ELRC292 20/21LP

Commissioner: S Fourie
Case No.: ELRC292 20/21LP Date of Award: 24 October 2022

In the ARBITRATION between:

TSHEGOFATSO BETHUEL MABITSELA
(Union / Applicant)

and

DEPARTMENT OF EDUCATION - LIMPOPO
(Respondent)

Union/Applicant’s representative: Mr. S Rangoanasha

Telefax:
Email: Rangoanasha Inc

Respondent’s representative: Mr. M Matlou

Tel:
Email: Matlou MM.

DETAILS OF HEARING AND REPRESENTATION

[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on 7 July 2022 and 5 October 2022. The parties were afforded the opportunity to present written heads of argument to be submitted by 14 July 2022. The hearing was held utilizing a virtual platform on 7 July 2022 where after it was rescheduling on the Commissioners insistence again held on a virtual platform. The process was digitally recorded. The Applicant was present and represented by Mr. S Rangoanasha from Rangoanasha Inc. Mr. M Matlou from the Department of Education represented the Respondent.

ISSUE TO BE DECIDED

[2]. Whether the Applicant dismissal was procedurally and substantively fair as required in terms of Section 188 (1) (a) and (b) of the LRA. The Applicant sought to be compensated for the remainder of the fixed-term contract (FTC).

BACKGROUND

[3]. There were four fix-term contracts (FTC) entered into from 20 September 2018 to 31 December 2018, 1 January 2019 to 31 December 2019, 1 January 2020 to 31 December 2020 and 1 January 2021 which contract was to end on 31 December 2021. Parties submitted a pre-arbitration minute hereto. During the narrowing of the issues, it was determined that the last FTC was terminated on 31 May 2021. It is the Respondent’s view that a FTC can be terminated at any time when the post if filled. The Applicant’s averment is that the FTC was for a period of 12 months from 1 January 2021 to 31 December 2021, with no termination clause to agree to termination prior to 31 December 2021. Parties agreed that this dispute is a legal question to be determined and that Heads of Argument to be presented.

SURVEY OF EVIDENCE AND ARGUMENT

[4]. For purposes of this award, I do not intent, to record verbatim the evidence led and submissions made. Only the prominent points raised by each party in their evidence that have a bearing on the issue, in dispute to be decided are recorded hereunder. I did however consider all the evidence that was presented. The Respondent submitted a bundle of documents with pages R 1 -22. The Applicant submitted a bundle of documents with A 1 – 10 pages.

RESPONDENT’S SUBMISSIONS

[5] The Applicant was employed by the Respondent on a fixed term contract (FTC) effective from September 2018, occupying a promotional post (See R16). The Applicants’ fixed term contract (FTC) was extended from the 01 January 2019 (See R17 & 20). The appointment letter on page 17, paragraph 3 clearly states the period of appointment and reads: 1st January 2019 to 31st December 2019, or when the post is permanently filled, whichever comes first. Paragraph 3 reads that; the Applicant’s contract can be terminated prematurely before the 31st of December 2019.

[6] The Applicant’s fixed term contract (FTC) was again extended from 01 January 2020 to 31 December 2020 (see R18 and 20). The appointment letter on page 18, paragraph 3 again, states that: the period of appointment: 1st January 2020 to 31st December 2020, or when the post is permanently filled, whichever comes first. The Applicant knew that his fixed term contract can be terminated before the end of the academic year.

[7] The Applicant’s contract was again extended from 01 January 2021 to 31 December 2021 (See R19 & 22). The appointment letter on page 19, states that: “any error that may be detected will be
rectified”. Department reserves the right to terminate your contract could it be detected that you provided falsified, fraudulent and misleading information/documents when applying for the post. Although the last appointment letter (page R19) doesn’t include the clause(s) on other appointment letters, the omission is cured by paragraph 5 of page 19 of the Respondent’s bundle supra.

