ELRC703-22/23WC

Panelist : Alta Reynolds

Case Number : ELRC703-22/23WC

Date of Award : 12 July 2023


In the ARBITRATION between:


SAOU obo ANDA SMIT
(Union/Applicant)

and

WESTERN CAPE EDUCATION DEPARTMENT
(1st Respondent)

ZELMIA WICHMANN
(2nd Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was referred for arbitration to the Education Labour Relations Council (ELRC) for a dispute relating to an alleged unfair dismissal referred in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995 as amended (the LRA) relating to an expectation to have a fixed- term contract renewed. The arbitration was conducted virtually via Zoom video conferencing over five sittings scheduled on 17 February 2023, 17 March 2023, 17 March 2023, 24 April 2023 and 12 June 2023.

2. A joinder ruling was issued on 21 February 2023 joining Ms Zelmia Wichmann, the educator appointed in the disputed fixed-term contract, who participated from the second sitting onwards in the proceedings.

3. An application for postponement was dealt with at the sitting on 24 April 2023 due to the unexpected illness of the 1st Respondent’s Representative, Ms Abigal Blankner, with postponement granted on medical grounds.
4. The Applicant, Ms Anda Smit based in Lutzille, was represented by Mr Rudolf Baard, Full-Time Shop Steward of SAOU based in Cape Town. The 1st Respondent, Western Cape Education Department (WCED) was represented by Ms Abigail Blankner, Assistant Director: Labour Relations, based in Cape Town. The 2nd Respondent, Ms Zelmia Wichmann based in Lutzville was unrepresented and relied on the 1st Respondent for representation.

5. The proceedings were conducted in English and Afrikaans with digital, Zoom and electronic recordings made and the Panelist’s electronic record serving as the full English translation.

6. An explanation of the arbitration proceedings was provided for the benefit of the parties, including the onus of proof and the basic rules of evidence.

7. A draft pre-arbitration minute had been prepared by the 1st Respondent prior to the arbitration commencing, but had not been agreed to by the Applicant party. At the request of the 1st Respondent the Panelist prepared facts common cause and in dispute after the conclusion of the first sitting on 17 February 2023, which were approved, with amendments, at the second sitting on 17 March 2023.

8. Written closing arguments were requested by the parties at the conclusion of the arbitration and agreed to, to be submitted simultaneously via e-mail to the ELRC and copied to one another and the Panelist on 20 June 2023, which were both received by due date, with the award due date amended accordingly.

ISSUE TO BE DECIDED

9. The purpose of this arbitration is to determine whether the Applicant, Ms Anda Smit, had a reasonable expectation that her fixed-term contract with the 1st Respondent, the Western Cape Education Department (the WCED) would be renewed in 2023 on the same or similar terms and whether an unfair dismissal had applied when the Respondent failed to renew the contract. The onus of proof was on the Applicant in this matter, with the relief sought of reinstatement with retrospective compensation. For ease of reference the 1st Respondent will be referred to hereinafter as the WCED.


BACKGROUND TO THE DISPUTE

The following facts were established as common cause:

10. The Applicant was employed in a post level 1 educator position on numerous fixed term contracts at Lutzville High School in the Vredendal area teaching Economic Management Sciences (EMS) for grades 7 to 9 and Consumer Studies for grades 10 to 12, with Persal number 54293120. These were all WCED contracts which commenced on 1 January 2018. Prior to January 2018 she was employed on a School Governing Body (SGB) contract. Her last WCED contract terminated 31 December 2022 and was not renewed for 2023 because she had not taught Mathematics and/or Computer Application Technology (CAT). The non-renewal of the Applicant’s contract was not based on performance or misconduct related issues. The 2nd Respondent, Ms Zelmia Wichmann, was appointed into the WCED contract post that the Applicant had previously occupied with effect from 1 January 2023.

11. The Applicant was offered a SGB contract teaching the same subjects at the same school with effect from 1 January 2023. The Applicant’s basic salary in December 2022 was R25 259.25 per month, with a cash allowance of R1 352.00 and 37% service benefits of R9 345.92, totalling gross earnings of R35 957.17 per month. In her current SGB post she earns a basic salary of R24 471.17 per month, without any other benefits. The School submitted the Applicant’s documents for conversion to permanent status on 29 September 2022 to the Circuit Manager for further processing. The School was informed that the conversion application was unsuccessful, of which the Applicant was notified on 3 October 2022, subsequent to which a grievance was lodged and a dispute relating to the interpretation and/or application of a collective agreement relating to the Applicant’s conversion to permanent status was referred to the ELRC on 14 October 2022. This dispute under case reference ELRC558-22/23WC was declared unresolved at conciliation on 10 November 2022 and set down for arbitration on 9 December 2022, to continue on 13, 14 and 15 March 2023 and is still ongoing.

The following facts were established as being in dispute:

12. Whether the Applicant’s contract periods differ from her Persal service record.

13. Whether the post requirements for the contract position that the Applicant previously occupied had changed for 2023, resulting in another educator being appointed in the contract post.

14. Whether the contract post that the Applicant occupied in 2022 became vacant in March 2022.

15. When the Applicant’s present contract with the SGB with effect from 1 January 2023 is to terminate.

16. Whether a reasonable expectation was created that the Applicant’s fixed term contract would be renewed by the Respondent in 2023.

17. Whether a school may implement a practice whereby they nominate educators for contract positions on an interim basis with no expectation of renewal so that the nominees who are appointed receive the financial benefits of such an appointment.

18. Whether the Applicant was appointed at post level 1 teaching Consumer Studies and EMS against a vacant HOD post for Mathematics and/or CAT prior to 1 March 2022.

19. Whether the last contract that the Applicant was appointed on was for a Mathematics and/or CAT position and it therefore entitled her for renewal in 2023 which required Mathematics and/or CAT.

20. Whether the school’s actions led to the Applicant being denied an opportunity to re-apply for the post for 2023.

21. Whether a dismissal had applied in the circumstances and whether such dismissal was fair.

SURVEY OF EVIDENCE AND ARGUMENT

22. The Applicant, Ms Anda Smit, testified under oath for herself. Ms Marlida Lombard, Principal of Lutzville High School and Mr Harry Arthur, Acting Assistant Director: Recruitment and Selection, testified under oath for the WCED. The 2nd Respondent, Ms Zelmia Wichmann, elected not to testify in the proceedings.

