ELRC148 - 22/23 WC

Commissioner: Gail McEwan
Case No.: ELRC148 - 22/23 WC
Date of Award: 14 December 2022

In the ARBITRATION between:

SIMANGILE MTSHAKAZANA
(Applicant)

and

THE WESTERN CAPE DEPARTMENT OF EDUCATION
(Respondent)

Union/Applicant’s representative: Lorens Odendaal (attorney - Southern Cape Law George)

Respondent’s representative: Mzukisi Gcuwa
 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. Arbitration was held on 5 December 2022 and was heard virtually with the consent of the parties. Present was Simangile Mtshakazana (applicant) who was represented by Lorens Odendaal (Attorney - Southern Cape Law George). The Western Cape Department of Education (respondent) was represented by Mzukisi Gcuwa (Director Corporate Services South Cape TVET College). The Certificate of Outcome declaring the matter unresolved at conciliation is on file and is dated 2 November 2022. These proceedings were digitally recorded. On file is a condonation ruling dated 25 October 2022 in which condonation was granted. Also on file is a postponement ruing dated 2 December 2022 in which the request for a postponement had been denied.

2. The employer is a TVET College based in Beaufort West offering business courses at the NQ levels 4 to 6 after which successful candidates are awarded a diploma in the field of studies undertaken.

THE BACKGROUND TO THE DISPUTE

3. Mtshakazana started working for the respondent on 11 March 2020 on a series of fixed term contracts as a post level 1 lecturer in computer practice; she earned R17 644.25 per month and claims she was dismissed on 31 December 2021.

THE ISSUE IN DISPUTE

4. I am required to determine on a balance of probabilities whether the dismissal of Mtshakazana was fair.

5. I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.

SUMMARY OF EVIDENCE AND ARGUMENT

The respondents’ version

6. Mzukisi Gcuwa (Director Corporate Services) testified that Mtshakazana was appointed as a lecturer at the Beaufort West Campus on a contract which ended on 31 December 2021. The number of lecturers engaged on fixed terms contracts are determined by the number of students. When the number of students dropped at the end of the semester this linked to the number of contract lecturers required with each class having a minimum of thirty students. The second semester runs from July to December each year and when there are too few students a contract lecturer is not engaged because the students are spread amongst the classes of the permanent lecturers. The system is that students first get allocated to permanent lecturers; then those on contract with longer service; Mtshakazana was relatively new to lecturing and there were insufficient students to retain her services as a contract lecturer. Computer practice cuts across all five courses. The campus had insufficient students to warrant retaining Mtshakazana on further as a contract lecturer. In January 2022 the registration was down aggravated by the late publication of the 2021 matric results. There were simply insufficient students to enter into new contract with Mtshakazana. On ER bundle page 1 is the letter of appointment for Mtshakazana which is dated 6 August 2021 and confirms her appointment on contract for the semester 15 June 2021 to 31 December 2021. In the contract it states that: ‘this contract is dependent on condition that student numbers and the College reaches its PQM (Package Qualification Mix). In the event none of these conditions are met, the College reserves the right to terminate this contract.’ Mtshakazana had accepted the terms of the contract and signed such acceptance. In clause 14.1 of the contract it states that: ‘Employment shall cease on the following date: 31 December 2021, but shall not exceed a twelve (12) month period in either instance, such as termination shall not be construed as dismissal, but shall be the completion of the appointment.

7. In cross-examination and with reference to ER bundle page 10 Gcuwa confirmed that there had been a decline in student numbers. Gcuwa explained that the twelve month period meant that it only related to a single contract. There was nothing to add in re-examination.

8 Linda Khoza (Programme manager) testified that at the Beaufort West Campus she was responsible for lecturers doing the business courses and had been at the College since 1 September 2019. Mtshakazana had been appointed during her time at the College. The PQM informs the number of students at the NQ4, NQ5 and NQ6 levels. Estimations are done on the pass rate of the previous year for all NQ levels. The student numbers determine the lecturers required and these numbers could change. The more the students then the more lecturers will be required – but when the student numbers drop it means that fewer lecturers are needed. Mtshakazana did NQ4 entry level and her appointment had been linked to the number of students. Khoza stated that for example there had been no intake of students in the first semester of 2020 due to Covid-19. In 2022 the NQ4 enrolment declined so groups of students were lost due to funding issues. In the courses on offer management assist and computer practice were taken away - that only left the subjects of human resources, public management and three programmes were run. Some lecturers in a day had to teach the same subject twice. The student numbers required only two lecturers - one who was permanent and the one who had been on contract since 2014. The student numbers impacted on the contract lecturers; the number of teaching hours to allocate and when programmes are lost it means that lecturers will also be lost. The principle of LIFO (Last In – First Out) is applied amongst the contract lecturers and performance is not included. Mtshakazana was not the only one who lost her contract due to the student levels. Different programmes were involved and Mtshakazana does computer practices. Mtshakazana mainly does NQ4 as she is a relatively new lecturer. The student numbers were the only reason that the contract of Mtshakazana had ended. In level NQ6 students get taken to other campuses when there are less than twenty students.

