ELRC824-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HEARD AT MTHATHA

Case No: ELRC824-22/23EC

In the matter between

JOSEPH MAVHERE Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 5 June 2023

SUMMARY: Section 186(1)(b) - Labour Relations Act – Reasonable expectation of renewal of fixed-term contract


ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a) of the Labour Relations Act 66, 1995, (the LRA). The Applicant, Joseph Mavhere, was represented by Mr M. Zilani, an attorney and the Respondent, Department of Education: Eastern Cape, was represented by Mr Khwezi Dalasile, the Assistant Director: Labour Relations.

2. The proceedings were recorded electronically.

3. Both parties agreed to submit written closing arguments by no later than 22 May 2023 and indeed both parties complied.

ISSUE TO BE DECIDED

4. I am required to determine whether the Applicant was dismissed by the Respondent, and if so, determine an appropriate remedy.

BACKGROUND TO THE DISPUTE

5. The Applicant worked for the Respondent on a fixed-term contract for the period 1 July 2018 to 31 December 2021. He alleges that he was dismissed on 15 May 2022, without notice and the reasons given are that the department no longer employed foreign nationals. He is challenging procedural and substantive fairness of the dismissal and as a remedy, he is seeking reinstatement.

6. The Respondent disputes that the Applicant had been dismissed but that the fixed-term contract expired and was not renewed or extended. The Respondent further conceded that the Applicant was issued with a letter placing him due to operational requirements in a new school from 21 February 2022. He was informed of the error and advised that it is not a renewal of contract.

EVIDENCE AND ARGUMENT
Applicant’s Version

7. The Applicant’s version was led through his oral evidence and aa bundle of documents, the summary of which is outlined below: -

8. Mr Joseph Mavhere (the Applicant) testified that he is a Zimbabwean national. He rendered services at Bhekabantu Senior Secondary School, and he worked at Mhlanganisweni Senior Secondary School before going to Bhekabantu.

9. He was appointed on a temporary basis on fixed-term contracts that were renewed and the last fixed-term contract being longer than others from 1 July 2018 to 31 December 2021. He had an issue with the Principal and had to alert the department about the issue of how he was treated. They resolved that he must be taken to another school, and in September 2021 he went to Bhekabantu SSS, which is the outcome of the department’s intervention. He started at the new school on 2 September 2021.

10. He was given a ‘Secondment Letter’ which was sent to the Principal of Bhekabantu SSS. The letter reads:
‘This document serves as a formal request to you, to kindly accept Mr J. Mavhere, (PersalNo: 55502300) as he is being seconded to your school until your school gets the permanent incumbent in your vacant post.’

11. He was coming from Mhlanganisweni SSS and was recruited to teach Mathematics, and the school had Maths Literacy and Technical Mathematics which was phased out in 2020. He then went to Bhekabantu SS as per secondment letter. The move from the school caused great harm to the learners as he was doing revision at the time. He was then told to wait until his contract is renewed and that hee was empowered by the Minister of Home Affairs’ decision to extend the Zimbabwean Exemption Permits.

12. In June 2022 he was at Bhekabantu SSS on the first day of schools opening. He doesn't know what happened after he left, regarding the school getting a permanent incumbent but at the time he left the school the vacancy had not been filled. He rendered services from January to May 2022. The Applicant received a letter from the Acting District Director, Dr B.B. Beyana stated that approval was granted for his placement in a post Educator (PL1) at Bhekabantu SSS with effect from 21 February 2022. He was also called to complete the Assumption of Duty form. In terms of the document there was no end date but he assumed that he was appointed on a temporary basis.

13. He then enquired from the Principal regarding his payment and was told it should come with a recommendation letter and the Principal did the letter but it was not accepted by HR early in May. He was told the department no longer employs Zimbabwean Educators and that if a school required one the recruitment had to be done by the SGB and that they can place another teacher from their database. He was told he would not be employed even the second time he visited the HR offices. He was not given a notice of termination by the department.

14. The Applicant stated that he is seeking payment for the time he worked and beyond until December 2022. In the absence of a work permit he enjoyed the Zimbabwe Exemption Permit (ZEP) which required employers not to terminate employment contracts and banks not to close their bank accounts. The ZEP was extended for 12 months to allow them to arrange for visas or work permits. He applied for his permit on 20 October 2022 and has a VFS receipt which makes him legal.

15. Under cross-exaamination theAapplicnat stated that he recognises the secondment letter as a contract even though it is addressed to the Principal of Bhekabantu SSS.