23. Documents were presented and exchanged by both parties and admitted as evidence, except for the documents in the Applicant’s bundle relating to the conversion process which is the subject of the dispute referred under case number ELRC558-22/23WC, with the Applicant to lead evidence on the expectation that was created by the conversion.

24. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, where relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

25. The Applicant party’s case was that they would show that the Applicant was employed by the WCED on several contracts continuously since 1 January 2018 teaching Consumer Studies for grades 10 to 12 and Economic Management Studies (EMS) for grades 7 to 9 as a post level 1 educator at Lutzville High School. The contract appointments were all subject to nominations from the School Governing Body (SGB). The contract periods varied and the long contract appointments created the reasonable expectation that her contract will also be renewed from January 2023. Her last contract with the WCED expired in December 2022. The School Principal on behalf of the SGB indicated that they still required her services for 2023 and as a back up plan she signed a contract with the SGB for 2023 in November 2022. Prior to her contracts with the WCED she was employed on SGB contracts. The contract position that the Applicant occupied became a substantive vacant post on 1 March 2022. The Applicant qualified to be converted to a permanent position since she had been employed in the post for longer than three months and it was now a substantive vacant post on establishment. This bolstered her expectation to be re-employed again by the WCED and to even become permanently employed. The Applicant lodged a second dispute at the end of 2022 when the Respondent did not convert her to permanent (the dispute under ELRC558-22/23WC). They would show that the school arbitrarily decided to rather give the contract post and possible permanent appointment to another educator who was previously employed by the SGB at the beginning of 2023. The post was advertised but the Applicant could not apply since they had changed the subjects with the reason being for operational requirements. They would show that the operational requirements cited by the WCED did not exist or changed at the time that the Applicant qualified for conversion in March 2022 and only raised this later in the year when they refused to submit the Applicant’s conversion documents in September 2022. Throughout these actions the WCED denied the Applicant the fair opportunity to convert and justified the termination of her contract on 31 December 2022, of which she was notified of on 15 November 2022. The relief sought was either reinstatement with effect from 1 January 2023, re-employment with compensation for the period of unemployment, and if this is not possible, compensation from when the contract terminated until the arbitration is concluded.

26. Ms Anda Smit, the Applicant, testified as follows under oath in her evidence in chief: She currently presents Consumer Studies for grades 10 to 12 and EMS for grades 7, 8 and 9 at Lutzville High School and has been employed in a SGB contract position with the school since 1 January 2023. She commenced with the school in 2017 and in the beginning taught Business Studies which changed over to EMS. In 2017 she was appointed in a SGB contract post and was informed at the end 2017 that she would be appointed in a WCED contract post with effect from January 2018, and has been on WCED contract posts since then. She never received any form of contract or appointment letter from the WCED. She has been employed in contract posts with the WCED from January 2018 to December 2022 for the whole of five years. The contract periods varied from six months, three months and in 2022 it was for nine or ten months. Her understanding why the school kept her on contract for five years was with the view that the post will later become permanent. She got that impression because the day she was told by the Principal in 2017 that she was going over onto a contract with the WCED in 2018 she was also told by the Principal that it would hopefully soon change over into a permanent post. As to whether there were any discussions when the contracts were renewed, every time when a contract term expired the Principal told her that she remained first choice for re-appointment in the contract.

27. She explained the sequence of events during 2022 until the termination of her contract with the WCED on 31 December 2022. A new Head of Department was appointed permanently at the beginning of 2022. The post of Deputy Principal was filled two years prior to that by a HOD Mr Koos Scheepers. His vacant HOD post was advertised and filled on 1 March 2022 by Ms Adrie du Toit. The school Principal had alleged that she was appointed against somebody else’s vacant post which became vacant in April 2022, which contradicted the discussion she had with the Principal at the end of 2021 when they discussed the post for 2022 and she was told that she will be on contract from January to December 2022. This contract was given to her for the whole year then changed as a result of the change due to the appointment of the HOD on 1 March 2022 from 1 January 2022 to 31 March 2022 and then from 1 April 2022 to 31 December 2022. She became aware that her WCED contract would not go beyond December 2022 when Ms du Toit was appointed as HOD and she was told she will only be on contract till the end of the year. She was also informed that the WCED will not appoint her on contract in 2023 and that they will appoint a new educator with other subjects of Mathematics and CAT in the contract post that she had held. After they told her they were going to appoint somebody else her Union the SAOU visited the school and a grievance process was started. A meeting was also held with the Circuit Manager and the school was asked to look at the possibility of converting her contract position into a permanent position since she was aware that that if she had occupied a temporary post for three months that the school can apply for its conversion into a permanent position. Since she had been in the contract post since 2018 she felt it was more than a reasonable time to ask the school to convert her post, especially when the Principal had mentioned that hopefully the post will be permanent. The WCED was requested to convert the post. The grievance only had to do with the conversion since the school did not want to apply for her conversion. At the grievance meeting with the Circuit Manager the Principal was told that the school must apply for the conversion. A dispute was referred when the conversion was not granted by the WCED. The part of the Applicant’s testimony that followed related to the conversion application is not replicated here, except the reference to a letter signed by the Assistant Director: Recruitment and Selection on 30 September 2022 relating to the Applicant’s application for conversion to Further Education and Training (FET) Phase with effect from 1 November 2022 in which it was stated that she was professionally qualified to teach only Consumer Studies in the FET phase and that her conversion/appointment is not approved since she is not suitably qualified to teach Computer Applications Technology (CAT) in the FET phase. An e-mail was received from the Principal on 15 November 2022 in which a decision of the SGB was conveyed in which it was confirmed that the WCED contracts for her and another educator Ms Lou-Anne Evert will terminate on 31 December 2022 and that she will be re-appointed in her original SGB post with effect from 1 January 2023, still presenting the same subjects as she had done in the WCED post. She was specifically told the subjects have not fallen away but will no longer be in a WCED post.

