had more experience than Mr Kekana because she had joined the school first.
22. She had taught Social Science at the school in 2020 whilst Mr Kekana had not taught it before he was appointed in the post.
23. She had lodged a grievance but had never received the outcome thereof.
24. In 2020 the principle that was used for appointment at the school was LAST IN FIRST OUT (LIFO). This was not applied in 2021.
25. Under cross-examination Ms Malindi confirmed that she did not teach Social Science in 2021.
26. She had not majored in Social Science at University but she had studied it, meaning that she knew it. She confirmed that Mr Kekana had majored in Social Science.
27. She was better suited for the post than Kekana because she had taught Social Science in 2020.
28. She did understand that she was appointed against a promotional post of second Deputy Principal. She also understood that if the Deputy Principal was to be appointed internally she would permanent but if an external appointment was done then she would be out of the post.
29. The second Deputy Principal had been appointed externally.
The applicant’s second witness, Mr Silomo Clarence Khumalo testified under oath as follows:
30. He took the initiative to engage the respondent on the issue of the applicant after she told him about the issue.
31. He sent a number of emails to Mr Nawa but there was no response.
32. The applicant was dismissed as a result of the respondent’s failure to act on the issue.
33. Mr Nawa had called him to ask if the applicant was willing to disclose her identity and he had confirmed this but there was no response to subsequent emails.
34. Under cross-examination Mr Khumalo disputed that Mr Nawa had told him that this was a labour matter on which the respondent needed to deal directly with the applicant.
THE RESPONDENT`S CASE:
The respondent’s first witness, Ms Julia Patricia Sibiya testified under oath that:
35. She is the Principal of Zakheni Primary School and she has been in this position as from 01 April 2022. Before then she was the Deputy Principal at the same school.
36. The applicant had been appointed at the school on contract in April 2020 and the contract was to expire in March 2021.
37. The applicant had been appointed to replace Miss Masehe who was on a long period of sick leave.
38. The applicant taught Life Skills and English grade 5.
39. The applicant’s initial contract at the school expired on 18 March 2020 because of Covid-19.
40. In August 2020 the then Principal, Mr Mnguni phoned the applicant and asked her to return to the school. The applicant had been brought back under the pretence that she would be teaching English and Life Skills in grade 5.
41. The applicant was not suitable to teach Social Science because she did not do Geography and History in Matric and she did not major in these subjects at University.
42. The applicant had signed a contract before 15 December 2020 to act against a Deputy Principal Post which had been allocated to the school. She had started acting in this post in February 2021.
43. Mr Kekana had come to the school on a rotational post in September 2020. He taught isiZulu and Social Science. Kekana had concluded a contract with the Department until 31 March 2021.
44. Kekana had been appointed in the substantive vacant post because he had majored in Geography and History at University and he was in the system in January 2021. According to Circular 4, an educator who was not in the system in January could not be appointed.
45. The difference between Kekana and Malindi was that Mr Kekana had been in a rotational post whilst Ms Malindi had been in a promotional post.
46. Kekana had been appointed in the post of Mashaba who was appointed HOD at the school. Malindi could not be absorbed because a Deputy Principal had been appointed externally.
47. The applicant had lodged a grievance when Ms Mahlangu was appointed. She had contended that she had come first before Ms Mahlangu. Mahlangu had taught in the foundation phase whereas Malindi had taught in the intermediate and senior phases.
48. Under cross-examination, Ms Sibiya disputed the version that she had called the Zulu speaking educators at the school with her own cell phone when she had attended to the grievance meeting of Ms Malindi at the District Office.
49. She did not know the subjects that Ms Malindi had taught in August 2020 when she returned to the school after her contract had ended in March 2020.
50. She did not know that the applicant had taught social and natural science in grades 6 & 7.
51. The curriculum needs of the school at the time Kekana was appointed were isiZulu and Social Science.
52. Circular 4 and the Employment of Educators Act set the conditions of employment of educators.
53. Kekana’s Curriculum Vitae stated that he had taught social science and he had been employed by the district before he came to the school.
54. The Human Resource (HR) section considered curriculum needs of the school, the subjects of the educators in Matric and at University when making appointments.
55. Ms Sithole had been appointed in line with the curriculum needs of the school. She had taught Mathematics and had majored in the subject at University. She disputed that Ms Malindi had also majored in Mathematics.