[8] On the 29th of April 2021, the Applicant was informed through a letter, amending his date of appointment (See A10) as stated by para 5 of Page 19 of the Respondent’s Bundle. In Joseph v University of Limpopo & others (2011) 32 ILJ 2085 (LAC) the LAC stated: Page 13 ‘[35) The onus is on an employee to prove the existence of a reasonable or legitimate expectation. He or she does so by placing evidence before an arbitrator that there are circumstances which justify such an expectation. Such circumstances could be, for instance, the previous regular renewals of his or her contract of employment, provisions of the contract, the nature of the business, and so forth. The aforesaid is not a closed list. It all depends on the given circumstances and is a question of fact.

[9] The Applicant has been appointed on fixed term contracts all along and occupying a promotional post and by its nature, a promotional post can be filled at any time by the Respondent. In Sonap Petroleum (South Africa) (Pty) Ltd v Pappadogianis (483/90) [1992] ZASCA 56; 1992 (3) SA 234 (AD); [1992] 2 All SA 114 (A) (30 March 1992), the court stated that “In my view, therefore, the decisive question in a case like the present is this: did the party whose actual intention did not conform to the common intention expressed, leave the other party, as a reasonable man, to believe that his declared intention represented his actual intention? …to answer this question, a three-fold inquiry is usually necessary, namely, firstly that there was a misrepresentation as to one party’s intention, secondly who made that representation and thirdly, was the other party misled thereby. The last question postulates two possibilities: was he actually misled, and would a reasonable man have been misled? Suppose the mistaken party has conducted himself as to give the other party reasonable belief that he was contracting with him on certain terms. In that case, he is bound by those terms unless there is some special reason for clarifying the mistake as an iustus error (excusable mistake). A mistake will be treated as an iustus error if the other party ought, as a reasonable person, to have known of it and where the other offer made is snapped up when the person purporting to accept the offer knows or ought to know that there was no intention to make the offer as it appears from the wording of the contract. This was also confirmed and accepted in the Sonap case. The Court concluded that the employees knew that they applied for a position of lab analysts on salary level 5C, and in the Court’s view, they could not have expected anything but an offer of employment on salary level 5C. Therefore, the Court concluded that it was a bona fide error on the part of the employer and that the correction of the employee salaries to level 5C did not constitute a breach in the contract but rather a rectification.

[10] The omission of the clause that says “the contract will be terminated when the post is permanently filled or the contract will be terminated at the end of the academic year” is a iustus error (excusable mistake). The Applicant knew or ought to have known that him being placed or occupying a promotional post, the contract can be terminated at any time, when the school gets permanent educator to occupy a promotional vacant post.

APPLICANT’S SUBMISSIONS

[5]. The Respondent appointed the Applicant on a FTC for the period 1 January 2021 to 31 December 2021 (A8) The Respondent terminated the Applicant’s FTC with notice (A10). Before the expiry date, the Respondent terminated the FTC (A9). The appointment letter contains no termination clause except paragraph 5 which reads: An error that may be detected will be rectified. The Department reserves the right to terminate your contract could it be detected that you provided falsified, fraudulent and misleading information/documents when applying for the post. This is the only stipulation the Respondent reserved its right having in mind the issue of termination before the end date. The termination letter (A10) cannot be regarded as a rectification of an error detected. Given an ordinary meaning to the termination letter, it terminated the appointment before the expiry date and serves as a notice of termination of employment. The letter is headed: ‘’Amendment date of termination on temporary capacity’’. The Applicant submits that the termination by notice given to the Applicant constitutes a dismissal because it was terminated before the end of the originally agreed fixed-term. The dismissal exists in terms of section 192(1) of the LRA.

[6] The Respondent’s submission that the last appointment letter that although the last appointment letter (R19) does not include the clause as in other appointment letters, the omission is cured by paragraph 5 on R19. Any error detected should be communicated to the other party in writing to reflect such error detected and to rectify the error to be accepted by both parties. The intention to terminate a contract of employment before the termination date was there when the offer was given and accepted and stipulated under paragraph 5. It cannot be said that the omission of other cancellation reasons constitutes an error. Each and every appointment letter was independent of each other. It was not an extension but a new appointment hence the date of effect reflects the date of approval. Paragraph 8 of A8 and 18 reads: The Head of Department has approved your appointment as an educator under the following conditions and the conditions are under the above words.