28. She was referred to the advertisements placed by the school for one temporary SGB post for the period 15 August 2022 to 30 November 2022 , two WCED contract posts from 1 January 2023 with one for FET Phase CAT and/or English and another for Senior Phase Mathematics, as well as one permanent SGB post in Senior Phase English and Afrikaans, also from 1 January 2023. Both the WCED contract posts indicated the possibility of permanency in the advertisement. The advertisement was placed in the newspapers during mid May 2022. She could not recall when this advertisement was placed but it would have been before January 2023. She was referred to the SGB minutes of 14 November 2022 in which it was confirmed that the WCED contract post for Mathematics was filled by Mr Handre van Zyl and the WCED contract post for CAT was filled by Ms Zelmia Wichmann. According to her Ms Wichmann started in January 2022 in a SGB post and was only at the school for one year. The impact of the advertised posts for her was that the WCED post in Consumer Studies would be terminated and she would have to go back to a SGB post. According to her it would be very unfair for a person working on and off for five years to continue and teach the same subjects and then take the contract away and be placed back with the SGB to still teach the same subjects, when it was told the WCED contract would become permanent. She had played open cards with the school, who knew that she stayed on a farm 35 km away and her husband is a farmer, with her children at school, and that she could not move easily to another school and would want to work for the school for the next 18 to 20 years. As to whether the Principal had decided to appoint her on a WCED contract position to give her a better financial boost because of benefits, the Principal did not convey that to her in so many words but she was told that everybody placed in WCED contract posts are placed there for financial benefits. She had communicated a few times to the Principal that she needed to have her post converted since she was married to a farmer and needed the pension and other benefits since her husband had none of these. She was referred to her Persal service record and confirmed it was her service record. She had not seen the correspondence before dated 16 December 2021 relating to extension of her contract from 1 January 2022 to 31 March 2022 and had also not signed for it. She had not seen the nomination document either which was signed by the School Secretary. She had not completed the associated application form for a WCED educator post. The School Secretary asked her to sign the blank form and told her she would fill in the rest. This was the case every time there was a contract renewal, namely that she signs the form, the Secretary fills it in and sends it to the WCED. Further correspondence in the documents was referred to, of which the detail is not repeated here for the sake of brevity. When she accepted the SGB post for 2023 she made it clear that she needed the job as a breadwinner to earn an income and that she was in the process of an arbitration regarding the non-conversion of her post, and not that she was accepting the termination of her WCED contract.

29. She was referred to ELRC Collective Agreement No 4 of 2018 The Appointment and Conversion of Temporary Educators to Posts on the Educator Establishment (the Collective Agreement), of which the detail is also not repeated here since it related to the conversion dispute. As to whether she was made aware that the need of the school was for a CAT educator and they would rather have a CAT educator employed on contract by the WCED, it was exactly the same educator this year that gave the subject last year, but they just decided to make the CAT post WCED and made her, the Applicant, SGB. The school never told her they are going to a appoint a WCED CAT educator rather than Consumer Science educator, whereas the need for Consumer Science has not changed. She was also referred to paragraph 3 of the Collective Agreement relating to relevant factors to determine a reasonable expectation, which factors she believed applied to her and that in particular the post became available on the educator establishment on 2017. She believed she was handled unfairly and an unfair dismissal had applied since promises were made, contracts were renewed and she performed the same work over and over again. She had done absolutely nothing wrong and did her work correctly, the conversion application was not done correctly, she had performed the work for five years and then her WCED contract was terminated and the benefit was rather given to a person with only one year’s service.

30. Ms Smit testified as follows under cross-examination: She was appointed by the SGB for a year in 2017 and was approached by the Principal end 2017 to move to a WCED contract. The Principal did not explain to her why there was a WCED contract post available in 2018. In that discussion the Principal indicated that there would be a possibility that the post would become permanent. She could not remember the exact words the Principal used, since it was six years ago, but they were to the effect that she will be appointed in a contract post in January in the hope that it will possibly become permanent as advertised. As to the Principal’s version that she never made such a statement since she could not make any promises relating to permanency due to the promotional vacancy at the school she responded that she would not lie under oath and and she was not the only staff member at the school that was said to. She would also not have contacted her parents afterwards to tell them about the post possibly becoming permanent, but unfortunately it was only her and the Principal in the discussion. If the Principal said she never made any promises since then, the Principal’s exact words every time were that she still remained the first option for appointment in the contract post. Her understanding of why her contract was not renewed in 2022 as explained to her was that the school now needed a CAT teacher in the contract post and that they would rather appoint Ms Wichmann who has CAT. She only became aware when they terminated her contract that they are going to put a CAT person in the contract post. She was never part of the SGB and as post level 1 educator she was never part of the SMT. She was aware the SGB represented by the Principal is in line with the Schools Act to ensure that the curriculum needs of the school are met. As to whether she was aware that the needs of the school were discussed or identified two years ago prior to November 2022 she responded that the school’s subject choices changed and changed back again with different options and that they already had the roster for 2023 informing that the needs of the school are different and that her post changed to CAT. She was aware that the subjects changed and changed back again and that Consumer Studies was no longer in the same group. She did not sit in on SMT meetings but it was never said to her CAT will expand so much that it will replace her post. She was unaware of a meeting when that was discussed. Nobody said that CAT will be so big and important and that it will overtake other posts. It was only her and the Principal present when the Principal said to her in the beginning that she will go over into a WCED post from the SGB post and that it will hopefully be permanent.

31. Ms Smit testified as follows under re-examination: When she was informed in November 2022 about the termination of her contract she became aware that CAT was the subject that was considered so important that the school had to put somebody in the contract post to teach CAT. It is only when she asked for her contract post to be converted that it was the first time she heard that the contract post will go to CAT, which was communicated to her verbally and she requested a written response, but that was only at the end of 2022. Although it was only her and the Principal in that discussion in the beginning, she was confident about her version of events and did not harbour any bad feelings towards the Principal. She did not blame Ms Wichmann either. She did not want to it all to get to this point since she was one person and the Principal had the whole SGB and WCED behind her.