The respondent’s second witness, Mr Nkosana Maxwell Masheula testified under oath as follows:
56. He is the IDSO cluster leader in cluster 1 of the Gauteng Department of Education.
57. His duties include providing end to end educational support to schools using the cluster system.
58. He is also responsible for co-ordination and facilitation.
59. The role that he plays in recruitment is that when a school has a vacancy, he advises the Principal of the school to fill in and submit a GDE 79 form. The Principal consults the SMT to do a thorough analysis of the school’s curriculum needs.
60. Zakheni Primary school had filled the GDE 79 in respect of the appointment of Ms Malindi and Mr Kekana. Ms Malindi was a substitute teacher in 2020 whilst Mr Kekana was a rotational teacher.
61. Kekana was later appointed in a vacant substantive post. Ms Malindi had been offering English and Life Skills at the time. Kekana was offering isiZulu and Social Science.
62. Malindi’s contract had ended at the end of August 2021.
63. Under cross-examination, Mr Masheula stated that he was not aware that the applicant had taught Social Science for six months at Zakheni Primary School.
64. He confirmed that he was aware that Ms Malindi had majored in Maths and Technology, according to her academic record.
65. He was not in a position to say whether a course done at University was a crush course or a major. This would be determined by SAQA.
66. He was not aware that the applicant had been paid a salary for December 2020 and January 2021.
The respondent’s third witness, Ms Michelle Tswelelo Mashego testified under oath as follows:
67. She is a Chief Personnel Officer for the Gauteng Department of Education.
68. Her duties include the monitoring of post establishment for the District and Schools.
69. She had received a query from head office with regards to Ms Malindi. She was asked why she had appointed Ms Mahlangu instead of Ms Malindi.
70. At the time of the appointment of Ms Mahlangu, the school had filled in a GED 79 which specified that the needs of the school were isiZulu teacher for the foundation phase. Ms Mahlangu was qualified to teach the foundation phase whereas Ms Malindi’s qualification was for the intermediate phase.
71. Mr Kekana had been appointed in a vacant substantive post and Ms Malindi was in another post. Both Kekana and Malindi had started at the school as temporary teachers in 2020.
72. In 2021 the school had submitted a GED79 indicating that the needs of the school was an educator who taught isiZulu and social science in grade 7.
73. She had asked if there were any educators at the school teaching these subjects. Kekana had been teaching isiZulu and Social Science. Malindi was teaching Life Skills and English.
74. When she looked at the profiles, she did not see any problem in appointing Kekana.
75. Under cross-examination, Ms Mashego confirmed that appointments were done by the District Director based on the recommendations of Human Resources.
76. She confirmed that HR considers the academic record and the GED79 when making the recommendations.
77. She confirmed that if a teacher had done a subject at University and they also taught the subject for six months, they would be considered for appointment over someone who had not taught the subject.
78. She disputed that Kekana had not taught Social Science at the school before he was appointed.
79. She also disputed that Ms Malindi had majored in Mathematics. As far as she knew, Malindi had majored in English and Life Skills.
80. Ms Sibiya had indicated that Kekana was teaching isiZulu and Social Science and that Malindi was teaching Life Skills and English.
ANALYSIS OF EVIDENCE AND ARGUMENTS
81. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
82. The applicant has referred an unfair dismissal dispute to the ELRC. The applicant’s case is premised on section 186 (1) (b) of the Labour Relations Act 66 of 1995 which reads as follows:
Section 186
Meaning of dismissal and unfair labour practice:
(1) Dismissal means that-
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer –
(i) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed- term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
83. The respondent has disputed that the applicant was dismissed and has contended that her fixed-term contract ended at the end of August 2021.
84. Since there was a dispute on whether or not the applicant had been dismissed, the onus to prove the alleged dismissal in this case rested with the applicant.
85. It was the applicant’s contention that she was dismissed by the respondent when she was not appointed in a permanent position. According to the applicant the respondent was supposed to apply the principle of LIFO (Last in first out) when filling the vacant position of a post level 1 educator in which one Mr Kekana was appointed. Mr Mnguni the School Principal at Zakheni Primary School in 2020 is alleged to have made an indication in a staff meeting that the LIFO principle would be applied in respect of the applicant when vacancies became available. It should be noted that Mr Mnguni was not called to testify at the arbitration and none of the attendees of the said meeting were called to testify regarding the promise by Mr Mnguni regarding the permanent appointment of the applicant.