16. The argument on behalf of the Applicant was based on the following:

a. In terms of Dierks v University of South Africa(J399/98)[1998] ZALC the following factors must be considered:
i. Significance or otherwise of the contractual stipulation and agreements;
ii. Undertakings by the employer;
iii. Practice or custom of renewals;
iv. Availability of work;
v. Purpose or reason for concluding a fixed-term contract;
vi. Inconsistent conduct;
vii. Failure to give reasonable notice;
viii. Nature of the employer’s business.
b. King Sabatha Dalindyebo Municipality v CCMA & others (2005) 26 ILJ 474 (LC).
c. McInnes vv Technikon Natal (2000) 21 ILJ 1138 (LC).
d. SACTWU and another v Cadema Industries(Pty) Ltd [2005] 8 BLLR 790(LC)
e. That the Applicant established that he was dismissed.

Respondent’s Version

17. The Respondent led the evidence of one witness,,Posiza NettieGqqaaleni, theDeputy Director:HR at OR Tambo Coastal District. She stated that she is aware of the Applicant’s situation. She stated that in 2018 the department decided to reduce the employment of foreign nationals because the Eastern Cape had many new entrants who are qualified. Foreign nationals were used while the province lacked skills. From 2018 the department did not renew contracts in Languages, History and Commercial subjects. The department accepted submissions only for Mathematics and Science and approval for extensions rested with the HoD and not with the District Director.

18. In 2018 submissions were made in respect of the Applicant and were told to draft a contract that is aligned to his work permit to avoid annual renewal as they previously were contracted for 6 months. Schools are allowed to make their own arrangements through SGB appointments should they wish to retain the foreign educators and the department is not responsible. In the Applicant’s case 31 December 2021 was the expiry date of his work permit. The department wrote to schools and advised them not to allow foreign nationals to work outside their contracts because the expiry date of the permit is the expiry date of the contract. Mhlanganisweni SSS was aware that the Applicant’s contract expires on 31 December 2021.

19. HR was not made aware of the secondment as on the system he was paid under Mhlanganisweni SSS. The secondment was not captured on the system by HR and the termination happened whilst the Applicant was still at Mhlanganisweni SSS. He suspects that the Applicant was identified in September since that is the periodthe MEC declares a post basket as he was on the system then hence the letter of ‘operational requirements’. The identification was done at the right time when the Applicant was still in the system, but the placement letter was issued late as it was done while he was out of the system.

20. The school should have moved the Applicant to the vacant post and inform the department to process such on the system. There can be no secondment until the post is filled. Ms Gqaaleni stated that secondment is a temporary arrangement to address a particular situation and one would still belong to his school and also does not change or amend the contract and the contract supersedes secondment.

21. Ms Gqaleni stated that there was no approval of a new contract as the work permit would be requested. It may be that Bhekabantu SSS was not aware of the situation with the Applicant’s contract. The system reflects that the Applicant’s contract expired, he was therefore not dismissed. The contract expired with the work permit as agreed by parties to the contract. Had the Applicant been dismissed before 31 December 2021 the department would have breached the contract.

22. Under cross-examination Ms Gqaleni stated that indeed the Applicant was seconded to Bhekabantu and still under Mhlanganisweni. She stated that the placement letter was issued in error whilst the Applicant was out of the system and the department is willing to remunerate the Applicant for the period he worked. She confirmed that he was not receiving a salary and the letter was withdrawn in May 2022.

23. Arguments for the Respondent:

a. Collective agreement 3/2016 states that transfers are applicable to serving educators.

b. There was no valid contract at the time of issue of the placement letter, and it therefore could not revive an expired fixed-term contract.

ANALYSIS OF SUBMISSIONS

24. Section 192 of the LRA states as follows:

a. In 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.

25. In this matter the dispute centres around non-renewal of the Applicant’s fixed-term contract. The Respondent disputes the existence of the dismissal. It is common cause that the Applicant was employed on a fixed-term contract from 1 July 2018 to 31 December 2021. After the expiry date of the contract the Applicant was given a ‘placement letter’ with effect from 21 February 2022, which letter stated that approval for his placement as a Post Level 1 Educator at Bhekabantu SSS where he served until 15 May 2022. The author of the letter is the Acting District Director and states that the placement is due to operational requirements. It is on the basis of this letter that the Applicant believes that he was employed and believes he had a reasonable expectation of renewal.

26. In University of Cape Town v Auf der Heyde [2002] BLLR 1316 (LAC) the Court held that the test for reasonable expectation was two-fold. They first dealt with whether the Employee actually expected the contract to be renewed and the second whether the expectation was reasonable.

27. The Respondent in its evidence stated that the department took a decision in 2018 not to renew fixed-term contracts of foreign educators, particularly in Languages, Commercial subjects and History. They could only consider scarce skills particularly for Mathematics and Science, subject to submissions being approved by the HoD. The Respondent also decided to link the contracts to employees’ work permits as is the case with the Applicant’s contract.