THE RESPONDENTS’ EVIDENCE

32. The WCED as the 1st Respondent’s case that it would deal with the unfair dismissal dispute and not the conversion dispute. Their case was that the the School Principal would testify that no reasonable expectation was created even though the Applicant was in employment with the WCED from 1 January 2018. Not all the contracts were in substantive posts. The school was allocated its first Deputy Principal post in 2019 and resulted in Heads of Departments (HODs) acting in the vacant Deputy Principal post, with posts carried against the vacant acting posts. These posts were not substantive vacant posts since they were carried against a promotion post. The Applicant’s specific contract periods between 2020 and March 2022 were carried against a HOD post and it was only when that HOD was promoted internally on 1 March 2022 that a substantive vacancy arose, but not for Consumer Studies. When there are WCED contracts available and there are SGB appointed educators at the school, they will get offered the WCED posts to enjoy the benefits of a higher salary, but this is always an interim measure. The curriculum needs of the school always included Consumer Studies but when the internal promotion took place in March 2022 the vacant contract post was earmarked for Mathematics and Computer Application Technology (CAT). Although the conversion dispute was not viewed as part of this process, they pointed out that even though the Applicant partially met the requirements to be converted the main requirement could not be met because she was not qualified to teach Mathematics and CAT, which is why the conversion was not approved. The Applicant was aware of the needs of the school, hence she could not claim an expectation for renewal. The Applicant had been employed in a SGB post since January 2023 after signing a contract with the SGB on 24 November 2022. Since the Applicant is currently earning remuneration from the SGB any relief or compensation granted should be the difference in the remuneration she would have received in the contract post with the WCED and the remuneration she is receiving in the SGB contract post.

33. Ms Marlida Lombard testified as follows under oath in her evidence in chief: She has been the Principal of Lutzville High School since 2008. She explained that it was a rural school situated about 350 kms north of Cape Town on the N7 with about 450 learners from grades 1 to 12, serving the children of farm owners and farm workers. She was referred to the SGB meeting minute of 14 March 2022 and 14 November 2022 and the Applicant’s contract extensions in the WCED’s bundle of documents and confirmed the contents. She explained why the Applicant’s contract was not renewed after December 2022. The first SGB meeting of 14 March 2022 confirmed that CAT was a very important subject and is the school’s biggest need, which they wanted to already include in the subject choices since the previous year. At the meeting of 14 November 2022 the SGB decided because of the need for CAT they will appoint a CAT person in the WCED post that the Applicant occupied when her contract expired, since they would not get an application for a CAT SGB post on the long term. For this reason they decided not to renew the WCED contracts of the Applicant and another educator, Ms Lou-Anne Evert, which both expired on 31 December 2022, and offered them both their original SGB posts with effect from 1 January 2023. The SGB in the meeting of 14 November 2022 also decided to appoint Mr Handre van Zyl in the Intermediary Phase Mathematics post and Ms Zelmia Wichmann in the Further Education and Training (FET) Phase CAT post. A meeting was held with parents on 10 November 2021 when the subject choices were presented. The day after the SGB meeting on 14 November 2022 the Applicant was sent an e-mail on 15 November 2022 informing her that her contract will not be renewed from 1 January 2023.

34. The staff establishment since 2010 was explained, of which all the detail is not repeated here, except to summarise the following: It was when a substantive post of Deputy Principal was allocated to the school that the post level 1 contract post became available and the Applicant was given the opportunity to be appointed in a WCED contract post from 2018 while the Deputy Principal post was vacant. Until the Deputy Principal, Mr Koos Scheepers, was appointed in 2021, the two HOD’s acted in the post on a rotational basis. Mr Scheepers was an internal appointment and one of the HODs. When Mr Scheeper’s HOD post became vacant in 2021 they were able to allocate the Applicant’s contract post against that vacancy on the WCED establishment. In March 2022 Ms Adrie du Toit a post level 1 educator at the same school who taught Mathematics and Physical Science was appointed in the vacant HOD post, which left a post level 1 vacancy. Whenever there was a substantive post level 1 vacancy they could nominate a SGB educator into that post, which was the Applicant at the time. The Applicant was nominated in various posts from 2018 until the filling of the last HOD post in March 2022. She explained how the Applicant’s contracts were automatically renewed and extended. The Applicant’s post was linked to the substantive vacancy of HOD and when this post was filled by Ms du Toit on 1 March 2022, they could not end the Applicant’s contract then but requested that it be termporarily extended to 31 December 2022. She confirmed again that the Applicant’s last contract was against a substantive vacant post of HOD and prior to that was carried against vacant promotional posts.

35. As to the Applicant’s contention that promises were made to her with respect to possible permanency in their one-on-one conversation regarding the contract entered to in 2018, she could not make such a promise to the Applicant since she did not know who will be appointed as deputy principal and she as Principal is not in control of the whole recruitment and selection process. They made the decision at the SGB meeting of 14 November 2022 that the Applicant’s and Ms Evert’s contracts were to terminate end December 2022 and that they would go back to their SGB posts, with the salaries indicated. The Applicant was then informed on 15 November 2022 via e-mail of this decision of the SGB. As to whether the Applicant would have an expectation that her contract would be renewed in 2023, she could not say whether the Applicant had an expectation. The morning after the SGB meeting of 14 March 2022 staff were made aware of what was decided at the SGB meeting and the Applicant expressed her unhappiness to her about the decision taken at that meeting, of which the particular communication from the Applicant was not contained in the parties’ bundles of documents. With respect to the Applicant’s expectation that she had always taught Consumer Studies and Consumer Studies was still being taught at the school, she responded that the Applicant applied for the Consumer Studies post which was advertised as a SGB post and gave her the benefit of the WCED post otherwise it would have been lost on the staff establishment. Consumer Studies is a SGB post. She believed it was the best decision for the curriculum needs of the school not to renew the Applicant’s WCED contract for 2023, which was unanimously decided on by the SGB.