86. It is further the contention of the applicant that she was the more suitable candidate for the position in which Mr Kekana was appointed because she had taught Social Science for six months in 2020 at Zakheni Primary School. The applicant other than making the oral submission that she had taught Social Science in 2020, did not present any evidence to prove this contention.
87. Ms Sibiya who testified for the respondent stated that the curriculum needs of the school when the PL1 post was filled in 2021 was Social Science and isiZulu in grade 7. When the GED79 form that was completed to request for the filling of the vacant post by the District Office, the curriculum needs were specified on the form. Both Ms Malindi and Mr Kekana were considered for the post and Mr Kekana was recommended as the most suitable candidate since he had majored in Geography and History at tertiary level and had also done these subjects in Matric.
88. Mr Masheula, outlined the process of recruitment of educators and specifically how the GED79 form would be compiled by the School Principal after consulting the School Management Team (SMT). He confirmed that the applicant’s fixed-term contract was terminated when a Deputy Principal was appointed externally. The applicant had occupied the promotional post of second Deputy Principal at Zakheni Primary School when the permanent appointment of the second Deputy Principal was made.
89. Ms Mashego’s evidence corroborated the evidence of Ms Sibiya and Mr Masheula in respect of the curriculum needs of the school at the time of the filling of the substantive PL1 educator post in 2021. Ms Mashego further confirmed that when the post was filled, the temporary educators at the school, including the applicant, Ms Malindi were taken into consideration and that Mr Kekana was found to be better suited for appointment in the position since he had taught Social Science and isiZulu and he had majored in those subjects at University.
90. All three of the respondent’s witnesses testified that they were not aware of the applicant having taught Social Science for six months at Zakheni Primary School in 2020. Ms Mashego further testified that when considering the profiles of Malindi and Kekana, she had found that Kekana had taught Social Science and this was not reflected on Malindi’s profile.
91. The onus to prove whether there was dismissal in terms of section 186(1) (b) in circumstances where a fixed-term contract was not renewed or was renewed on less favourable terms, in each case rests with the applicant who alleges such dismissal. The Labour Court in Member of the Executive Council for the Department of Finance Eastern Cape v Milander & Others(2011)32 ILJ 2521 (LC) summarised the approach adopted in determining whether a reasonable expectation of renewal of a fixed-term contract has been established. The court held in this case that such a test involved a dual inquiry. The first inquiry is a subjective one and entails enquiring into the subjective basis upon which an employee contends that his/her contract ought to have been renewed. If the employee fails to show that he/she had a reasonable expectation that his/her contract would be renewed then that brings the inquiry to an end.
However if the employee succeeds in showing that he/she subjectively expected that his/her fixed-term contract would be renewed then the second enquiry entails a determination of the existence of such expectation on the basis of the objective facts that existed prior to the termination of the contract.
92. The applicant in this case contends that she had been promised permanent appointment by the former School Principal, Mr Mnguni, based on the LIFO principle. The applicant merely states this as a fact, without any evidence to corroborate her evidence that she had a reasonable expectation of either permanent appointment or renewal of the fixed term contract. The applicant, by her own admission knew when she occupied the vacant post of second Deputy Principal on a temporary basis, that should the post be filled externally then her fixed-term contract would immediately come to end since there would not be another vacant post at the school.
93. The LAC in South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others [2008] 9 BLLR 845 (LAC) in paragraph 43 states as follows: “What section 186 (1) (b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it . The operative terms of section 186(1) (b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed term contract or renew it on less favourable terms. The fixed- term contract should also be capable of renewal.” It is common cause in the current matter that the applicant was on a month to month contract, subject to the filling of the promotional post against which she was temporarily appointed. It therefore follows that upon the promotional post being filled, the applicant’s temporary post ceases to exist. There can therefore not be any reasonable expectation that the applicant’s contract would be renewed or that she would be retained indefinitely in that post.
94. The applicant submits in her closing arguments that she was also subjected to unfair labour practice when she was not appointed in the vacant substantive post. The submission by the applicant in this regard is that her “transfer” from the promotional post to the substantive post would have amounted to a promotion. It must be noted that the dispute that the applicant referred to the ELRC is alleged unfair dismissal. I will therefore not deal with the allegations of unfair dismissal as this is a different dispute that would require a separate referral.
