ELRC875-21/22NC

Panelist: Selolong Mosoma
Case No.: ELRC875-21/22NC
Date of Award: 22 November 2022

In the ARBITRATION between:

WALTER CAROLUS
(Union / Applicant)

and

Department of Basic Education: Northern Cape Provincial Government

(Respondent)

Applicant’s representative: Mr. McCreath
Applicant’s address: McCreath Inc.

Telephone:
Telefax:
Email

Respondent’s representative: Mr. R Britz
Respondent’s address: Department of Education Northern Cape


Telephone:
Telefax:
Email. 


ARBITRATIO AWARD


DETAILS OF APPLICATION

2. An arbitration hearing between Mr. Carolus and Department of Education Northern Cape Provincial
Government was conducted on 01 November 2022.
3. The Applicant, Mr. Walter Corulas was present and represented by Mr. McCreath from McCreath
Attorneys, the Respondent, Department of Education was represented by Mr. Britz – Assistant Director:
ERPM.
4. The Arbitration proceedings were both manually and digitally recorded.

BACKGROUND TO THE ISSUE
5. The Applicant commenced his employment with the Respondent on or around April 2019. On the 01 January 2021, he concluded a fixed-term contract with the Respondent for the period 01 January 2021 until 31 December 2021.
6. The Applicant was served with a notice on 29 November 2021, the notice indicated that the Applicant’s fixed-term contract would be coming to an end by the 31 December 2021.
7. The Applicant referred a dispute of a reasonable expectation of renewal of his fixed-term contract to the Council (ELRC), in terms of section 186 (1)(b) of the Labour Relations Act 66 of 1995 as amended (LRA)
8. Both parties had bundle of documents; Applicant’s bundle was named Bundle A and the Respondent’s bundle was named Bundle R. Parties agreed that the documents were what they purported to be. The Respondent had no witnesses, whereas the Applicant had 1 witness, and testified himself.
ISSUE TO BE DECIDED
9. I must decide whether the Applicant had a reasonable expectation of the renewal of her fixed-term contract; and
10. If so, I must determine the appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
CASE FOR THE APPLICANT
11. The Applicant was employed by the Respondent as substitute educator on post level one from April 2019, at Francois Visser Primary School.
12. On the 01 January 202, he was offered another fixed term contract ending on 31 December 2021. He stated that he was interviewed by the school principal prior to his appointment as a teacher at Francois Visser primary school. He further stated that the principal told him that the post available was a substantive post and there were other four candidates appointed in that post before him.
13. He further stated that he had an expectation that he will be appointed permanently given the fact that the post was a substantive post, meaning it can be converted into permanent post. He indicated that he always had an impression that he would be employed until he reaches retirement age.
14. Lastly, he stated that he was dismissed on the 31 December 2021, therefore, he sought a relief of six months compensation.
15. Under cross-examination he conceded that he was served with notice of termination on the 29 November 2021
16. CASE OF THE RESPONDENT
17. No submissions were made except for the closing arguments.
CLOSING ARGUMENTS
18. Both parties submitted oral closing arguments and submission of both parties were carefully considered. I will not repeat what was said by the parties, as the contents basically mirror what was put to the parties during the leading of evidence and cross-examination.
ANALYSIS OF EVIDENCE AND ARGUMENT
19. Section 192 of LRA, Act 66 of 1995 (as amended) stipulates the following.
a) Any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.
b) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.
20. Section 186 (1) (b) of LRA says an employee employed in terms of fixed term of contract of employment reasonably expected the employer to-
i) To renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favorable 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 favorable terms or did not offer to retain the employee.
21. In this matter, I have already indicated earlier that the onus to show that there was a dismissal rests on the Applicant and if successful in doing so, the Respondent has a duty to show that the dismissal was for a fair reason. In the present case, the evidence presented during the arbitration proceedings by the Applicant which sought to show the existence of reasonable expectation for the renewal of the fixed term contract or be retained in the employment on an indefinite period. The Applicant made oral submission, documentary evidence and written submission as to what happened regarding the termination of his fixed term contract.
22. In challenging the version of the Applicant, the Respondent focused on the fact that the provision of the fixed term contract provided for start and end date for the contract. And the Respondent further relied on the nature of the Applicant’s contract of employment.
28. The Applicant on the other hand testified that he expected his contract to be renewed until his retirement age. The Applicant further testified that he was appointed on a substantive post, meaning it can be converted to permanent post.
29. The LRA does not provide a definition of the concept “reasonable expectation’. The concept has however been defined by case law to include.
a) Equity and fairness
b) Existence of substantive expectation that the fixed term contract would be renewed.
c) The employee, subjectively expecting the contract to be renewed or extended.
d) Objectively factors that supports the expectation.
30. In Dierks v University of South Africa, the court held that the following factors are important in the assessment of whether there existed an expectation that the fixed contract would be renewed.