36. Ms Lombard testified as follows under cross-examination: She confirmed that the SGB took decisions in the best interest of the school’s curriculum and the need for a CAT post. They never had anything against the Applicant and if they had they would not have given her the opportunity and nominated her each year for the last five years for the contract post. There was a CAT teacher employed in 2021 who resigned to go overseas and they had a problem to fill the post from 2022. The post was advertised as a SGB post and Ms Wichmann applied and was appointed in the post. She was aware of section 6 of the Employment of Educators Act which allowed for recent graduates to be appointed permanently but did not want to commit Ms Wichmann to a permanent post or a probationary period in case it did not work out and they wanted to play it safe. She explained the purpose of the meeting with parents on 10 November 2021 when subject choices were discussed, such as CAT and it was agreed that two streams of CAT would be presented from 2022. The form did not make provision for the extension of the Applicant’s 2022 contract from March 2022. The Applicant was nominated for her contract to be extended from 1 January 2022 to 31 March 2022, which extension was confirmed on 16 December 2021. The SGB would have known that the HOD post was to be filled by Ms du Toit on 1 March 2022 prior to that date, probably in February 2022. She confirmed aspects of her testimony, which are not repeated here. They had already confirmed with the Applicant that her contract would expire 31 December 2022, hence they could not terminate the contract before then and kept the Applicant on until 31 December 2022. She was aware that there is a possibility that if an educator occupies a post for three months that it can become permanent. They had advertised the WCED contract post with subjects CAT and/or English since these are scarce subjects and some English teachers had indicated they were retiring or on maternity leave and they knew that English will be a problem in the future. The Applicant had submitted a grievance in June 2022 because she was not converted yet (noting that this is the subject of a different dispute). The outcome of the grievance was that her post could not be converted because it was not attached to CAT and which was confirmed by the SGB and the Circuit Manager. The Applicant signed her conversion application on 21 June 2022, which the school indicated clearly they did not support and the WCED advised on 30 September 2022 that the conversion was refused.

37. At the SGB meeting of 14 November 2022 it was decided not to keep the Applicant in the WCED post and to allocate it to Ms Wichmann and to place her back into the SGB post, which was confirmed with the Applicant on 15 November 2022. Consumer Studies and EMS were not the school’s need, which is why it was advertised as a SGB post in 2017. There are SGB and WCED appointments at schools, based on the needs. They constantly looked at numbers for subjects and the numbers increased for CAT and reduced for Consumer Studies, with the CAT numbers doubling in 2022, which is why at the SGB it was said that they must look at another CAT person for 2023. CAT was already a need before the SGB meeting in March 2022, as well as English. They had broken the contract for 2022 up in three and nine months since the advertisement was for 13 and 15 May 2022 and they did not want to move people around and then change again. The Applicant could see the posts advertised and that there was nothing for Consumer Studies. The Applicant already knew in March 2022 that her contract will not be renewed. A reasonable expectation was not created by the school’s actions that the Applicant’s post would be converted to permanent, with the Applicant expressing her unhappiness about that. The witness was questioned surrounding the conversion process, which was ruled as not part of the non-renewal dispute, with its relevance only to the creation of a reasonable expectation that her contract would be renewed in 2023, with the detail not repeated here. As to why the CAT post was made a WCED post when the incumbent Ms Wichmann was already in a SGB post, she responded by explaining that in a rural area they do not always get the applications that they need for scarce subjects and must try and retain educators with WCED posts, otherwise they will move to other schools to get WCED posts, especially considering the few applications they got for the posts advertised in May 2022. She would not say that Consumer Studies was a scarce subject, with all the subjects in grades 10 to 12 being specialist subjects. It was difficult to get applications for CAT, Mathematics and languages. Staff were informed in staff meetings that they would want to give WCED posts to all staff but they are limited by the school’s staff complement.

38. The Applicant had explained to her about her circumstances and she had told the Applicant she would not stand in her way and that there were three schools closer to their farm which she could approach for WCED posts and benefits. Further evidence was elicited surrounding the Applicant’s conversion application. The school had submitted conversion applications for other educators. The school had not deliberately delayed the Applicant’s conversion application. What had changed at the school is that CAT is presented this year in two grades with the subjects in two streams. If Ms Wichmann had stayed on in the SGB post she could have applied to another school for a CAT post, which would have affected 29 learners and seriously harmed the school. Appointments are curriculum-based and in 2023 they will also need another CAT educator. If they had kept the Applicant in the WCED post and Ms Wichmann in the SGB post they would still have been able to continue but they must ensure that the educator that meets the greatest need is given the WCED appointment. The school will not be able to have another WCED post in CAT and the second CAT appointment will have to be in a SGB post. The previous conversions were based on needs and they never said to the Applicant she had no right to apply for conversion and in terms of the Circular she had applied and the school had assisted her with this. The mistakes made were not deliberate since they were not informed that the procedure had changed and were not aware that certain documents were short. When they submitted the nomination for the Applicant’s contract post until 31 December 2022 in November 2021 they did not know at the time that the CAT teacher was resigning and they urgently had to get someone to present CAT and believed it would have been a breach of contract to end her contract then. They had not treated the Applicant unfairly and went purely on the curriculum needs of the school.

39. Ms Lombard testified as follows under re-examination: She confirmed that appointments are always based on curriculum requirements. In the rural areas the scarce specialist subjects in grades 10 to 12 are languages, specifically Afrikaans and English, Mathematics, Physical Science and CAT where they struggle to get applications. The Applicant is currently teaching Consumer Studies in grades 10 to 12. Although all subjects are important and there is a need, some subjects carry more weight than others and as an example it is easier to get a person to teach a subject like Life Orientation rather than the core subjects. CAT is a greater priority in their school. The Consumer Studies post was not coupled to a subject when the HOD was appointed. They had no intention to disadvantage the Applicant due to the unexpected resignation of the CAT teacher by breaking the contract which was to expire in December 2022. They only had a Zoom interview with Ms Wichmann and only knew she was qualified and had no choice but to place her in a SGB post as there was nobody else to guide her. It was correct that they could have appointed her on probation but they did not want to take the risk and placed her first with the SGB since they knew that they later had to also appoint another CAT person. They did not blatantly try and keep the Applicant out of the WCED post otherwise they would not have requested every time that she be appointed and gave her preference and the biggest advantage, as they could have also given preference to other persons.