95. It is common cause that the recruitment process of the respondent is based on legislation and prescripts. The respondent led evidence that the GED79 form in respect of the filling of the substantive PL1 post was completed based on the curriculum needs of the school.
Mr Kekana was appointed after the considerations of the requirements of the post and the profiles of the temporary teachers at the school, including the applicant.
96. The Labour Appeal Court in Enforce Security Group v Fikile and others (DA24/15) [2017] ZALAC 9 held that an employment contract can be terminated in a number of ways which do not constitute dismissal as defined in section 186(1) of the LRA, and one of such instances would be a fixed-term employment contract entered into for a specific period or upon the happening of a particular event. Once the event agreed to between the Employer and Employee materialises, there would ordinarily be no dismissal. The applicant, Ms Malindi was appointed against a second Deputy Principal Post which the respondent intended to fill permanently. She fully understood that her fixed-term contract would terminate once the post had been filled. When this eventuality occurred, the applicant’s fixed term contract was duly terminated. This termination can therefore not amount to dismissal in terms of section 186(1) (b) of the LRA.
97. The applicant has asserted that she had an expectation of permanent employment based on the LIFO principle and on the promise that had been made by the former Principal of the School. Having looked at the evidence in this regard, I find that the expectation of permanent employment held by the applicant could not be a reasonable one. Besides the principle of LIFO, there were other factors that were taken into consideration in the filling of the vacant substantive post, paramount of which was the curriculum needs of the school which in this case was Social Science and isiZulu. Mr Kekana was found to be more suited for this post based on the curriculum needs of the school.
98. The applicant has failed to prove, on a balance of probabilities that she was unfairly dismissed by the respondent when she was not appointed in the substantive PL1 educator post that became available at Zakheni Primary School in 2021 and in which Mr Kekana who was found to be more suitable was appointed.
Award
1. The applicant has failed to prove on a balance of probabilities that she was dismissed by the respondent when she was not appointed in the vacant substantive PL1 post at Zakheni Primary School.
2. As a result of the aforesaid, the applicant’s application is dismissed.
Asnath Sedibane
ELRC Dispute Resolution Panellist
Panellist: Asnath Sedibane
Case No: ELRC485-21/22GP
Date of Award: 06 July 2022
In the ARBITRATION between:
ANNA NELISIWE MALINDI
(Union / Applicant)
and
DEPARTMENT OF EDUCATION OF GAUTENG
(Respondent)
Union/Applicant’s representative: Advocate N Deeplal (Legal Representative)
Union/Applicant’s address: Telephone:
Telefax:
Email:
Respondent’s representative: Mr M Zathu
Respondent’s address:
Telephone:
Telefax:
Email:
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between Anna Nelisiwe Malindi and the Department of Education of Gauteng was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration on 19 January 2022, 07 June 2022 and 15 June 2022.
2. The leading of oral evidence was concluded on the 15th of June 2022 and it was agreed between the parties and the Panellist that the parties would submit their written closing arguments by no later than the 22nd of June 2022. The applicant did submit their closing arguments on 22 June 2022. The respondent requested for an extension until 28 June 2022 to submit closing arguments. This was due to the respondent having had two representatives and the second representative having to familiarize himself with the evidence that was led before he took over the arbitration. Based on that, I granted the extension and the respondent did submit their closing arguments on 28 June 2022. The proceedings were conducted in English and were manually and digitally recorded.
3. The applicant was present and was represented by Advocate N Deeplal, a Legal Representative. The Respondent was represented first by Mr Nawa, an official of the Department of Education of Gauteng and when Mr Nawa could not proceed with the arbitration, Mr M Zathu, an official of the Department of Education of Gauteng represented the respondent.
4. The Applicant submitted a bundle of documents which was marked bundle “A” and the Respondent did not submit any documents.
5. Mr Musa Myeza, an Interpreter from the ELRC assisted with interpretation for witnesses that requested interpretation services.
PRELIMINARY ISSUES
6. No preliminary issues were raised by either of the parties.
ISSUES TO BE DECIDED
7. The dispute was referred to the ELRC by the applicant as an Alleged Unfair Dismissal in terms of section 186(1) (b) of the Labour Relations Act 66 of 1995.
8. I was required to determine whether the applicant was dismissed by the respondent and if I find that the applicant was dismissed, I was required to determine whether the dismissal was fair.
