ELRC1058-221/22GP
Text
ELRC1058-221/22GP
Award Date:
27 July 2022
ARBITRATION AWARD
Case Number: ELRC1058-221/22GP
Commissioner: Zipporah Ngwenya
Date of Award: 27 July 2022
In the matter between
CLARICE MADLOSE
(Applicant)
And
GAUTENG DEPARTMENT OF EDUCATION
Respondent
DETAILS OF HEARING AND REPRESENTATION
1. The dispute between the Applicant, Ms. Clarise Mdlalose, and the Respondent, Gauteng Department of Education, was referred to the Education Labour Relations Council (ELRC) in terms of section 191 of the Labour Relations Act 66 of 1995, as amended (LRA).
2. The arbitration was virtually held via Zoom on 12 July 2022. The Applicant was represented by Ms. E. Rajoo, a Candidate Attorney of Sudeshnee Naaidoo Attorneys. Ms. E Magadla, a Labour Relations Specialist, appeared on behalf of the Respondent.
3. The proceedings were conducted in English and were digitally recorded.
ISSUE TO BE DECIDED
4. I have to decide whether the non-renewal of Applicant’s fixed term contract constituted a dismissal in terms of section 186(1)(b) of the LRA, and if so, whether the dismissal was substantively and procedurally fair, and if not, the appropriate relief.
BACKGROUND TO THE ISSUE
5. The Applicant was employed by the Respondent as an Educator at Ditawana Primary School on a fixed-term contract. Her contract was renewed thrice. The recent contract was ended on 31 December 2021.
6. The Applicant claimed that the Respondent failed to renew her fixed-term contract, despite a reasonable expectation. At the time of the alleged dismissal, The Applicant’s monthly salary was R 33 802.50
7. Applicant sought retrospective reinstatement.
8. Pre-arbitration minutes were submitted. It was confirmed on record that dismissal was in dispute and that the Applicant party thus had the duty to begin.
SURVEY OF EVIDENCE AND ARGUMENTS
9. Both parties presented witness testimony under oath. The bundle of documents handed up by each party were accepted as what they purported to be. The Applicant party’s bundle is marked bundle “A” while the Respondent’s is marked “R”.
The Applicant’s case
Clarice Mdlalose (Ms. Mdlalose)
10. In short, Ms. Mdlalose confirmed to have been aware of the nature of her contract. The Respondent did not furnish her with her contract of employment. She was informed the first week of December 2021 that her fixed term contract would not be renewed. Due to the six’s month length of her last contract, an expectation arose for her contact to be renewed.
The Respondent’s case
Nelisiwe Mahlazi (Ms. Mahlazi)
11. Ms. Mahlazi was employed by the Respondent as an Assistant Director in the Human Resource Division. The leaners’ school attendance was placed on rotation during the early stages of the Covid-19 pandemic. As a result, the Educators’ volume of work increased, creating a need for extra labour. This is how the Applicant’s post was created. These posts were meant to assist the Respondent to manage with Corona Virus (Covid-19) implications at schools.
Nomasonto Luvuno (Ms. Luvuno)
12. She was employed as a Principal by the Respondent at Ditawana Primary School. The school was allocated two posts to assist with managing the effects of Covid-19 pandemic. She had discussions with the Applicant about the terms of her fixed-time contract. None of the contracts were renewed after 31 December 2021.
CLOSING ARGUMENTS
13. Extensive written heads of argument were handed in by both parties. Although considered, I am not going to repeat these arguments here in detail, but will refer to them during my analysis of the evidence, where relevant.
ANALYSIS OF EVIDENCE AND ARGUMENTS
14. The matter before me is not one relating to the validity of the Applicant’s fixed-term contract, nor is it relating to whether the Applicant had reasonable expectations for permanent employment. Again, I am to decide what is reflected in paragraph 4 and will therefore confine myself to relevant evidence only.
15. Section 186(1) of the LRA defines 'dismissal' as meaning that -
a) an employer has terminated a contract of employment with or without notice;
b) an employee reasonably expected the employer 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;
16. The latter subsection is applicable in this instance, since the Applicant’s fixed term contract automatically terminated on 31 December 2021. Dismissal will be established if the Applicant is able prove that the Respondent failed to renew her contract, contrary to a reasonable expectation.
17. Based on the Applicant’s version, it is apparent that her expectation arose from circumstances surrounding her previous contract. While one cannot debate against an expectation, the reasonableness thereof, on the other hand, can be and must be assessed objectively.
Was there a reasonable expectation for a renewal?
18. By not furnishing the Applicant with a copy of her contract of employment, the Respondent was in contravention of the Basic Conditions of Employment Act. This however cannot be a reasonable expectation to expect a renewal. I am satisfied that the Applicant had been aware of the terms of her contract of employment. What she might have not known was the label of “rotational basket”. This does not take away the bottom line of knowing about the terms. In her own version, she confirmed that she had been aware that each of the contracts were fixed term, she had been aware of each of their duration as well as that they were created for Covid-19 relief purposes. It was furthermore not disputed that the terms of her contract were discussed at the commencement of each contract, as Ms. Luvuno testified. It was moreover addressed that the Applicant completed the “application for contract appointment” on page 6 to 9 of bundle R. The period of vacancies is also sited. The Applicant admitted that she got the duration dates from Ms. Luvuno. This further confirms Ms. Luvuno’s testimony.