40. Mr Harry Arthur testified as follows under oath in his evidence in chief: He was appointed as Acting Assistant Director: Establishment Section in the Directorate Recruitment and Selection. His section’s core work is to look at school institutions to see if they are within their staff establishment. In performing this function they are guided by the Post Establishment Approved letter from the Directorate Post Provisioning, which is issued between August and September of a year. He was referred to the documents in the WCED’s bundle and the structure or post allocation grid for Lutzville High School commencing on 5 March 2018 and indicating various educators and the nature of their appointments as well as vacant posts. He also explained the letter issued to Lutzville High School confirming the approved staff establishment for 2018, which indicated a learner enrolment of 449 for 2017 and establishment of 1 Principal, 1 Deputy Principal as an additional post, 2 Departmental Heads and 9 Post Level 1 Educators, totalling an establishment of 13 for 2018. He noted that the Deputy Principal post was recorded as vacant at 5 March 2018. According to the establishment rule a person can be appointed against a vacancy and the Applicant was appointed against the vacant Deputy Principal post, to accommodate the additional educator post occupied by the Applicant. He explained further the vacancy is a Deputy Principal post which is a promotional post. The Applicant was appointed against the promotional post and not in a substantive vacant post on 5 March 2018. The same scenario was explained for the post allocation as at 20 August 2018 in which the Applicant was again appointed against the vacant promotional post of Deputry Principal and not in a substantive vacant post. He was referred to and also explained the approved staff establishments for Lutzville High School for 2019, 2020, 2021 and 2022 and the corresponding structures and post allocations, with the detail not repeated here, except to point out that the Applicant in 2019 was still appointed against the vacant Deputy Principal promotional post and not in a substantive vacant post; that in 2020 she was appointed aganst the vacant Department Head post as the only contract educator and was not in a substantive vacant post; with the same applying in 2021; and that for the period 1 January to 31 March 2022 there were two vacant posts that of a Departmental Head and an educator, with the Applicant appointed against the vacant Departmental Head post and another educator appointed against the vacant educator post, with the Applicant still not appointed in a substantive vacant post. However from 1 April 2022 to 31 December 2022 the Departmental Head post was no longer vacant, with two vacant educator posts meaning that the Applicant was appointed against one of the vacant educator posts. This was the first time that the Applicant was appointed in a substantive vacant post, being for the period 1 April 2022 to 31 December 2022. As to which section looks at the renewal of contracts, his section will look at how many posts are allocated to a school and if there is any vacant post on the staff establishment they can proceed with a contract appointment against those vacancies. The needs of the school are established by the Principal and his section is only responsible for administering the establishment of the school.

41. Mr Arthur testified as follows under cross-examination: A substantive post is a post approved on the staff establishment and if it is vacant it must be indicated as a vacant substantive (approved) post. It is not an additional post. Such a vacant post can be filled permanently. As to whether he agreed that there were three ways in which a school can fill a substantive vacant post, he responded that it was outside his scope as he only deals with establishment matters. The PAM document was also outside his scope. It was correct that a school can nominate a person if they had to quickly fill a vacant post, but his section only looked at the establishment and not the operational needs of a school. They would receive the nomination from the school and if the nomination is within the staff establishment and there is a post then a contract appointment can be made against the post, but they don’t go into the detail of the post as that is the responsibility of the Principal. As to how the Principal is guided to make a nomination in the correct way, the relevant document is the PMPS from where the documents are uploaded by the Principal in the recruitment and selection section. He agreed that the Respondent expected a school to nominate the best candidate. He agreed that if there is a vacant substantive post level 1 educator post and they nominate a person who has been in a contract post longer than three months that they consider the effect it will have on the stability of the school. They would also consider the effect it will have on the employment security of the temporary educator if it falls within the need of the school. As to whether the the WCED will not want a Principal to renew a person’s contract if it intends to make the post permanent, it will be depend on the need of the school. The prerogative lies with the Principal to make a person permanent, they only dealt with the process of nomination and establishment, with many of the other questions outside his scope. Although it was outside his scope, it was common sense that a school will make an appointment as soon as possible if operational needs dictated, such as to fill a CAT vacancy. As to whether if the school identified their operational needs for a specifc subject, placed an advertisement in May 2022 and only made an appointment in January 2023, that did not sound like filling a post as soon as possible. A school is supposed to fill a post quicker than waiting eight months and he would agree that it would not be addressing the needs of the school and in the interest of learners if referring to a post level 1 position.

42. If a contract is approved it goes to service benefits for the educator’s salary to be arranged and service benefits makes the appointment. It is the Circuit Manager’s responsibility to ensure that false information is not submitted by a Principal on a nomination form for a school contract post and that what is provided is factually correct. Recruitment determines if the appointment is in line with requirements such as qualifications. The Applicant was appointed numerous times by the Respondent in contract positions so they assume the Respondent looked at her qualifications numerous times. It was correct that the Respondent could be held vicariously liable for the actions of a School Principal if the information provided is not verified as correct. The final decision to appoint is made by the WCED, not the Principal. His Directorate did not check to see that if a Principal nominates a person to teach Mathematics that the person is actually teaching Mathematics and not teaching another subject, which is outside their scope and would fall under another Directorate or that Principal’s Manager. His responsibility is to see the nomination that the school submitted is within the establishment and the rest is outside his core responsibility. His Directorate is the first to receive nomination documents at Head Office, it then goes to service benefits for appointment and after appointment the documents go to the personal file. He was questioned on the contents and accuracy of the Applicant’s nomination form dated 16 December 2021 for the period 1 January 2022 to 31 March 2022 and responded that his section does not check the accuracy of the form but whether there is a vacancy on the establishment. He was also referred to the Applicant’s other nomination forms and her contract extensions and the comparisons/discrepancies, of which the considerable detail is not repeated here. It was the Principal’s prerogative to complete the nomination form.