BACKGROUND TO THE DISPUTE
9. The applicant, Ms Malindi was employed as an educator on a number of fixed term contracts from 03 March 2020 with the last contract having expired on 31 August 2021.
10. It was agreed by the parties that the following was common cause between them:
10.1 The applicant, Ms Malindi was appointed by the respondent on fixed term contracts from 03 March 2020 until 31 August 2021.
10.2 In September 2020, the respondent had employed rotational teachers due to the Covid-19 pandemic. Mr Kekana was one of the rotational teachers that were appointed.
11. The parties agreed that the following were issues in dispute:
11.1 Whether or not the applicant had been dismissed.
11.2 Whether the Policies of the Department were followed correctly in the appointment of Mr Kekana.
11.3 Whether the respondent in appointing Mr Kekana complied with the LRA, EEA and clause 7.4.5 of the PPN Circular No. 15 of 2020.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Ms Anna Nelisiwe Malindi testified under oath as follows:
12. She is thirty (30) years old.
13. She has the following qualifications: B Ed in intermediate and senior phase. She has specialised in Maths, isiZulu and English.
14. She has worked as an educator at Zakheni Primary School from March 2020 until September 2021.
15. When the Covid-19 pandemic started, more teachers were employed on a rotational basis at the school.
16. There was a meeting at the school in December 2020 where the Principal, Mr Mnguni told the staff that the principle of first in last out would apply to fill in available posts.
17. The Principal also announced that Mr Ramponi would fill in the position of the teacher who was deceased. Mr Sithole would fill in the HOD post and the applicant would fill in the second deputy principal post as the school qualified to have a second Deputy Principal.
18. When schools reopened in January 2021, they were told about the available posts. It was said that the applicant, Mr Sithole and Ms Mthethwa would fill in the posts.
19. She had signed a contract in December 2020 in the substantive post of Deputy Principal.
20. She had taught English & Life Skills in 2020 in the post of Ms Masehe and she taught Social Science Grade 6 and Natural Science Grade 7 in the post of Mr Tshabalala. In 2021 she had taught Zulu.
21. Mr Kekana had joined the school in September 2020. He had said that it was his first teaching job. She had more experience than Mr Kekana because she had joined the school first.
22. She had taught Social Science at the school in 2020 whilst Mr Kekana had not taught it before he was appointed in the post.
23. She had lodged a grievance but had never received the outcome thereof.
24. In 2020 the principle that was used for appointment at the school was LAST IN FIRST OUT (LIFO). This was not applied in 2021.
25. Under cross-examination Ms Malindi confirmed that she did not teach Social Science in 2021.
26. She had not majored in Social Science at University but she had studied it, meaning that she knew it. She confirmed that Mr Kekana had majored in Social Science.
27. She was better suited for the post than Kekana because she had taught Social Science in 2020.
28. She did understand that she was appointed against a promotional post of second Deputy Principal. She also understood that if the Deputy Principal was to be appointed internally she would permanent but if an external appointment was done then she would be out of the post.
29. The second Deputy Principal had been appointed externally.
The applicant’s second witness, Mr Silomo Clarence Khumalo testified under oath as follows:
30. He took the initiative to engage the respondent on the issue of the applicant after she told him about the issue.
31. He sent a number of emails to Mr Nawa but there was no response.
32. The applicant was dismissed as a result of the respondent’s failure to act on the issue.
33. Mr Nawa had called him to ask if the applicant was willing to disclose her identity and he had confirmed this but there was no response to subsequent emails.
34. Under cross-examination Mr Khumalo disputed that Mr Nawa had told him that this was a labour matter on which the respondent needed to deal directly with the applicant.
THE RESPONDENT`S CASE:
The respondent’s first witness, Ms Julia Patricia Sibiya testified under oath that:
35. She is the Principal of Zakheni Primary School and she has been in this position as from 01 April 2022. Before then she was the Deputy Principal at the same school.
36. The applicant had been appointed at the school on contract in April 2020 and the contract was to expire in March 2021.
37. The applicant had been appointed to replace Miss Masehe who was on a long period of sick leave.
38. The applicant taught Life Skills and English grade 5.
39. The applicant’s initial contract at the school expired on 18 March 2020 because of Covid-19.
40. In August 2020 the then Principal, Mr Mnguni phoned the applicant and asked her to return to the school. The applicant had been brought back under the pretence that she would be teaching English and Life Skills in grade 5.