9. In cross-examination Khoza explained that the spreadsheet on ER bundle page 10 reflects the number of students as at July 2021. Mtshakazana only taught NQ4 but in the spreadsheet (EE bundle page 12) she had hours at NQ6 level due to there being no intake. It was put to Khoza that Mr. Merrington taught office data processing with 119 students. Khoza explained that Mtshakazana did not teach that subject. Mr. Derchsen and Merrington had taught NQ4 to 64 students and also information processing to 113 students. In the next semester they had taught 113 students in computer practice at NQ4 level. It was put to Khoza that this was greater than the minimum student requirement and Khoza pointed out that Derchsen was permanently employed. The minimum time is twenty five minutes and the maximum time is thirty hours per week. It was pointed out that Merrington had been booked for four hours instead of five. Khoza explained that the hours were reduced if there were insufficient rooms and fewer lecturers once they exceeded thirty hours. There could be insufficient students to warrant placing another lecturer as Merrington had been on contract since 2014. It was put to Khoza that Mtshakazana was better qualified than Merrington of which Khoza had no idea. Referring to ER bundle page 20 it was pointed out that Merrington produced excellent results. In an email dated 2 December 2022 from Khoza to Gcuwa it was stated that the allocation of subjects is done according to qualifications and campus needs. Khoza confirmed that she was aware that Mtshakazana had lodged a grievance against her.

10. In re-examination Khoza confirmed that the grievance was not part of the criteria when allocating classes. Khoza never decided on the number of lecturers as these got approved by the Central Office who mixed subjects and campuses. The Central office is the principal and his deputy. Khoza and the campus manager do the allocations of students and hours.

The applicants’ version

11. Simangile Mtshakazana testified that her letter of appointment is dated 6 August 2021 for the semester starting 15 June 2021 to 31 December 2021. Mtshakazana had already been lecturing for one month before she received the letter of appointment and had been paid for the period 15 June 2021 to 6 August 2021. Mtshakazana lectured in computer practice which is a mandatory subject for five classes. Normally she lectured six classes a day with about thirty students per class. NQ4 students rolled over to the next year at level NQ5. Mtshakazana can also lecture at levels NQ5 / NQ6 and had been on a six month contract. Student numbers were not shared with Mtshakazana although her next contract depended on these numbers. Mtshakazana went to the campus manager Waleed Abdullah who told her that her contract was not renewed as the findings had been received from the grievance she had lodged against Khoza. Abdullah had accepted the grievance submitted by Mtshakazana and had commented that the allegations she made were serious so her contract may not be renewed. Mtshakazana received the grievance outcome on 19 January 2022. Referring to EE bundle page 37 in an email from Zoleka Maimane (ASD : HRM) dated 19 January 2022 Mtshakazana was told that: “we do not get involved in renewal of contracts at campuses as that discretion falls within the ombid and delegation of each campus management team. Such queries should be addressed with the campus manager.” Mtshakazana had lodged a grievance against her supervisor which Abdullah had said negatively affected her. Mtshakazana emphasized that she lectured a mandatory class; had a diploma in management and had assisted at the Oudtshoorn campus. The classes were moved to another lecturer (Merrington) when Mtshakazana was not appointed for the following semester. Merrington is only a lecturer and does not have a diploma which equates to a matric plus a further three years’ of study. Mtshakazana believed that qualifications were therefore not taken into account.

12. In cross-examination it was put to Mtshakazana that she was aware of the conditions linked to her contract. It was explained that Mtshakazana, Jackie De Bruin, and A. Minnie had all not been in the second semester. Further that this meant that Mtshakazana had not been singled out as the cut in the number of lecturers was across the board. Mtshakazana stated that Abdullah had said her contract would be affected if she lodged a grievance. It was pointed out to Mtshakazana that the investigating officer was not based at the Beaufort West campus so was independent. It was put to Mtshakazana that she held that her grievance then impacted on her package but it was unknown why Abdullah threatened if a grievance was lodged then her contract would not be renewed. Maimane had responded to the grievance of Mtshakazana in an email dated 19 January 2022 and it was put to Mtshakazana that the grievance is therefore not linked to the non-renewal of her contract. It was put to Mtshakazana that her grievance had been dealt with offsite. Allocations were done by campus management i.e. Khoza and Abdullah. Maimane as HR had signed off the grievance on 19 January 2022.