[7] The appointment from 1 January 2021 to 31 December 2021, had its conditions which differs from other appointments and was accepted as such by the parties. It was never the intention of the parties that the contract will be terminated when the post is permanently filled or the contract will be terminated at the end of the academic year. The exclusion of the words from the letter of appointment cannot be said to be an excusable mistake. The Respondent’s reliance on iustus error is not justifiable in law and cannot stand. The common law position is that there are two exceptions for pre-mature termination of fixed-term contracts that is fair and reasonable. There should be repudiation as a material breach alternatively the terms of such a contract should provide for such termination. In this instance there is no repudiation or material breach by the Applicant and the letter of appointment for the 2021 period, did not provide for termination as reflected by reasons on the letter A10.

[8] Our Courts upheld the principle that by entering into a fixed-term contract (FTC) of employment for a specific period, the parties intend to be bound by the contract for the stipulated period unless there is express provision made for earlier termination. In this instance there was no specific provision made to support reason for earlier termination as provided by the Respondent in the letter A10. In Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC) it was held that: there is no doubt that at common law a party to a fixed-term contract has no right to terminate in the absence of repudiation or material breach of the contract by the other party. In other words, there is no right to terminate such contract even on notice unless its terms provide for such termination.

[9] In Nkopane and other v Independent Electoral Commission [2007] 1 28 u 670 (LC) the Court was required just as in the Buthelezi case to determine whether an employer can prematurely terminate a fixed-term contract due to its operational requirements, the Court stated: It could easily have awarded the form and related documents to make it clear that the employment would terminate at least on the date specified was subject to earlier termination for operational reasons. In both case there is no common law right to pre-mature termination of fixed-term contracts unless the fixed-term contract provides for such termination. Such view was maintained in Lottering and other v Stellenbosch Municipality (2010) 12 BLLR 1306 LC: if the contract is for a fixed term, the contract may only be terminated on notice if there is a specific provision permitting termination on notice during the contractual period. It is not an inherent feature of this kind of contract and accordingly requires specific stipulation.

[10] The first appointment letter (on R16), had no termination clause and it ran for the whole period. The second appointment letter (on R17) made provision for pre-mature termination for when a post is permanently filled. The letter of appointment on R18 made no provision for pre-mature termination as a result of the post being permanently filled. Unlike the letters on R17 and R18 which had that clause, the letter on R19 has a special express clause of termination in the event the Department detected that the Applicant provided falsified, fraudulent and misleading information/documents when applying for the post. In reading R17 and 18, the intention of the parties was clear that the post may be permanently filled before the expiry date hence it was clearly stated in the letters of appointment. Such intention was not expressed in the appointment letter on R19 but another intention was expressed. The rationale was clear and the parties bind themselves to honor and perform their respective obligations. They planned accordingly therefore no party can escape its obligation in terms of the contract on the basis that its assessment of the future had been erroneous or had overlooked certain things. It is therefore submitted that the termination by notice constitute a dismissal and the reason provided by the Respondent that the omission of the wordings in letters R17 and 18, constitute an excusable mistake cannot be accepted. The dismissal of the Applicant was procedurally and substantively unfair.

[11] In PSA obo Mbiza v Office of the Presidency and other (2014) 3 BLLR 275 LC held that: premature termination of employment may also amount to an unfair dismissal which means employers may be held liable to pay compensation in addition to the amount paid out in terms of the contract. The Applicant had an expectation that the contract would run up to the end of December 2021, but paid until the end of May 2021. The Applicant also lost the 13th cheque due on his birthdate. The total amount lost is 7 months’ payment due plus the additional month amounting to 8 months in total. This will constitute just and equitable compensation in all the circumstances.