41. The applicant was not suitable to teach Social Science because she did not do Geography and History in Matric and she did not major in these subjects at University.
42. The applicant had signed a contract before 15 December 2020 to act against a Deputy Principal Post which had been allocated to the school. She had started acting in this post in February 2021.
43. Mr Kekana had come to the school on a rotational post in September 2020. He taught isiZulu and Social Science. Kekana had concluded a contract with the Department until 31 March 2021.
44. Kekana had been appointed in the substantive vacant post because he had majored in Geography and History at University and he was in the system in January 2021. According to Circular 4, an educator who was not in the system in January could not be appointed.
45. The difference between Kekana and Malindi was that Mr Kekana had been in a rotational post whilst Ms Malindi had been in a promotional post.
46. Kekana had been appointed in the post of Mashaba who was appointed HOD at the school. Malindi could not be absorbed because a Deputy Principal had been appointed externally.
47. The applicant had lodged a grievance when Ms Mahlangu was appointed. She had contended that she had come first before Ms Mahlangu. Mahlangu had taught in the foundation phase whereas Malindi had taught in the intermediate and senior phases.
48. Under cross-examination, Ms Sibiya disputed the version that she had called the Zulu speaking educators at the school with her own cell phone when she had attended to the grievance meeting of Ms Malindi at the District Office.
49. She did not know the subjects that Ms Malindi had taught in August 2020 when she returned to the school after her contract had ended in March 2020.
50. She did not know that the applicant had taught social and natural science in grades 6 & 7.
51. The curriculum needs of the school at the time Kekana was appointed were isiZulu and Social Science.
52. Circular 4 and the Employment of Educators Act set the conditions of employment of educators.
53. Kekana’s Curriculum Vitae stated that he had taught social science and he had been employed by the district before he came to the school.
54. The Human Resource (HR) section considered curriculum needs of the school, the subjects of the educators in Matric and at University when making appointments.
55. Ms Sithole had been appointed in line with the curriculum needs of the school. She had taught Mathematics and had majored in the subject at University. She disputed that Ms Malindi had also majored in Mathematics.
The respondent’s second witness, Mr Nkosana Maxwell Masheula testified under oath as follows:
56. He is the IDSO cluster leader in cluster 1 of the Gauteng Department of Education.
57. His duties include providing end to end educational support to schools using the cluster system.
58. He is also responsible for co-ordination and facilitation.
59. The role that he plays in recruitment is that when a school has a vacancy, he advises the Principal of the school to fill in and submit a GDE 79 form. The Principal consults the SMT to do a thorough analysis of the school’s curriculum needs.
60. Zakheni Primary school had filled the GDE 79 in respect of the appointment of Ms Malindi and Mr Kekana. Ms Malindi was a substitute teacher in 2020 whilst Mr Kekana was a rotational teacher.
61. Kekana was later appointed in a vacant substantive post. Ms Malindi had been offering English and Life Skills at the time. Kekana was offering isiZulu and Social Science.
62. Malindi’s contract had ended at the end of August 2021.
63. Under cross-examination, Mr Masheula stated that he was not aware that the applicant had taught Social Science for six months at Zakheni Primary School.
64. He confirmed that he was aware that Ms Malindi had majored in Maths and Technology, according to her academic record.
65. He was not in a position to say whether a course done at University was a crush course or a major. This would be determined by SAQA.
66. He was not aware that the applicant had been paid a salary for December 2020 and January 2021.
The respondent’s third witness, Ms Michelle Tswelelo Mashego testified under oath as follows:
67. She is a Chief Personnel Officer for the Gauteng Department of Education.
68. Her duties include the monitoring of post establishment for the District and Schools.
69. She had received a query from head office with regards to Ms Malindi. She was asked why she had appointed Ms Mahlangu instead of Ms Malindi.
70. At the time of the appointment of Ms Mahlangu, the school had filled in a GED 79 which specified that the needs of the school were isiZulu teacher for the foundation phase. Ms Mahlangu was qualified to teach the foundation phase whereas Ms Malindi’s qualification was for the intermediate phase.
71. Mr Kekana had been appointed in a vacant substantive post and Ms Malindi was in another post. Both Kekana and Malindi had started at the school as temporary teachers in 2020.