13. In re-examination Mtshakazana said she looked at the student numbers over the last two semesters. Mtshakazana agreed she had been appointed in the second semester of 2021 when no new lecturers should have been appointed in 2022. Mtshakazana said she had expected to get a further contract.

14. It was agreed that both parties would send in their closing arguments by no later than 17h00 on 12 December 2022. Closing arguments were received from both parties, the contents of which have been noted. I would like to point out that in terms of section 198B of the LRA finds no application in this dispute as Mtshakazana earned above the 2021 BCEA threshold of R211 596.30.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

15. This matter was referred as an alleged unfair dismissal. In September and Others v CMI Business Enterprise CC [2018] ZACC 4, the Constitutional Court considered, amongst other issues, whether a commissioner is bound by the referring party's categorization of a dispute in conciliation proceedings. The Constitutional Court accepted that the general rule is that the referral form and certificate of outcome constitute prima facie evidence of the nature of the dispute conciliated. This decision is in line with the plethora of Labour Appeal Court and Labour Court judgments where it had been held that the commissioner is not bound by what the parties select in their referral forms as the nature of the dispute. It is the commissioner's duty to determine the true nature of the dispute between the parties. This judgment further illustrates the Constitutional Court's approach that substance must precede formalism and that in subsequent proceedings an enquiry may be made on the true nature of the dispute conciliated, notwithstanding the categorization of the dispute by the referring party or the commissioner.

16. Mtshakazana started working on 11 March 2020 and thereafter had her contract renewed with the final contract running from July 2021 to December 2021. Mtshakazana was fully aware, as it is stated in her contract, that “the employment contract is dependent on condition that student numbers realises and the College reached its PQM. In the event none of these conditions are met, the College reserves the right to terminate this contract.” Mtshakazana signed acceptance of the terms of the contract. Mtshakazana deposed that she had expected her contract to be renewed.

17. Section 186 (1) (b) of the LRA extends the definition of a ’dismissal’ to include an instance where “an employee employed in terms of a fixed-term contract of employment 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; or 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 favourable terms, or did not offer to retain the employee.” I find on a balance of probabilities that the true nature of the dispute falls under this section as Mtshakazana had been employed in terms of a fixed-term contract of employment and claims she reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer did not renew it.

18. In the recent decision of Naidoo v Nsibanyoni NO and Others (JR54/18) [2020], the Labour Court had to determine an application to review and set aside a CCMA arbitration award where the Applicant alleged that she had been unfairly dismissed. Section 186 (1) (b) of the LRA refers to a “reasonable expectation”, but as the judge pointed out (at [10]), “A ‘reasonable’ expectation is used interchangeably with the term ‘legitimate’ expectation. I am now required to determine whether Mtshakazana had a reasonable / legitimate expectation that her contact would be renewed,

19. It is accepted that Mtshakazana was not shown the spreadsheet containing the expected number of students for 2022. This spread sheet shows a significant drop of the expected numbers of students for 2022. In the draft Derchsen (who was identified for migration) had a total of 23 students (ER bundle page 17) and Merrington had a total of 120 students for the course involving computer practice. Due to low student numbers for the Management Assistant course, this course had to be removed from the campus and that meant enrolment numbers were sufficient only for Human Resources and Public Management courses, affecting lecturer subject packages. With those number of students expected there had been no need for additional contract lecturers and hence Mtshakazana plus two others had not had their contracts renewed. There was no need operationally for the employer to retain those on contract for a longer period of time – a right that they had reserved in the letter of appointment which was based on the PQM of College.

20 Mtshakazana held the belief that the non-renewal of her contract was due to her having lodged a grievance against Khoza, as her supervisor. No details of the grievance were submitted other than Mtshakazana referring to what Abdullah was alleged to have told her when he had accepted her grievance. If that is really what Mtshakazana believed than it is unacceptable that Abdullah was not called / subpoenaed to testify at arbitration, This omission is seen as Mtshakazana not really believing her version and somewhat clutching at straws with this unsubstantiated evidence.

21. Taking all of the above into account Mtshakazana has failed to establish a legitimate / reasonable expectation of the renewal of her contract and subsequently this case is dismissed.

AWARD

22. Simangile Mtshakazana failed to establish that she had a reasonable expectation of the renewal of her contract in terms of section 186 (1) (b) of the LRA and consequently this case is dismissed.

Gail McEwan
COMMISSIONER