“A number of criteria have been identified as considerations which have influenced the findings of the past judgments of the industrial and Labour Appeal Courts. These include an approach involving the evaluation of all the surrounding circumstances, the significance, or otherwise of the contractual stipulation, agreements, understandings by the employer, or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose of or reason for concluding the fixed-term contract, inconsistent conduct, failure to give reasonable notice, and (sic) nature of the employer’s business.”
31. It is trite law that if a reasonable expectation had not been proven, there would be no dismissal.
32. 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 justifies 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.
32. The Applicant relied on the following grounds to prove that a reasonable expectation was created by the Respondent that his contract would be renewed.
1. That he was appointed on a substantive post, meaning it was not a temporary or governing body post and it can be converted into permanent post.
2. He had an expectation that he will be appointed year on year until his retirement.
33. It is common cause that the Applicant was employed on a fixed-term contract. It is further common cause that the Applicant was served with notice on 29 November 2021, that his fixed-term contract would be coming to an end by 31 December 2021.
34. Turning to the facts of this case, the Applicant maintained throughout the proceedings that reasonable expectation was created by the Respondent since from 2019, that he will be given a year-to-year contract until he reaches his retirement age. The Applicant did not lead any evidence to prove how and who created the expectation except to say that he was appointed on a substantive post. The Applicant failed to demonstrate that there was guarantee that his contract will be renewed until he reaches retirement age.
35. The question that one must ask is whether the expectation of the Applicant is reasonable or not? The answer would be no, the expectation was unreasonable. This I say, because taking into consideration the Applicant contract of employment which was very explicit that the Applicant is employed a substitute teacher.
36. Given the aforesaid circumstances it is, in my view, unreasonable for the Applicant to have expected that his contract with Francois Visser Primary School would be renewed.
38. The Applicant failed to sustain the claim that he had a reasonable expectation that his contract would be renewed on the same or similar terms. the Applicant failed to discharge the onus to prove that he was dismissed.
39. It is my view that the totality of the evidence and circumstances of this case supports the Respondent's contention that there was no reasonable expectation created by the Respondent that the Applicant’s contract would be renewed. The facts that support my view that there is no reasonable expectation created by the Respondent are that; there is undisputed evidence that the Applicant’s contract was very explicit that he was employed as substitute teacher. The fact that he was appointed on a substantive post that itself cannot create an expectation that his contract was going to be renewed. Again, the Applicant failed to prove how the expectation or who created an expectation his contract will be renewed.
40. Considering the above, it is my conclusion that the Applicant has failed to show that he had reasonable expectation that his contract would be renewed.
41. I find that termination of the Applicant’s contract does not amount to a dismissal in terms of section 186 (1) (b) of the LRA.
AWARD
43. The Applicant’s contract termination does not amount to a dismissal in line with the provisions of section 186 (1) (b) of the LRA.
44. The Applicant’s case is dismissed.

SIGNED AT BLOEMFONTEIN ON THIS 22th DAY OF November 2022.

Selolong Mosoma
ELRC Arbitrator