ELRC952-22/23EC

ARBITRATION AWARD RENDERED

Case Number: ELRC952-22/23EC
Commissioner: Ncumisa Bantwini
Date of Ruling: 04 July 2023

In the ARBITRATION between:

Malefu Rosie Senoko
(Union / Applicant)
And

Department of Education-Eastern Cape (Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration came before the ELRC in terms of Section 191(5)(a)(iii) of the Labour Relations Act No.66 of 1995 (the LRA) for an alleged dismissal of the employee for unknown reason. It was heard on 26 June 2023 at the offices of the Department of Education in East London. The employee, Ms. Malefu Rosie Senoko was represented by Mr. Sesethu Hlathi, an Attorney from Aldo and Aldo Attorneys while Mr. Thandabantu Hena appeared for the employer, the Department of Education-Eastern Cape.

ISSUE TO BE DECIDED

2. I am required to decide whether the employee was dismissed or not, if she was dismissed, whether the dismissal was for a fair reason or not.

3. I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute.

BACKGROUND TO THE DISPUTE

4. The employee Ms. Sinoko referred a dispute arising from her alleged unfair dismissal for unknown reason. The dispute was conciliated and it remained unresolved and the employee requested arbitration.

SURVEY OF EVIDENCE
The Employer’s case

5. According to Mr. Hena’s opening statement, the employee was employed as a Substitute Educator at Mizamo High School in Mdantsane. A substitute educator is appointed when the incumbent of the position is on leave or is put on precautionary suspension. There was no vacant position, meaning the employee was employed for a specific fixed time period.

6. When an Educator is converted to a permanent status, a vacant position has to funded and an appointment letter is issued by the employer. The employee was never appointed on permanent basis. Her claim of dismissal cannot be entertained and she cannot be reinstated as she was never dismissed. The employer will call a witness to testify.

7. The first witness for the employer, Ms. Funeka Gysman testified as follows:
8. She works for the employer as the Deputy Director: Human Resources Administration and Provision Planning since April 2022 to date. The difference between the Substitute Educator is that a Substitute Educator is someone who is appointed for a certain period against a position of an incumbent who is temporarily on leave or precautionary suspension. The Substitute ‘s term ends when the incumbent is back.

9. The Temporal Educator is employed in a vacant and funded position and the termination of the temporal employment is effective when the position is filled after the recruitment processes are conducted. The Education Labour Relations Council Collective Agreement No 4 of 2018 regulates appointment of temporary educators to positions on the educator establishment of public schools. Temporary teachers are eligible for conversion to permanent employment after 3 months of being employed on temporal basis.

10. The witness testified further that the letter that appears on page 1 of the bundle is addressed to the School Governing Body (SGB) of Mizamo High School who under normal circumstances would sign page 2 if they agree to the conversion of the Temporal Teacher. In the event that the SGB agree to the conversion of the Temporal Teacher, they would sign the letter and the employer would issue a letter to the Temporal teacher converting his/her position to permanent status. The SGB may reject the conversion.

11. With the employee’s case, the letter that is addressed to the SGB is not signed and no appointment letter was issued to her converting her appointment to permanent status.

12. Under cross-examination, the witness testified as follows:

13. A Substitute Teacher is appointed against a position of an incumbent who is absent due to leave, precautionary suspension etc. It is common cause that the employee was appointed for a fixed term period which was longer than 3 months as a Substitute Teacher and not as a Temporal Teacher.

14. The witness was referred to clause 4.8.2.9 of the collective agreement which provides-

“Temporary educator” means an educator contemplated in paragraph 1.1 who is appointed in terms of a contract of employment that terminates on the occurrence of a specified event, the completion of a specified event, other than an employee’s normal or agreed retirement age; and…….”

15. The witness testified further that the employee was a Substitute Teacher and her contract was fixed for a specific period. The witness was further referred to clause 2.2.2 of the collective agreement under justifiable reason for employing an educator on a temporal capacity which reads:
“the educator is employed on account of a temporary increase in the volume of work, which is not expected to endure beyond 12 months” (page 11).

16. The witness stated that a temporary teacher does not substitute another employee. The employee’s letter of appointment as Substitute Teacher is not aligned with the description of a temporary educator that appears on page 13 of the bundle (clause 4.8.2.9 of the collective agreement).

17. In closing, Mr. Hena argued as follows:
18. The employee confirmed that she was never issued with an appointment letter, meaning, no employment relationship existed between her and the Department of Education-Eastern Cape. She cannot therefore claim that he was dismissed as her fixed term contract as a substitute educator expired. The employer’s representative finally submitted that the employee’s case must be dismissed.

