ELRC849-21/22WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC849-21/22WC

In the Arbitration matter between:
Agrinnette November Applicant
and
Western Cape Education Department Respondent

ARBITRATION AWARD

Venue of arbitration: Online (Via Zoom)
Date: 15 June 2022, 22 June 2022, 10 August 2022, 11 August 2022, 13 September 2022, 14 September 2022 and 30 September 2022.

Parties present:

Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. A. Kok (SHOWUSA Official)
Applicant: Ms. Agrinnette November
Respondent’s Representative: Ms. Z. Ngqokombe (Labour Relations Officer)

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was conducted on 15 June 2022, 22 June 2022, 10 August 2022, 11 August 2022, 13 September 2022, 14 September 2022 and 30 September 2022. The arbitration hearing was conducted in terms of section 191(1) [191(5)(a)] of the Labour Relations Act, 66 of 1995 (the LRA), as amended, and finalized on 30 September 2022.
[2] The Applicant, Agrinnette November, was represented by Mr. A. Kok from Shosholoza Workers Union of South Africa (SHOWUSA), a registered trade union. The Respondent, Western Cape Education Department was represented by Ms. Z. Ngqokombe, the Respondent’s Labour Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.

ISSUE TO BE DECIDED

[4] I am required to determine if the Applicant was dismissed. Should I find that there was a dismissal, I am required to determine whether the dismissal of the Applicant was substantively and procedurally fair or unfair, and, if I find that it was unfair, I have to determine the appropriate relief.
[5] The Applicant sought to be reinstated retrospectively in the event that I find in her favour.
Issues in dispute
[6] The Applicant challenged the substantive fairness of her dismissal, as well as
procedural fairness. In respect of substantive fairness, the Applicant also challenged consistency in that:
6.1 Mr. Shumane was also employed as a temporary teacher. He also applied for his position and he was retained;
6.2 Mr. Mkweza also re-applied for his position based on the advertisements (advertisements during December 2021) and he was retained;
6.3 Mrs. S. Gqalaqha also applied for a position (another position) and she was rather employed in the position which the Applicant held;
6.4 All the above mentioned people (teachers) were converted to permanent, but the Applicant was not converted.

Common cause issues
[7] The following were regarded as common cause between the parties:
a) The Applicant was employed as Level 1 Educator in a substantive funded position;
b) She was employed from 7 August 2017;
c) The Applicant earned a salary of R18 177.75 per month;
d) Her working hours were from 8:00 until 15h00 (7 hours per day from Monday to Friday);
e) The Applicant was employed at a public school (secondary school) under the Department of Basic Education.
f) The school re-opened on 17 January 2022, after the school holidays.
BACKROUND
[8] The Applicant referred an alleged unfair dismissal dispute to the ELRC (the Council). The arbitration proceedings were conducted over seven (7) days. Both parties submitted heads of argument in writing by latest 14 October 2022.

SURVEY OF EVIDENCE AND ARGUMENT

[9] The existence of the dismissal was disputed and as such the Applicant bore the onus to proof that she was dismissed. Should dismissal be found to be in existence, the Respondent would bare the onus to prove that the dismissal was fair (Section 192(2) of the LRA).
[10] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).

THE APPLICANT’S EVIDENCE AND ARGUMENTS

[11] The Applicant submitted six (6) bundles of documents. Bundle A, consisting of 46 pages, numbered from page 1 to 46 (hereinafter referred to as “A”). Bundle B, consisting of 202 pages, numbered from page 1 to 202 (hereinafter referred to as “B”). Bundle C, consisting of 9 pages, numbered from page 1 to 9 (hereinafter referred to as “C”). Bundle D, consisting of 59 pages, numbered from page 1 to 59 (hereinafter referred to as “D”). Bundle E, consisting of 199 pages (admitted on 17 June 2022), numbered from page 1 to 199 (hereinafter referred to as “E”). Bundle F, consisting of 12 pages (admitted on 11 August 2022), numbered from page 1 to 12 (hereinafter referred to as “F”).