[12] The matter was postponed on various occasions by the Respondent advancing reasons for settlement. The Respondent was at all times aware that the Applicant was represented by a legal representative. The delay and opposition of this matter was frivolous. Section 138(10) of the LRA makes provision for a cost order according to the requirement of law and fairness in accordance of the rules in Section 115 (ZA) being a discretion by the Commissioner exercised with proper regard the all the facts and circumstances. Guidelines shows that the exercise of such discretion must be guided amongst other by the conduct of the parties. It would be in law and fairness considering rule 39 of the CCMA rules and section 138 (10) of the LRA to award costs against the Respondent.

RESPONDENT’S REPLY

[13] The Applicant has been employed by the Respondent on a fixed term contract and his remuneration package included 37% in leu benefits. The 37% in lieu included medical aid and 13th cheque. The submission by the Applicant that seeks to say the Applicant was entitled to 13th cheque must be rejected. In terms of Education Labour Relations Council Constitution (ELRC), Rule 54, sub-rule 54.3 clearly indicate that, “A commissioner may make an award of costs in respect of the legal fees of a party
that is represented in an arbitration by a legal practitioner, ONLY if the other parties to the arbitration were represented by a legal practitioner”. In this present case, the Respondent was not legally represented.

[14] Section 194(1) of the LRA gives the Labour Court (or CCMA commissioner) a discretion to determine the amount of compensation for the loss of the right. The key factors in the determination of compensation for procedural unfairness are:
• the extent of the deviation from a fair procedure
• the employee’s conduct.
• the employee’s length of service;
• the anxiety and hurt caused to the employee because the employer did not follow a fair procedure.
The LAC has interpreted “just and equitable in the circumstances” by considering the following factors to assess the amount of general damages:
• the nature and seriousness of the injury.
• the circumstances in which the infringement took place,
• the abuse of a relationship between the parties

APPLICANT’S EVIDENCE

[15] The Applicant’s testimony under oath – He stated that he had no knowledge of the appointment of the new person and had no knowledge of it to apply for it. When the contract (FTC) was terminated he felt excluded and shocked. The first FTC (R16) he worked up to the end which was 31 December 2018. The second FTC (R17), he worked from the 1st of January 2019 up to 31 December 2019, of which he accepted the terms thereof. The terms of R16 and R17 differed from each other but he accepted that another person may fill the position during 2019. Referring to the FTC on R18 from 1 January 2020 until 31 January 2020, and accepted the condition that the post may be filled. R19 refer to the last FTC from 1 January 2021 until 31 December 2021, which was terminated in April 2021 when another person was then appointed.

[16] During cross examination, the Applicant accepted the Department’s redeployment and rationalization (R&R) process and he occupied post 27, a PL1 level. He agreed that the nature of his appointment was temporary from 2018 until 2020 being in a substantive post understanding that it is when another teacher is absent and need to be replaced. He denied that the Respondent could rectify the contract in relation to paragraph 5 on R19 because he provided no false information as directed in terms of paragraph 5. A10 the termination letter reads that the FTC could be amended and it to be a temporary capacity to which the Applicant responded that it was for no good reason. Paragraph 2 on A10, amend the FTC R19, which the Applicant denied in that in was unilateral.

ANALYSIS OF EVIDENCE AND ARGUMENT

[17] It is common cause that the Applicant was appointed on four fix-term contracts (FTC) entered into from 20 September 2018 to 31 December 2018, 1 January 2019 to 31 December 2019, 1 January 2020 to 31 December 2020 and 1 January 2021 which contract was to end 31 December 2021. It is further common cause that the Respondent terminated the Applicant’s fixed-term contract on the 29th of April 2021. It is common cause that the last FTC for the 2021 period, had different wording as the previous ones. It is also common cause that the Applicant has been appointed on fixed term contracts all along and occupied a promotional post.