28. The Applicant, in September 2021 was seconded to another school and in February 2022 placed at Bhekabantu SSS due to operational requirements, the details of which are not clear. According to the Respondent the correspondence gives effect to the decision taken in September 2021 whilst the Applicant was still in service and that the decision is issued late whilst the Applicant was no longer in service. This is accompanied by a report from PERSAL that shows that the Applicant’s fixed-term contract expired on 31 December 2021.

29. Coming to the argument relating to reasonable expectation of renewal, regard must be had to NUM obo Mpaki v CCMA and others JR1983//2014 (2016) ZALCJHB where the Court identified factors which may influence an objective basis for the expectation as follows:

Agreements

30. In this matter there is no agreement entered into by the parties in respect of the renewal.

Undertakings by the employer

31. In this matter the Respondent placed the Applicant in position outside his fixed-term contract. The Applicant was told to wait for the contract to be renewed. It is the Respondent’s uncontested evidence that such authority rested with the HoD. There has been no interaction with the HoD by any of the persons that were interacting with the Applicant. There has further been no submission made for the HoD to approve. There is therefore no undertaking by the Respondent in that regard. Only interaction at district level, which had no authority.
Custom or practice in regard to renewal

32. The Applicant’s last fixed-term contract was for 3 years, after the Respondent took a decision to only appoint for scarce skills, as was the case with the Applicant. In processing renewals they would request one’s work permit and other accompanying documents. There was no request for the Applicant to furnish such information. That is indicative of the fact that there was no intention to renew his contract, coupled with a lack of a submission to the HoD. There was therefore no letter of appointment issued, against which the Applicant would expect a contract to sign. There are further no changes on PERSAL to effect the secondment and placement which therefore shows that this process was done outside the normal human resources operating procedures.

Availability of the post

33. It is the Applicant's Evidence that some subjects were phased out and he was also seconded to Bhekabantu, ‘until a permanent incumbent is found’. It is not clear whether there was a vacancy and also not clear whether there was any recruitment process embarked upon. The Applicant also does not know what happened with that position after he left. There is therefore no clarity as to why it seems he would not be considered for such a post but it seems he accepted that he would be there until they find a permanent incumbent. The Respondent stated that they were phasing out foreign educators given that they had new entrants within the province. It may therefore be that there was no position for Mr Mavhere given the conditions of his employment.

34. There is the letter explaining the secondment that his stream was phased out and the intention was to keep him working until expiry of his fixed-term contract. Secondly that he could not be employed without a work permit



The purpose or reason for concluding the fixed-term contract

35. The reasons provided by the Respondent were such that they wanted to attract scarce skills until they have new entrants in the province. The evidence is such that there were indeed new entrants and a decision to no longer employ foreign nationals for Languages, History and Commercial subjects had already been taken in 2018. In the case of the Applicant he got a renewal in 2018 based on the scarce skills for Maths and Science. There is no longer that need according to the Respondent. Further the contract had to be aligned with the work permit and that is the reason they entered into a fixed-term contract. The letter of appointment makes it clear that the nature of employment is temporary.

Inconsistent Conduct

36. There is no evidence suggesting that there was any inconsistent conduct, save for the placement letter that was issued after the contract expired which the Respondent admits was an error. It is unacceptable that some employees of the Respondent would take decisions without consulting the department that is seized with recruitment and selection matters as the Applicant seeks to benefit from the chaotic nature of the Respondent’s operations.

Failure to give reasonable notice

37. It is common cause that the Respondent did not communicate with the Applicant regarding expiry of his fixed-term contract. It is not clear whether such a requirement exists in the contract.

38. Based on the above I find that the Applicant was at all times aware that he was employed on a temporary basis. He also could not be employed on the available vacancy due to post profiling of the post. There could therefore be no expectation of renewal, given that one of the requirements was for him to have a work permit for which he only applied in October 2022. I therefore find that non-renewal of the Applicants’ contract did not amount to a dismissal. The Applicant has therefore failed to discharge the onus in terms of section 192(1) of the LRA.

39. The Respondent conceded that the Applicant was made to work outside his fixed-term contract up to 15 May 2023 and as such is willing to pay the Applicant’s remuneration for that period of 4 months and 15 days in May 2022. The calculation of such would be based on the Applicant’s rate of pay of R17 644. 25 per month as follows: R17 644. 25 X 4 = R70 577.00.

40. The further calculations of the 15 days for May 2022, R17 644.25 per month / 4.33 = R4074. 88 per week / 5 days = R815.97 per day X 15 days = R12 224. 55. The total amount due to the Applicant is R82 801.55.

AWARD

41. The Applicant, Joseph Mavhere, was not dismissed by the Respondent, Department of Education: Eastern Cape.

42. The Respondent, Department of Education: Eastern Cape, must pay remuneration to the Applicant, Joseph Mavhere, for services rendered from 1 January 2022 to 15 May 2022, amounting to R82 801. 55 by no later than 30 June 2023.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL