ELRC59-22/23GP
Text
ELRC59-22/23GP
Award Date:
03 August 2022
IN THE ELRC ARBITRATION
BETWEEN:
DUDUZILE MURIEL MBANJWA EMPLOYEE
and
DEPARTMENT OF EDUCATION: GAUTENG EMPLOYER
ARBITRATION AWARD
Case Number: ELRC59-22/23GP
Last date of arbitration: 26 JULY 2022
Receipt of closing arguments: N/A
Date of award: 3 August 2022
MATHEWS RAMOTSHELA
ELRC Arbitrator
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held via Zoom online application on 26 July 2022. The employee, who was unrepresented, attended the hearing. Siza Mbhalati, the employer’s Deputy Chief Education Specialist (Dispute Resolution) represented the employer. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am enjoined to determine whether the employer has dismissed the employee and whether the dismissal, if established, was both procedurally and substantively unfair.
BACKGROUND TO THE ISSUE
[3] Common cause issues/facts
(a) On 1 September 2020 the parties entered into a fixed-term contract terminating on 31 December 2020;
(b) The reason for hiring the employee was to substitute an educator that was temporarily away on account of suffering from comorbidities during a certain level of the Covid-19 pandemic;
(c) All educators appointed on these ad hoc posts were terminated on 31 December 2021;
(d) All educators that were sent away from the school due to Covid 19-related comorbidities have since returned to work;
(e) The employee’s contract was last extended from 1 July 2021 to 31 February 2021.
Issues in dispute
[4] Whether the employer dismissed the employee. The employer denies the existence of a dismissal.
SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYEE’S EVIDENCE
Duduzile Muriel Mbanjwa testified under oath as follows:
[5] She was supposed to be given a termination letter that is specifically addressed to her. There was no reason for the termination and she was supposed to be given the reasons for the termination. She was confused because the lady that she was substituting came back and she remained working at the school until her termination.
Under cross-examination she further testified as follows:
[6] She was aware that at some stage her contract would be terminated.
EMPLOYER’S EVIDENCE
[7] The employer closed its case without calling any witness.
ANALYSIS OF EVIDENCE AND ARGUMENT
[8] Section 192(1) of the Labour Relations Act 66 of 1995 (the Act) directs that in any dispute of unfair dismissal the employee has to establish the existence of dismissal. Has the employee succeeded to show that indeed the employer dismissed her? In my considered view, the employee has dismally failed to establish any facts from which one can deduce that the employer has dismissed her. My reasons follow.
[9] From the evidence tendered by the employee, as highlighted above, it is apparent that she was unable to give any facts to persuade me that she was dismissed. There is no iota of evidence to underpin her allegations.
[10] On the contrary, the very facts that are common cause, as mentioned above, glaringly tell us that the very nature of the contract of employment between the parties was such that the intention was that hers would be a very temporary engagement, the lifespan of which was conditional upon the temporary absence of educators that were advised and/or allowed to be away from the workplace (school) because of their medical condition during the height of the Covid 19 pandemic. It is not in dispute that the only reason the employee and many other educators like her were given fixed-term contracts was to act as substitutes in place of these permanent educators.
[11] The employee admits that all the educators that were temporarily away have since been recalled and are back to their permanent teaching posts. Also, all educators that were temporarily hired, as in the case of the employee, have been terminated on 31 December 2021. The employee was unable to explain how, under these circumstances, she still expected to be further employed. She could not present facts that indicate that there was any additional post that was offered to her at all.
[12] I thus find that given the abovementioned facts, it was highly inconceivable that the employer could sustain to employ the employee even when circumstances dictated that her services were no longer needed. I am of the considered view that the employee was fully aware that at some stage her contract would come to an end and same would not amount to a dismissal.
[13] I accordingly arrive at the inevitable conclusion and finding that the employee was not dismissed but instead her contract of employment came to an end in the agreed manner between the parties. When they entered into a fixed-term contract, both parties similarly agreed on the event that would automatically lead to the termination. When the employer notified the employee and all other temporary educators in her situation that it was the end of their contracts, it was merely an act that amounted to no more than giving effect to an implied term of the contract.
AWARD
[14] The employer did not dismiss the employee.
[15] The employee’s claim of unfair dismissal is hereby dismissed.