72. In 2021 the school had submitted a GED79 indicating that the needs of the school was an educator who taught isiZulu and social science in grade 7.
73. She had asked if there were any educators at the school teaching these subjects. Kekana had been teaching isiZulu and Social Science. Malindi was teaching Life Skills and English.
74. When she looked at the profiles, she did not see any problem in appointing Kekana.
75. Under cross-examination, Ms Mashego confirmed that appointments were done by the District Director based on the recommendations of Human Resources.
76. She confirmed that HR considers the academic record and the GED79 when making the recommendations.
77. She confirmed that if a teacher had done a subject at University and they also taught the subject for six months, they would be considered for appointment over someone who had not taught the subject.
78. She disputed that Kekana had not taught Social Science at the school before he was appointed.
79. She also disputed that Ms Malindi had majored in Mathematics. As far as she knew, Malindi had majored in English and Life Skills.
80. Ms Sibiya had indicated that Kekana was teaching isiZulu and Social Science and that Malindi was teaching Life Skills and English.
ANALYSIS OF EVIDENCE AND ARGUMENTS
81. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
82. The applicant has referred an unfair dismissal dispute to the ELRC. The applicant’s case is premised on section 186 (1) (b) of the Labour Relations Act 66 of 1995 which reads as follows:
Section 186
Meaning of dismissal and unfair labour practice:
(1) Dismissal means that-
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer –
(i) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed- term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
83. The respondent has disputed that the applicant was dismissed and has contended that her fixed-term contract ended at the end of August 2021.
84. Since there was a dispute on whether or not the applicant had been dismissed, the onus to prove the alleged dismissal in this case rested with the applicant.
85. It was the applicant’s contention that she was dismissed by the respondent when she was not appointed in a permanent position. According to the applicant the respondent was supposed to apply the principle of LIFO (Last in first out) when filling the vacant position of a post level 1 educator in which one Mr Kekana was appointed. Mr Mnguni the School Principal at Zakheni Primary School in 2020 is alleged to have made an indication in a staff meeting that the LIFO principle would be applied in respect of the applicant when vacancies became available. It should be noted that Mr Mnguni was not called to testify at the arbitration and none of the attendees of the said meeting were called to testify regarding the promise by Mr Mnguni regarding the permanent appointment of the applicant.
86. It is further the contention of the applicant that she was the more suitable candidate for the position in which Mr Kekana was appointed because she had taught Social Science for six months in 2020 at Zakheni Primary School. The applicant other than making the oral submission that she had taught Social Science in 2020, did not present any evidence to prove this contention.
87. Ms Sibiya who testified for the respondent stated that the curriculum needs of the school when the PL1 post was filled in 2021 was Social Science and isiZulu in grade 7. When the GED79 form that was completed to request for the filling of the vacant post by the District Office, the curriculum needs were specified on the form. Both Ms Malindi and Mr Kekana were considered for the post and Mr Kekana was recommended as the most suitable candidate since he had majored in Geography and History at tertiary level and had also done these subjects in Matric.
88. Mr Masheula, outlined the process of recruitment of educators and specifically how the GED79 form would be compiled by the School Principal after consulting the School Management Team (SMT). He confirmed that the applicant’s fixed-term contract was terminated when a Deputy Principal was appointed externally. The applicant had occupied the promotional post of second Deputy Principal at Zakheni Primary School when the permanent appointment of the second Deputy Principal was made.
89. Ms Mashego’s evidence corroborated the evidence of Ms Sibiya and Mr Masheula in respect of the curriculum needs of the school at the time of the filling of the substantive PL1 educator post in 2021. Ms Mashego further confirmed that when the post was filled, the temporary educators at the school, including the applicant, Ms Malindi were taken into consideration and that Mr Kekana was found to be better suited for appointment in the position since he had taught Social Science and isiZulu and he had majored in those subjects at University.
90. All three of the respondent’s witnesses testified that they were not aware of the applicant having taught Social Science for six months at Zakheni Primary School in 2020. Ms Mashego further testified that when considering the profiles of Malindi and Kekana, she had found that Kekana had taught Social Science and this was not reflected on Malindi’s profile.