The Employee’s case

19. According to Mr. Hlati’s opening statement the employee was appointed from 04 February 2022 to 30 September 2022 as a Temporal Educator at Mizamo High School. The contract was extended to 31 December 2022. The employee was advised by the principal that she will be converted to permanent employment and showed her a letter that is directed to the SGB (page 1).

20. The employee will show that she was employed on temporal basis and was converted to permanent status but was dismissed by the employer. She will show that her dismissal was both procedural and substantively unfair. She seeks reinstatement as a remedy.

21. The employee, Ms. Malefu Rosie Senoko testified as follows:

22. She was employed by the employer as a Substitute Educator from 04 February 2022 until 31 December 2022, earning R284 238.00 per annum. On 21 December 2022 she was verbally advised by the principal that she has been converted as a permanent Educator together with one of her colleagues.

23. After approaching the District Office for a written letter of appointment, she was told by Mr. Moni that the employer made a mistake by issuing the SGB letter. She seeks reinstatement as a remedy.

24. Under cross-examination, the employee testified as follows:

25. She was never issued with a letter confirming employment on permanent basis. She was a Substitute Educator.

26. Under re-examination the employee stated that she was advised verbally by Mr. Pokolo, the EDO, that she was placed on permanent position. There was no reason to be suspicious when they were copied the SGB letter.

27. In closing, Mr. Hlati argued as follows:
28. The employee was a temporal educator and several employees of the department of Education admitted to having made a mistake of making her a permanent employee. She could have applied for other positions in other districts. Having regard to the collective agreement, the employee was a temporal educator and a conversion letter was issued to her and she was unfairly dismissed. The employee seeks retrospective reinstatement as a remedy.

ANALYSIS OF EVIDENCE AND ARGUMENTS

29. It is the contention of the employee’s representative’s claim that the employee was dismissed under the meaning of section 191 (5) (a) (iii) of the LRA which provides-
(iii) The employee does not know the reason for the dismissal; or
(iV)……..

30. The common cause issues in this matter are as follows:
31. That the employee was appointed on a fixed term contract effectively from 04 February 2022 until 31 December 2022.

32. That the employee was appointed as a Substitute Educator as reflected in the letter that appears on page 2 of the bundle.

33. That the purpose for concluding a fixed term employment contract was to temporally fill a vacancy that was left by an employee/educator that was on sick leave.

34. The employee’s contract was extended on 2 occasions based on the fact that the incumbent was still on sick leave.

35. The purpose of the employee’s appointment was to assist the employer with duties of an Educator who was on sick leave.

36. It must be noted that although the employee’s representative claims that the employee’s appointment was converted to permanent status, no appointment letter confirming such was issued by the employer. This was conceded to by the employee under cross-examination.

37. The employee’s employment as a Substitute Educator was for a contractual period that endured until the incumbent came back.

38. It is the employee’s case that the termination of her contract was unfair and as such constitutes dismissal in terms of section 191 (5) (a) (iii) of the LRA.

39. It is the employer’s contention that the employee was never dismissed but his fixed term contract was terminated due to effluxion of time.

40. It follows that there can therefore be no unfair dismissal of the employee because the employment contract came to an end as per the wishes of the parties.

41. It is undisputed fact that the employee’s stay in the Department was for a limited period and was linked to an occurrence of a specified event which took place and necessitated termination of her employment contract on 31 December 2022.

42. It is undisputed fact that the employee’s letter of appointment as Substitute Teacher is not aligned with the provision of clause 4.8.2.9 of the Education Labour Relations Council Collective Agreement No 4 of 2018 which regulates appointment of temporary educators to positions on the educator establishment of public schools (page 13 of the bundle).

43. It is trite law that in terms of ordinary contract principles, a fixed term contract terminates automatically when the period for which it has been entered into expires.

44. In Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) the Court held that a fixed term contract terminates by operation of law at the end of its term. Such termination does not constitute a “dismissal”

45. On the basis of the above evidence, I found that the employee has failed to prove that he was dismissed as contemplated by section 191 (5) (a) (iii) of the LRA by the employer.

46. The facts put before me supports that the termination of the employee’s contract on 31 December 2022 does not constitute a dismissal, instead it was terminated due to effluxion of time.

47. I therefore make the following award:

AWARD

48. The termination of the employee’s contract, Ms Malefu Rosie Senoko by the employer, the Department of Education-Eastern Cape was both procedural and substantively fair as it expired.

49. The employee was not dismissed by the employer.

50. The employee is not entitled to any relief sought and there is no order as to costs.

51. The application is dismissed.

Ncumisa Bantwini
ELRC PANELIST