19. The leaners’ school attendance was placed on rotation during the early stages of the Covid-19 pandemic. As a result, the Educators’ volume of work increased; creating a need for extra labour. According to Ms. Mahlazi, this is how the Applicant’s post was created. These posts were meant to assist the Respondent to manage Covid-19 implications at schools. Without any other version, I accept this. I furthermore accept and find it probable that the Respondent did not renew the said fixed-term contracts of those posts because it had reached a point where it could manage. The pandemic was no longer at its peak and the Respondent no longer had financial budget for renewals. Although, it is true that Covid-19 still exists, it would be gullible to believe that the said posts were going to be renewed for as long as the virus existed. Moreover, since these posts were created specifically for the task of Covid-19 management, non-renewals should not come as a shock if the task is deemed fulfilled by the Respondent. Considering this, it would not have been adequate to base expectations on the number of previous renewals. It is my view that the Respondent could not have known when it would finally reach a point of managing with Covid-19.
20. The memorandum on page 4 of bundle R instructing termination of the said posts is an indication that the Applicant was not singled out with the non-renewal. Ms. Rajoo made an argument that alludes that the word “termination” used in the memorandum implies dismissal. Even if I were to agree with her, the Applicant’s employment lasted until the duration of the fixed term contract. I have already mentioned that I would not be dealing with issues that are not pertinent in this matter, but to digress – an absorption of another Educator into a different kind of contract is, in my view, not comparable to a renewal at hand.
21. I do not regard the mere fact that the Applicant’s fixed term contract duration was six months long as being of any assistance in trying to establish a reasonable expectation of renewal. It is furthermore not my place to deem permanency.
22. Lastly, a factor such as a failure to give reasonable notice of non-renewal, rarely, on its own, cannot give rise to a reasonable expectation. In any event, the Applicant; while making a claim of short notice, was not able to specify the date she was informed of the non-renewal.
Based on my reasons above, I am not convinced that the Applicant’s expectation, to have her fixed-term contract renewed, are reasonable. I therefore find that her fixed term contract terminated by operation of law, and that there is no dismissal in terms of section 186(1) (b). Without dismissal, the Respondent does not have a burden to prove the fairness thereof.
Award
23. The Applicant, Ms. Clarice Mdlalose, was not dismissed by the Respondent, the Gauteng Department of Education.
24. The matter is dismissed.
Signature:
Zipporah Ngwenya
ELRC Panellist
Case Number: ELRC1058-221/22GP
Commissioner: Zipporah Ngwenya
Date of Award: 27 July 2022
In the matter between
CLARICE MADLOSE
(Applicant)
And
GAUTENG DEPARTMENT OF EDUCATION
Respondent
DETAILS OF HEARING AND REPRESENTATION
1. The dispute between the Applicant, Ms. Clarise Mdlalose, and the Respondent, Gauteng Department of Education, was referred to the Education Labour Relations Council (ELRC) in terms of section 191 of the Labour Relations Act 66 of 1995, as amended (LRA).
2. The arbitration was virtually held via Zoom on 12 July 2022. The Applicant was represented by Ms. E. Rajoo, a Candidate Attorney of Sudeshnee Naaidoo Attorneys. Ms. E Magadla, a Labour Relations Specialist, appeared on behalf of the Respondent.
3. The proceedings were conducted in English and were digitally recorded.
ISSUE TO BE DECIDED
4. I have to decide whether the non-renewal of Applicant’s fixed term contract constituted a dismissal in terms of section 186(1)(b) of the LRA, and if so, whether the dismissal was substantively and procedurally fair, and if not, the appropriate relief.
BACKGROUND TO THE ISSUE
5. The Applicant was employed by the Respondent as an Educator at Ditawana Primary School on a fixed-term contract. Her contract was renewed thrice. The recent contract was ended on 31 December 2021.
6. The Applicant claimed that the Respondent failed to renew her fixed-term contract, despite a reasonable expectation. At the time of the alleged dismissal, The Applicant’s monthly salary was R 33 802.50
7. Applicant sought retrospective reinstatement.
8. Pre-arbitration minutes were submitted. It was confirmed on record that dismissal was in dispute and that the Applicant party thus had the duty to begin.
SURVEY OF EVIDENCE AND ARGUMENTS
9. Both parties presented witness testimony under oath. The bundle of documents handed up by each party were accepted as what they purported to be. The Applicant party’s bundle is marked bundle “A” while the Respondent’s is marked “R”.
The Applicant’s case
Clarice Mdlalose (Ms. Mdlalose)
10. In short, Ms. Mdlalose confirmed to have been aware of the nature of her contract. The Respondent did not furnish her with her contract of employment. She was informed the first week of December 2021 that her fixed term contract would not be renewed. Due to the six’s month length of her last contract, an expectation arose for her contact to be renewed.