43. The post structure and allocation documents for a school are received every Monday morning from the Department of the Premier, which is the documentation that guides them. As to whether he could present evidence that it came from the the Premier’s office and that it is correct, the Applicant’s Representative could attend on the Monday morning when they received the information. It was only the Representative’s opinion that the documents could not be verified or validated since they only contained data, with no official headings or signatures. He could not comment on the validity of the document dated 18 November 2022 addressed to the Principal of Lutzville High School which was not on a WCED letterhead and was signed by the Principal and had the school stamp on, but assumed it came from the school itself and not the WCED. He was referred to Collective Agreement No 4 of 2018 and confirmed that apart from conversion it also dealt with the appointment of educators. He agreed with paragraph 2 on the justifiable reasons for the appointment of temporary educators and that the Applicant was not a first-time applicant but a qualified educator and that preference should be given to the persons identified in paragraph 1. He agreed that the Applicant could be appointed as an educator in a termporary capacity. It was outside his scope to confirm if she was qualified to teach the subjects. He was also referred to paragraph 3 relating to the relevant factors to determine a reasonable expectation and could not comment as being outside his scope whether the school had determined that when they renewed the Applicant’s contract in a vacant substantive post that they showed their intention to make her permanent and that the school considered the Applicant as the best candidate by only considering her when renewing the contract from 2018. He agreed that the school had consistently renewed the Applicant’s contract from 2018 until the post became vacant and continued afterwards. He also agreed that the dispute relating to the Applicant’s conversion was still pending at the time that her contract terminated end December 2022. He also agreed there was a vacant substantive post at the school for nine months. He confirmed the contents of paragraph 4.2 eligibility for conversion and the four conditions in the Collective Agreement.

44. Mr Arthur testified as follows under re-examination: He responded to whether there was a verification process to confirm the accuracy of the contents of the post allocation grid, that the totals on the staff establishment letters agreed with the totals on the post allocation grids. The nomination forms are not viewed in isolation but are accompanied by other documentation such as the recommendation from the school’s Circuit Manager.

45. Ms Zelmia Wichmann, the 2nd Respondent was not called to testify.

CLOSING ARGUMENT

46. As already indicated, written closing arguments were requested and presented by the parties. They are not repeated here for the sake of brevity, but have been taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

47. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the Applicant, Ms Anda Smit, had a reasonable expectation that her fixed-term contract with the WCED would be renewed in 2023 and further whether an unfair dismissal had applied when the respondent had failed to do so.

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

49. The relevant section of the LRA reads as follows at section 186(1)(b):

(1) ‘Dismissal’ means that –
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer –
(i) 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
(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 favourable terms, or did not offer to retain the employee;

50. ELRC Collective Agreement 4 of 2018 The Appointment and Conversion of Temporary Educators to Posts on the Educator Establishment dated 25 September 2018 (the Collective Agreement), was referred to by the parties and is applicable in this matter, with the following paragraphs of relevance:

1. PURPOSE OF THE AGREEMENT
The purpose of the agreement is to:
1.1 regulate the appointment of temporary educators to posts on the educator establishment of public schools;
1.2 provide for the employment security of temporary educators; and
1.3 regulate the conversion of temporary educators to permanent educators.

51. It is noted that the Applicant had referred a separate dispute in terms of section 24 of the LRA relating to the interpretation or application of a collective agreement, being the above-mentioned Collective Agreement, due to the WCED’s refusal to convert her during 2022 from a temporary to a permanent educator in terms of the provisions of the Collective Agreement, which case is still being decided under case reference number ELRC558-22/23WC by another ELRC Panelist. Since the two cases are closely interlinked, it became problematic during the parties’ evidence to separate the conversion dispute from the non-renewal of contract dispute and to confine the testimony to the non-renewal dispute, being however mindful that the prospect of conversion may be one of the factors which could create a reasonable expectation of permanency or being employed on an indefinite basis in terms of section 186(b)(ii) of the LRA.

52. In Paragraph 3 of the Collective Agreement the parties to the Council also at 3.2 noted the above-cited provisions of section 186(b) of the LRA and at 3.3 the relevant provisions of Chapter 3 of the Employment of Educators Act, in particular that any appointment, promotion or transfer to the post establishment of a public school must be made on the recommendation of the governing body of that school, which principle is subject to the provisions of Chapter 3 of the Employment of Educators Act, the LRA and any collective agreement.

53. Annexure A of the Collective Agreement at paragraph 2 provides the justifiable reasons for the appointment of temporary educators and paragraph 3 lists the relevant factors to be taken into account in determining a reasonable expectation in any dispute whether an educator had an objectively reasonable expectation as contemplated in section 186(1)(b) of the LRA:
3.1 the purpose and reason for the temporary contract;
3.2 the provisions of the employment contract and any other agreements;
3.3 the conduct of the employer, including whether the employer has acted consistently, the nature of any undertakings by the employer and whether the undertakings were given by a person with the requisite authority;
3.4 the law, practice or custom relating to the renewal of the temporary contracts or the conversion of temporary contracts to permanent ones;
3.5 the extent to which there have been repeated renewals;
3.6 the availability of a post on the educator establishment;
3.7 the rights and entitlements of the governing body of the public school;
3.8 the public interest; and
3.9 the nature and scale of undertaking the provision of public schooling.

54. It should be borne in mind that the onus of proof is on the Applicant in this matter to prove that a reasonable expectation was created in the above circumstances. The Courts have also guided that this expectation should be based on objective and not only subjective grounds, as articulated in NUM obo Mpaki vs CCMA & Others JR 1983/2014 handed down on 9 September 2016, in which the Labour Court held that apart from the subjective perception there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances, and identified a number of factors which may influence such a finding, such as agreements, undertakings by the employer, custom or practice in regard to renewal, the availability of the post, the purpose or reason for conclusion of the fixed-term contract, inconsistent conduct, failure to give reasonable notice and the nature of the business.

55. The following facts had emerged as either common cause or remained undisputed during these arbitration proceedings:

56. The Applicant was employed in a post level 1 educator position on a series of fixed-term contracts at Lutzville High School commencing from 2017 until 31 December 2022 teaching Economic Management Science (EMS) for grades 7 to 9 and Consumer Science for grades 10 to 12. She applied for a School Governing Body (SGB) vacancy for 2017 and was for that year employed on a SGB contract. It is noted from her service record that she had also previously worked for the WCED during 2010 and 2012, but these were presumably with other schools. From 1 January 2018 she was employed on WCED contracts of varying periods, with the last contract being from 1 April 2022 to 31 December 2022. From 1 January 2018 to 31 March 2022 she was employed against vacant promotional posts on the school’s staff establishment, as explained by the witness Mr Arthur, whose section administers the staff establishments at schools. From 1 April 2022 to 31 December 2022 she was for the first time appointed against a vacant substantive post level 1 position on establishment.