91. The onus to prove whether there was dismissal in terms of section 186(1) (b) in circumstances where a fixed-term contract was not renewed or was renewed on less favourable terms, in each case rests with the applicant who alleges such dismissal. The Labour Court in Member of the Executive Council for the Department of Finance Eastern Cape v Milander & Others(2011)32 ILJ 2521 (LC) summarised the approach adopted in determining whether a reasonable expectation of renewal of a fixed-term contract has been established. The court held in this case that such a test involved a dual inquiry. The first inquiry is a subjective one and entails enquiring into the subjective basis upon which an employee contends that his/her contract ought to have been renewed. If the employee fails to show that he/she had a reasonable expectation that his/her contract would be renewed then that brings the inquiry to an end.
However if the employee succeeds in showing that he/she subjectively expected that his/her fixed-term contract would be renewed then the second enquiry entails a determination of the existence of such expectation on the basis of the objective facts that existed prior to the termination of the contract.
92. The applicant in this case contends that she had been promised permanent appointment by the former School Principal, Mr Mnguni, based on the LIFO principle. The applicant merely states this as a fact, without any evidence to corroborate her evidence that she had a reasonable expectation of either permanent appointment or renewal of the fixed term contract. The applicant, by her own admission knew when she occupied the vacant post of second Deputy Principal on a temporary basis, that should the post be filled externally then her fixed-term contract would immediately come to end since there would not be another vacant post at the school.
93. The LAC in South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others [2008] 9 BLLR 845 (LAC) in paragraph 43 states as follows: “What section 186 (1) (b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it . The operative terms of section 186(1) (b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed term contract or renew it on less favourable terms. The fixed- term contract should also be capable of renewal.” It is common cause in the current matter that the applicant was on a month to month contract, subject to the filling of the promotional post against which she was temporarily appointed. It therefore follows that upon the promotional post being filled, the applicant’s temporary post ceases to exist. There can therefore not be any reasonable expectation that the applicant’s contract would be renewed or that she would be retained indefinitely in that post.
94. The applicant submits in her closing arguments that she was also subjected to unfair labour practice when she was not appointed in the vacant substantive post. The submission by the applicant in this regard is that her “transfer” from the promotional post to the substantive post would have amounted to a promotion. It must be noted that the dispute that the applicant referred to the ELRC is alleged unfair dismissal. I will therefore not deal with the allegations of unfair dismissal as this is a different dispute that would require a separate referral.
95. It is common cause that the recruitment process of the respondent is based on legislation and prescripts. The respondent led evidence that the GED79 form in respect of the filling of the substantive PL1 post was completed based on the curriculum needs of the school.
Mr Kekana was appointed after the considerations of the requirements of the post and the profiles of the temporary teachers at the school, including the applicant.
96. The Labour Appeal Court in Enforce Security Group v Fikile and others (DA24/15) [2017] ZALAC 9 held that an employment contract can be terminated in a number of ways which do not constitute dismissal as defined in section 186(1) of the LRA, and one of such instances would be a fixed-term employment contract entered into for a specific period or upon the happening of a particular event. Once the event agreed to between the Employer and Employee materialises, there would ordinarily be no dismissal. The applicant, Ms Malindi was appointed against a second Deputy Principal Post which the respondent intended to fill permanently. She fully understood that her fixed-term contract would terminate once the post had been filled. When this eventuality occurred, the applicant’s fixed term contract was duly terminated. This termination can therefore not amount to dismissal in terms of section 186(1) (b) of the LRA.
97. The applicant has asserted that she had an expectation of permanent employment based on the LIFO principle and on the promise that had been made by the former Principal of the School. Having looked at the evidence in this regard, I find that the expectation of permanent employment held by the applicant could not be a reasonable one. Besides the principle of LIFO, there were other factors that were taken into consideration in the filling of the vacant substantive post, paramount of which was the curriculum needs of the school which in this case was Social Science and isiZulu. Mr Kekana was found to be more suited for this post based on the curriculum needs of the school.
98. The applicant has failed to prove, on a balance of probabilities that she was unfairly dismissed by the respondent when she was not appointed in the substantive PL1 educator post that became available at Zakheni Primary School in 2021 and in which Mr Kekana who was found to be more suitable was appointed.
Award
1. The applicant has failed to prove on a balance of probabilities that she was dismissed by the respondent when she was not appointed in the vacant substantive PL1 post at Zakheni Primary School.
2. As a result of the aforesaid, the applicant’s application is dismissed.
Asnath Sedibane
ELRC Dispute Resolution Panellist