Council Panelist: MATHEWS M RAMOTSHELA
Signed
BETWEEN:
DUDUZILE MURIEL MBANJWA EMPLOYEE
and
DEPARTMENT OF EDUCATION: GAUTENG EMPLOYER
ARBITRATION AWARD
Case Number: ELRC59-22/23GP
Last date of arbitration: 26 JULY 2022
Receipt of closing arguments: N/A
Date of award: 3 August 2022
MATHEWS RAMOTSHELA
ELRC Arbitrator
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held via Zoom online application on 26 July 2022. The employee, who was unrepresented, attended the hearing. Siza Mbhalati, the employer’s Deputy Chief Education Specialist (Dispute Resolution) represented the employer. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am enjoined to determine whether the employer has dismissed the employee and whether the dismissal, if established, was both procedurally and substantively unfair.
BACKGROUND TO THE ISSUE
[3] Common cause issues/facts
(a) On 1 September 2020 the parties entered into a fixed-term contract terminating on 31 December 2020;
(b) The reason for hiring the employee was to substitute an educator that was temporarily away on account of suffering from comorbidities during a certain level of the Covid-19 pandemic;
(c) All educators appointed on these ad hoc posts were terminated on 31 December 2021;
(d) All educators that were sent away from the school due to Covid 19-related comorbidities have since returned to work;
(e) The employee’s contract was last extended from 1 July 2021 to 31 February 2021.
Issues in dispute
[4] Whether the employer dismissed the employee. The employer denies the existence of a dismissal.
SURVEY OF EVIDENCE AND ARGUMENT
EMPLOYEE’S EVIDENCE
Duduzile Muriel Mbanjwa testified under oath as follows:
[5] She was supposed to be given a termination letter that is specifically addressed to her. There was no reason for the termination and she was supposed to be given the reasons for the termination. She was confused because the lady that she was substituting came back and she remained working at the school until her termination.
Under cross-examination she further testified as follows:
[6] She was aware that at some stage her contract would be terminated.
EMPLOYER’S EVIDENCE
[7] The employer closed its case without calling any witness.
ANALYSIS OF EVIDENCE AND ARGUMENT
[8] Section 192(1) of the Labour Relations Act 66 of 1995 (the Act) directs that in any dispute of unfair dismissal the employee has to establish the existence of dismissal. Has the employee succeeded to show that indeed the employer dismissed her? In my considered view, the employee has dismally failed to establish any facts from which one can deduce that the employer has dismissed her. My reasons follow.
[9] From the evidence tendered by the employee, as highlighted above, it is apparent that she was unable to give any facts to persuade me that she was dismissed. There is no iota of evidence to underpin her allegations.
[10] On the contrary, the very facts that are common cause, as mentioned above, glaringly tell us that the very nature of the contract of employment between the parties was such that the intention was that hers would be a very temporary engagement, the lifespan of which was conditional upon the temporary absence of educators that were advised and/or allowed to be away from the workplace (school) because of their medical condition during the height of the Covid 19 pandemic. It is not in dispute that the only reason the employee and many other educators like her were given fixed-term contracts was to act as substitutes in place of these permanent educators.
[11] The employee admits that all the educators that were temporarily away have since been recalled and are back to their permanent teaching posts. Also, all educators that were temporarily hired, as in the case of the employee, have been terminated on 31 December 2021. The employee was unable to explain how, under these circumstances, she still expected to be further employed. She could not present facts that indicate that there was any additional post that was offered to her at all.
[12] I thus find that given the abovementioned facts, it was highly inconceivable that the employer could sustain to employ the employee even when circumstances dictated that her services were no longer needed. I am of the considered view that the employee was fully aware that at some stage her contract would come to an end and same would not amount to a dismissal.
[13] I accordingly arrive at the inevitable conclusion and finding that the employee was not dismissed but instead her contract of employment came to an end in the agreed manner between the parties. When they entered into a fixed-term contract, both parties similarly agreed on the event that would automatically lead to the termination. When the employer notified the employee and all other temporary educators in her situation that it was the end of their contracts, it was merely an act that amounted to no more than giving effect to an implied term of the contract.
AWARD
[14] The employer did not dismiss the employee.
[15] The employee’s claim of unfair dismissal is hereby dismissed.
Council Panelist: MATHEWS M RAMOTSHELA
Signed