ELRC688-22/23NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC688-22/23NW

In the matter between


K D MWALE Applicant

and

EDUCATION DEPARTMENT OF NORTH WEST Respondent

Arbitration Award

Venue of the Arbitration: Via Zoom
Date: 30 March 2023
Parties present: Arbitrator Mr. D H Smith
Applicant’s Representative: Mr. S J Mphakathi
Applicant Present Ms. K D Mwale Employer’s Representative: Ms. B Phuswane

DETAILS OF HEARING AND REPRESENTATION

1. The matter was heard via Zoom on 30 March 2023.

2. The Applicant, Ms. K D Mwale (Mwale), was represented by Mr. S J Mphakathi, an attorney. The Respondent was represented Ms. Boity Phuswane (Phuswane).


THE ISSUE TO BE DECIDED

3. Whether Mwale was unfairly dismissed or not in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (“LRA”), and if so, to determine the appropriate remedy.

BACKGROUND

4. Mwale had been employed by the Respondent as a post level 1 educator earning R15736.00 per month. She had been employed on limited duration contracts (LDC) since 2014. She went on maternity leave on 27 January 2022, returning on 5 July 2022. On 30 September 2022 she was told her contract had come to an end.

PRELIMINARY ISSUE

5. The parties were in three provinces. I was in Mpumalanga with loadshedding at 09h00. The Applicant was in Gauteng with loadshedding at 12h00. The Respondent was in North West and could not connect due to cable theft.

6. It was agreed that the matter would proceed at 11h00. The Applicant and I managed to connect. The Respondent was unable to. To expedite the matter, I heard the Applicant’s evidence and will accept written argument from the Respondent by 11 April 2023.

RELIEF SOUGHT

7. Mwale sought retrospective reinstatement.

SUMMARY OF SUBMISSIONS

The Applicant’s evidence
8. Mwale testified under oath that:

8.1. On 2 August 2022 she was given an appointment letter for the period 1 January to 31 August 2022. She did not sign it.

8.2. Mphakathi intervened and asked them to withdraw it.

8.3. On 5 September 2022 she was called back and worked until the end of September 2022, when she was told her contract had ended.

8.4. She heard nothing further from the Respondent

The Respondent’ s evidence

9. Phuswane submitted:

9.1. Mwale submitted that she was appointed on limited duration contracts. She was appointed on annual fixed term contracts from 2014, as she was not fully qualified as an educator and only a provisional SACE certificate.

9.2. In 2022, the Respondent advertised promotional posts (PL 2 to PL 4) educator There was an instruction that all educators who were appointed against promotional post be issued with one-month notices of termination of their contracts.

9.3. Mwale was amongst those appointed against promotional posts was issued with a notice of termination of contracts around August 2022 hence she worked until 30 September 2022. This action was meant to pave way for the newly appointed incumbents to those posts.

9.4. Mwale was, therefore, never dismissed but her contract came to an end due to an eventuality that the respondent had a duty to appoint relevant people to the post. Mwale made it clear in her submissions that she was told that her contract came to an end following the one-month notice period that she served, in line with s37 of the Basic Conditions of Employment Act (BCEA).

ANALYSIS

9.5. Secion 186(1) of the LRA defines a dismissal as when an:

9.6. Employer has terminated employment with or without notice;

9.7. Employee employed in terms of a fixed term contract reasonably expected the employer –
9.7.1. To renew a fixed term contract of employment on same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it, or

9.7.2. To retain the employee 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.

9.8. Employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment.

9.9. Employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another.

9.10. Employee terminated employment with or without notice because the employer made continued employment intolerable for the employee.

9.11. Employee terminated employment with or without notice because the new employer, after a transfer in terms of section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.


10. Section 192 of the LRA provides that:
“In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and
if the existence of the dismissal is established, the employer must prove that the dismissal is fair.”
11. It is common cause that Mwale was employed on several fixed term contracts. These were against promotional posts. These posts were advertised and filled in 2022. There is no evidence that Mwale applied for or was appointed in these posts. Mwale’s fixed term contract ended on 31 August 2022. She was called back to work for the month of September 2022. At the end of September 2022 her employment ended.

FINDING

12. The termination of Mwale’s employment on 30 September 2022 did not constitute a dismissal as envisaged by Section 186(1) of the LRA.

AWARD

13. The Applicant, K D Mwale, has not discharged the onus to prove that she was dismissed.

14. The matter is dismissed.


Dated at Maanhaarrand on 21 April 2023