Ms. Agrinnette November (the Applicant) testified under oath as follows:

[12] She was employed on contract basis. Her contracts were from 7 August 2017 until 31 December 2017, from 1 January 2018 until 31 December 2018 and from 1 January 2019 until 31 December 2019. She never signed a contract after 2019 but she continued working at the school. She was dismissed by the Respondent on 17 January 2022. The Acting Principal, Mr. Lethunya dismissed her via WhatsApp messenger. There was no hearing conducted. Mr. Lethunya sent her a WhatsApp message stating that her services were no longer required (page 14 of “A”). She did not report for duty after she received the WhatsApp message. There was also no communication to her prior to receiving the message.

[13] November stated that she was off sick from 3 December 2021 until 8 December 2021. She was informed by another teacher that there was an advertisement of five posts (positions). The post based on the subjects she (November) presented was also advertised. She saw the advertisement on 9 December 2021, on the WhatsApp messenger on the cellular phone of Ms. Smanga. November stated that she thought it was also advertised as a formality in order to reinstate them again into the position. She applied for the post she occupied. She stated that she qualified to apply in accordance with the listed criteria for the position (page 46 of “R”). She was shortlisted and she attended the interviews on 13 December 2021. She never heard from the panel after they had interviewed her.

[14] Mr. Saula told her that she would receive feedback on either 13 or 14 December 2021. She did not receive any feedback and she was not aware that she was not the preferred candidate. Ms. Gqalaqa was thereafter appointed to the position she (November) filled prior to the posts being advertised. November stated that she and Ms. Shani were the only educators who were not successful in their applications for positions. Ms. Shani, Mr. Shumane and Mr. Mkweza were successful.

[15] November stated that it was never brought to her attention that her qualifications were not sufficient in order to be converted to permanent. She stated that she did not expect that her services would be terminated. She expected that she was going to be converted to permanent. She was never informed that her position would terminate on 31 December 2021. She held a BA degree which she obtained during 2003. Her major subjects were Education and History. She also held a Post Graduate Certificate (PGC) in Education and her major subjects were English and Life Orientation. She was provisionally registered with SACE.

[16] November stated that she was never informed by the school or by the School Governing Body (SBG) that they were busy converting temporary teachers to permanent. There was a date when she received a text message which stated that anyone who was of the view that they qualified to for conversion, could apply for conversion to permanent. She applied directly to the Department during October 2021 but she did not receive any response. November stated that she was never informed during 2021 that her temporary employment contract would come to an end. She never signed any contract after 2019 and she was hopeful that it was a sign that she would continue working. She applied for her position when it was advertised (during December 2021), but she was not appointed. She had an expectation that she would be permanent, as her contract was constantly renewed.

During cross-examination

[17] November stated that her PGC was effective from 1 February 2022. She agreed that she did not have a teaching qualification from her start date until the termination date of her contract. She agreed that she was not a professionally qualified educator for the period she was employed at the school. It was put to the Applicant that she did not meet the requirements for conversion, because she was not professionally qualified. She stated that she was only left with one subject (research) to complete before she could obtain her qualification. November stated that she did not have the required qualification as per the advertisement (pages 82 and 83 of “R”), but she was appointed at the school with the qualification she had and she was also shortlisted after allowed to with the qualification she had, after applying for the advertised position in December 2021. She stated that it gave her hope that she would be appointed to the position.

[18] The Applicant was referred to pages 20 and 21 of “R” (Circular 0020/2020) which stated the following:
“Subject: Conversion of the employment of post level 1 educators from temporary to permanent in terms of section 6(b) of the Employment of Educators Act, 1998 (Act 76 of 1998)

6.3 The educator must satisfy the following criteria to be considered for the conversion of his/her temporary/contract status to permanent:
6.3.1 be professionally qualified for the education profession;
6.3.2 be suitability qualified to teach the subject and in the phase in which the conversion appointment will be made;
6.3.3 meet the inherent requirements of the post in which his or her conversion of appointment will be made; and
6.3.4 be registered with the South African Council for Educators (“SACE”).”