[18] The fixed-term contracts (FTC) entered into for a period of 12 months were the 2019, 2020 and 2021 periods. The 2018 FTC entered into was only for the latter period from September 2018 to 31 December 2018. The FTC entered into for 2019, has two conditions namely the period from 1 January 2019 to December 2019 or when the post is permanently filled, whichever comes first. The FTC entered into for 2020, has two conditions namely the period from 1 January 2020 to December 2020 or when the post is permanently filled, whichever comes first. The FTC entered into for 2021 has two conditions namely the period, 1 January 2021 to December 2021, and an error that may be detected will be rectified. The Department reserves the right to terminate your contract could it be detected that you provided falsified, fraudulent and misleading information/documents when applying for the post. The 2021 FTC, do not contain the condition: or when the post is filled. The condition: An error that may be detected will be rectified. The Department reserves the right to terminate your contract could it be detected that you provided falsified, fraudulent and misleading information/documents when applying for the post - is not contained in the 2019 and the 2020 agreements. The Respondent’s argument is that it was an error not to include the condition: or when the post is filled. Matlou argued that such omission was cured by paragraph 5 of page 19 of the Respondent’s bundle. On the 29th of April 2021, the Applicant was informed through a letter (A10), amending his date of appointment as stated by para 5 of Page 19 of the Respondent’s Bundle. Effectively the condition the Respondent had in mind during 2019 and 2020, was left out in 2021, realised in 2021 which lead to the termination and the amendment of the date. The letter on A10 altered the term of the initial FTC from 1 January 2021 to 31 December 2021, with the reason that the post was permanently filled. The condition the Respondent initially had in mind came to effect in the absence of the condition agreed upon between the parties for the 2021 period.

[19] The Respondent’s case is mainly based on the Sonap case relying on an iustus error (excusable mistake). A mistake will be treated as an iustus error if the other party ought, as a reasonable person, to have known of it and where the other offer made is snapped up when the person purporting to accept the offer knows or ought to know that there was no intention to make the offer as it appears from the wording of the contract. The Applicant’s case is mainly based on the Buthelezi case where it was held that: there is no doubt that at common law a party to a fixed-term contract has no right to terminate in the absence of repudiation or material breach of the contract by the other party. In other words, there is no right to terminate such contract even on notice unless its terms provide for such termination. Buthelezi was confirmed in Bouwer / South Zambezi Engineering Services (Pty) Ltd (CCMA case GATW8474-20 dated 01/10/ 2021), unreported.

[20] In this case, the Applicant knew during 2019 and 2020 that the post could be filled and should the position be filled, it would lead to the termination of his FTC. The Applicant, in my view had the same knowledge that the position may be filled during 2021, even in the absence of such condition merely because of the preceding two years. The Respondent defense is that of iustus error. The crisp question is whether the facts support such an inference. But this is not purely a question of fact. Horty Investments (Pty) Ltd v Interior Acoustics (Pty) Ltd [1984] 4 All SA 144 (W) Page 146 of [1984] 4 All SA 144 (W) limited category of mistakes will the law attach the quality of " iustus", and the fault principle looms large in the determination of this question. In the leading case on the subject, George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) at 471, FAGAN CJ said: "When can an error be said to be justus for the purpose of entitling a man to kontrak" (contract my translation) which renders the contract binding and enforceable despite the dissensus. Was the Respondent’s omission intentionally or in error. In other words, was the mistake to exclude the condition of filling the post excusable?

[21] The Respondent presented evidence demonstrating the extent of the error or then the mistake. The Applicant knew that his fixed-term contract could be terminated before the end of any academic year. The Applicant consented that the Respondent had prerogatives to fill vacant post through Rationalization and Redeployment (R&R). In my view should the very same circumstances occurred during 2020, the Applicant would not have had a merited case merely on the wording of the FTC. The omission of the clause that says “the contract will be terminated when the post is permanently filled or the contract will be terminated at the end of the academic year” was a iustus error (excusable mistake) in my view from the Respondent. The Applicant knew or ought to have known that him being placed or occupying a promotional post, the contract can be terminated at any time, when the school gets permanent educator to occupy a promotional vacant post. The Buthelezi judgement deals with termination of a fixed term contract which was concluded without any error. However, in the current matter, the Applicant’s contract of appointment had a bona fide error which was later amended by the Respondent.

AWARD

[22] The Applicant has failed to prove the existence of a dismissal.

[23] His fixed term contract automatically terminated on the arrival of a specific occurrence, namely the permanent filling of the promotional post occupied by the applicant.

S Fourie
ELRC ARBITRATOR
20 October 2022