The Respondent’s case
Nelisiwe Mahlazi (Ms. Mahlazi)
11. Ms. Mahlazi was employed by the Respondent as an Assistant Director in the Human Resource Division. The leaners’ school attendance was placed on rotation during the early stages of the Covid-19 pandemic. As a result, the Educators’ volume of work increased, creating a need for extra labour. This is how the Applicant’s post was created. These posts were meant to assist the Respondent to manage with Corona Virus (Covid-19) implications at schools.
Nomasonto Luvuno (Ms. Luvuno)
12. She was employed as a Principal by the Respondent at Ditawana Primary School. The school was allocated two posts to assist with managing the effects of Covid-19 pandemic. She had discussions with the Applicant about the terms of her fixed-time contract. None of the contracts were renewed after 31 December 2021.
CLOSING ARGUMENTS
13. Extensive written heads of argument were handed in by both parties. Although considered, I am not going to repeat these arguments here in detail, but will refer to them during my analysis of the evidence, where relevant.
ANALYSIS OF EVIDENCE AND ARGUMENTS
14. The matter before me is not one relating to the validity of the Applicant’s fixed-term contract, nor is it relating to whether the Applicant had reasonable expectations for permanent employment. Again, I am to decide what is reflected in paragraph 4 and will therefore confine myself to relevant evidence only.
15. Section 186(1) of the LRA defines 'dismissal' as meaning that -
a) an employer has terminated a contract of employment with or without notice;
b) an employee reasonably expected the employer 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;
16. The latter subsection is applicable in this instance, since the Applicant’s fixed term contract automatically terminated on 31 December 2021. Dismissal will be established if the Applicant is able prove that the Respondent failed to renew her contract, contrary to a reasonable expectation.
17. Based on the Applicant’s version, it is apparent that her expectation arose from circumstances surrounding her previous contract. While one cannot debate against an expectation, the reasonableness thereof, on the other hand, can be and must be assessed objectively.
Was there a reasonable expectation for a renewal?
18. By not furnishing the Applicant with a copy of her contract of employment, the Respondent was in contravention of the Basic Conditions of Employment Act. This however cannot be a reasonable expectation to expect a renewal. I am satisfied that the Applicant had been aware of the terms of her contract of employment. What she might have not known was the label of “rotational basket”. This does not take away the bottom line of knowing about the terms. In her own version, she confirmed that she had been aware that each of the contracts were fixed term, she had been aware of each of their duration as well as that they were created for Covid-19 relief purposes. It was furthermore not disputed that the terms of her contract were discussed at the commencement of each contract, as Ms. Luvuno testified. It was moreover addressed that the Applicant completed the “application for contract appointment” on page 6 to 9 of bundle R. The period of vacancies is also sited. The Applicant admitted that she got the duration dates from Ms. Luvuno. This further confirms Ms. Luvuno’s testimony.
19. The leaners’ school attendance was placed on rotation during the early stages of the Covid-19 pandemic. As a result, the Educators’ volume of work increased; creating a need for extra labour. According to Ms. Mahlazi, this is how the Applicant’s post was created. These posts were meant to assist the Respondent to manage Covid-19 implications at schools. Without any other version, I accept this. I furthermore accept and find it probable that the Respondent did not renew the said fixed-term contracts of those posts because it had reached a point where it could manage. The pandemic was no longer at its peak and the Respondent no longer had financial budget for renewals. Although, it is true that Covid-19 still exists, it would be gullible to believe that the said posts were going to be renewed for as long as the virus existed. Moreover, since these posts were created specifically for the task of Covid-19 management, non-renewals should not come as a shock if the task is deemed fulfilled by the Respondent. Considering this, it would not have been adequate to base expectations on the number of previous renewals. It is my view that the Respondent could not have known when it would finally reach a point of managing with Covid-19.
20. The memorandum on page 4 of bundle R instructing termination of the said posts is an indication that the Applicant was not singled out with the non-renewal. Ms. Rajoo made an argument that alludes that the word “termination” used in the memorandum implies dismissal. Even if I were to agree with her, the Applicant’s employment lasted until the duration of the fixed term contract. I have already mentioned that I would not be dealing with issues that are not pertinent in this matter, but to digress – an absorption of another Educator into a different kind of contract is, in my view, not comparable to a renewal at hand.
21. I do not regard the mere fact that the Applicant’s fixed term contract duration was six months long as being of any assistance in trying to establish a reasonable expectation of renewal. It is furthermore not my place to deem permanency.
22. Lastly, a factor such as a failure to give reasonable notice of non-renewal, rarely, on its own, cannot give rise to a reasonable expectation. In any event, the Applicant; while making a claim of short notice, was not able to specify the date she was informed of the non-renewal.
Based on my reasons above, I am not convinced that the Applicant’s expectation, to have her fixed-term contract renewed, are reasonable. I therefore find that her fixed term contract terminated by operation of law, and that there is no dismissal in terms of section 186(1) (b). Without dismissal, the Respondent does not have a burden to prove the fairness thereof.
Award
23. The Applicant, Ms. Clarice Mdlalose, was not dismissed by the Respondent, the Gauteng Department of Education.
24. The matter is dismissed.
Signature:
Zipporah Ngwenya
ELRC Panellist