[19] The Applicant stated that according to the 2018 Personnel Administrative Measures (PAM) document, she qualified to be appointed permanently. It was put to the Applicant that she did not meet the requirements to be converted to permanent employment. The Applicant stated that she was supposed to be converted according to the PAM document of 2018.

[20] The Applicant was referred to page 59 of “R” (The Applicant’s Provisional SACE registration document) which stated the following: “Kindly note that the Provisional Registration of Student Educators by SACE (not applicable if professional qualification has been completed as indicated on the academic record and awaiting graduation).” [It must be noted for the record that the document also states the following: “This is to confirm that SACE received an application form from Agrinnette November on 9 January 2017. The application is being processed and the certificate will be issued as soon as the following documents are received in the office” certified copies of a PGCE certificate and a complete academic record indicating that the qualification has been completed.” The Applicant stated that the document was for SACE purposes and that she did not think that it had anything to with the PAM document.

[21] It was put to the Applicant that Mr. Lethunya had a discussion with her, after he became aware she was underqualified, and he informed her that she was given time until the end of 2021 to obtain her qualification. It was further put to the Applicant that she told Mr. Lethunya that she would go to Bloemfontein to register in order to obtain her qualification. November stated that she went to register during April 2022 and that she showed Lethunya the proof of her registration. Lethunya told her that he would give it to the School Governing Body (SGB). The Applicant stated that she was aware that a Post Graduate Certificate in Education (PGCE) was a requirement in order for her to be a teacher, but she was not aware that it was a requirement in order for her to become permanently appointed.

[22] The Applicant agreed that there would have been no dispute if she would have been converted to permanent.

THE RESPONDENT’S EVIDENCE AND ARGUMENTS

[23] The Respondent submitted a bundle of documents, consisting of 83 pages, numbered from page 1 to 83 (hereinafter referred to as “R”).

Mr. Phidiso Goodness Lethunya testified under oath as follows:

[24] He was the Acting Principal of the school where the Applicant was employed. He became the Acting Principal on 1 April 2021. The Applicant started during 2017 and her contract was terminated. She volunteered again and when student numbers started increasing, she was nominated to become a teacher. She volunteered during 2018 and thereafter she had been nominated to become a teacher. She was working on a contract basis. The Applicant was given time until end of December 2021 to obtain her qualification as she did not have her Post Graduate Certificate in Education. She needed that qualification in order to qualify as a teacher.

[25] Page 17 of “R” was e-mail correspondence he received from Head office:
“From: Stacey Pekeur
Sent: Friday 27 August 2021
Attention: The Principal
Subject: Conversion project: IINGINGA ZETHU SECONDARY

Dear Sir/Madam

Please see attached notification from PMPS iro the subject line. Could you please indicate which of the following educators you who like to convert as there are 8 CONTRACT EDUCATORS AND ONLY 3 VACANT PL1 POSTS AT YOUR SCHOOL.”
Please note that preference should be given to Funza Lushaka bursary holders and newly qualified educators. Conversions for Medical / Retired educators will not be processed.
…

Kind Regards
Stacey Pekeur
Human Resources Clerk
Directorate: Recruitment & Selection”

[26] Lethunya stated that it later happened that positions were advertised. The Applicant and other people applied. She was interviewed but she was not successful in her application to be permanently appointed or converted to permanent, as she was not professionally qualified as a teacher. He stated that the Applicant was not dismissed. She was informed that her contract would end at the end of December. He stated that they followed proper procedures with the conversions of the educators.

During cross-examination

[27] Lethunya stated that the time he had sent the WhatsApp correspondence to the Applicant, was not the first time she became aware that she was no longer in that position. He stated that the first time she became aware was when the position was re-advertised and she applied for the position and also attended the interviews. It was put to Lethunya that the Applicant had been at the school on contract for the longest period, when compared to the other teachers. He responded in the positive. [It must be noted for the record that the Applicant’s representative stated that she received her results 8 and 9 December 2021 on the university website, but received her formal qualification on 10 May 2022 when the graduation ceremony took place.

[It must also be noted for the record that both representative agreed that the Department did not send out any contracts to schools, for signature by educators, in respect of the contract periods for 2020 and 2021, due to COVID 19 pandemic and the national lockdown].

ANALYSIS OF EVIDENCE AND ARGUMENTS:

[28] Section 192 of the LRA states the following:
“Onus in dismissal disputes
(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”

[29] It appears from the evidence led by the Applicant, that her case in respect of her dismissal is based on the WhatsApp message she received from Lethunya on 17 January 2022, whereby he informed her that she was not supposed to report for duty at the school, as another person had been appointed to the position which the Applicant held. It also appears that the Applicant’s case in respect of her claim of a dismissal is further based on the fact that she was not converted to permanent.

[30] It is not disputed that the Applicant indeed applied for the position when she was informed that it was advertised. The advertisement was based on the conversion of the educators to permanent positions. It is not disputed that there were only three positions available at the school, while there were eight contract educators.

[31] The Collective Agreement concluded in the ELRC in 2018 states the following:
“4.2 Eligibility for conversion
4.2.1 A temporary educator may only be appointed permanently to funded. Substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.1…
4.2.1.2 the temporary educator qualifies for the post in question
4.2.1.3 the temporary educator is registered with South African Council of Educators (SACE)
42.1.4…”

[32] In Jones v CCMA and others (C 709/2018) [2021] ZALCCT 10 (handed down on
6 January 2021) the Court held that the question whether the Employer’s failure to
renew the fixed-term contract of employment constitutes a dismissal within the
meaning of section 186(1)(b) is a jurisdictional question. The standard to be
applied during review process is that of correctness. The Court further held that a
dismissal in terms of section 186(1)(b)(i) of the LRA is confined to determining
whether there was a reasonable expectation that a fixed-term contract should be
renewed and does not include an expectation about permanent employment on
the expiry of a fixed-term contract.

[33] The evidence place before me suggests that the Applicant was appointed as an
educator and on a fixed term contract basis. The contracts of educators, including
the contract of the Applicant, was not signed for the periods 2020 and 2021 and
the reason provided for that was due to the COVID 189 pandemic and the national
lockdown that was implemented. The Applicant, at the time of termination of her
contract, was earning above the prescribed earnings threshold, prescribed by the
Minister in terms of section 6 (3) of the Basic Conditions of Employment Act and
therefore, section 198B of the LRA, which states that a fixed term contract must be
in writing do not find application in respect of the Applicant.

[34] The evidence placed before me suggests that the Applicant’s fixed-term contract
was coming to an end at the end of December 2021. She was accordingly
informed of such and that she had to be qualified in order to be appointed to one of
the available positions. There were only three positions available at the school.
She did not qualify to be appointed in terms of the requirements to be converted as
stipulated in the Collective Agreement.

[35] The Applicant had failed to prove that there was a reasonable expectation created by the Respondent in respect of her contract being renewed. Clearly she was aware that the position she was teaching in, was to be filled in terms of a permanent conversion to the post and she applied for same.

[36] The Applicant’s fixed term contract term ended or expired at the end of December 2021.
[37] The Applicant had failed that she was dismissed by the Respondent.

AWARD

[38] The Applicant, Agrinnette November was not dismissed by the Respondent, Western Cape Education Department.

[39] The Applicant’s claim for unfair dismissal is accordingly dismissed.

Signature:

Commissioner: Marlon Plaatjies

Date: 31 October 2022