57. The reason provided why her last WCED contract was not renewed in 2023 was because she had not taught Mathematics and/or Computer Application Technology (CAT), which were identified as the priority needs for the school commencing 2022. The non-renewal of the Applicant’s contract was not based on performance or misconduct related issues. The non-renewal of the Applicant’s fixed term contract with the WCED was confirmed by the School Principal in writing on 15 November 2022 subsequent to a SGB meeting held on 14 November 2022. The Applicant party therefore regarded 15 November 2022 as the date of dismissal since it was the date that the WCED notified the Applicant of the intention not to renew her contract.

58. The 2nd Respondent, Ms Zelmia Wichmann, was a recently qualified educator and was appointed into a SGB post with the school commencing 2022 to teach CAT. She was appointed into the WCED contract post that the Applicant had previously occupied with effect from 1 January 2023. The Applicant was offered a SGB contract teaching the same subjects at the same school with effect from 1 January 2023.

59. The remuneration for a SGB fixed-term contract differs from that of a WCED fixed-term contract. The Applicant’s basic salary in December 2022 was R 25 259.25 per month, with a cash allowance of R 1 352.00 and 37% service benefits of R 9 345.92, totalling gross earnings of R35957.17 per month. In her current SGB post she earns a basic salary of R 24 471.17 per month, without any other benefits. The difference in remuneration based on these amounts is R 11 486.00 per month.

60. The Applicant applied for conversion from temporary to permanent status in terms of the provisions of the Collective Agreement on 21 July 2022 which was submitted by the School to the Circuit Manager on 29 September 2022 for further processing. The SGB did not recommend her conversion based on the school’s operational needs. The School Principal was informed that the conversion application was unsuccessful, of which the Applicant was notified on 3 October 2022, subsequent to which a grievance was lodged and a dispute relating to the interpretation and/or application of a collective agreement relating to the Applicant’s conversion to permanent status was referred to the ELRC on 14 October 2022. This dispute under case reference ELRC558-22/23WC was declared unresolved at conciliation on 10 November 2022 and set down for arbitration on 9 December 2022, which is still in process with an outcome pending.


61. The foregoing, as well as the evidence presented at the arbitration by the parties’ witnesses and in the admitted documents, will be applied against the provisions of the Collective Agreement and the relevant factors to be considered in terms of paragraph 3 of the Collective Agreement as to whether a reasonable expectation had been created that the Applicant’s fixed-term contract with the WCED would be renewed in 2023. The detail of the witnesses’ evidence is not replicated here, which is sufficiently summarised in the body of the award. It is stated at the introduction to paragraph 3 that all relevant factors, including the following should be taken into account, hence the listed factors are not exhaustive:

3.1 The purpose and reason for the temporary contract: The justifiable reasons for the appointment of temporary educators are set out in paragraph 2 of the Collective Agreement. Although the reason was not specifically stated by either party, it is deduced from the allocated staff establishment that there was an increase in the volume of work and a need for an additional post level 1 educator at the school, which however exceeded 12 months. Since nominations and motivations for temporary appointments were made by the SGB and Principal and accepted by the WCED, the purpose and reason for the Applicant’s temporary contracts were not disputed and are regarded as accepted.

3.2 The provisions of the employment contract and any other agreements: This appeared to be a grey area, since no fixed-term contracts of employment were handed in as evidence setting out the terms and conditions of the temporary employment and contract periods with receipt acknowledged and signed by the Applicant, except for the Principal and SGB’s applications for extension of the Applicant’s contract appointments directed to the Directorate Recruitment and Selection of the WCED. The only contract provided was that of the SGB contract for 2023 which was signed by the Applicant on 24 November 2022 and on which it was noted that the conversion process had been taken to arbitration. Otherwise it was unclear what the WCED’s practice is in this regard, but it would appear that the agreements between the school and the Applicant were mainly of a verbal nature and that the only supporting documentation was the nomination documents and applications signed by the Applicant, with no written confirmations of the contract appointments provided to the Applicant herself. The documents provided by the WCED supported that every WCED contract appointment for the Applicant was duly nominated, motivated and authorised and checked against the school’s approved staff establishment for each year from 2018 to 2022. I would however have been more comfortable if there had been clear and unambiguous documented terms and conditions with respect to the Applicant’s fixed-term contracts with the WCED through the SGB and Principal, which inter alia stated to the Applicant that the WCED contract post is an interim measure or concession with a financial benefit which can be withdrawn if the approved staff establishment no longer allows it and that the contract post may revert back to a SGB contract post in those circumstances, with sufficient notice given should it revert back to a SGB post. Where there is such lack of clarity and understanding then a reasonable expectation could be created that any future contracts would continue to be WCED temporary contracts.

3.3 The conduct of the employer, including whether the employer had acted consistently, the nature of the undertakings by the employer and whether the undertakings were given by a person with the requisite authority: This was a disputed area, since the Applicant had stated that in 2017 when the WCED contract was offered to her for 2018 the Principal had indicated that there was a possibility of permanency, which the Principal had denied, explaining that she did not have the authority to make a position permanent. This is correct in terms of the Collective Agreement with respect to the conversion process that the Principal does not have that sole authority and responsibility. It may well have been that the Principal had indicated at the time of the commencement of the relationship that a temporary post can become permanent, since the conversion process allows it, but that is not a guarantee or promise that a position will become permanent in years to come. If anything, that would relate to a reasonable expectation that conversion may be possible if all the conditions are met, but is not specifically associated with the renewal of a fixed-term contract. The Applicant’s testimony that the Principal’s exact words every time when the contract came up for renewal was that she remained the first option or choice for appointment in the contract post was not challenged, and can also contribute to a reasonable expectation that her contract with the WCED would continue to be renewed. With respect to consistency, it is noted from the SGB minutes of 14 November 2022 it was not only the Applicant, but also another temporary educator who was appointed on a WCED contract, whose WCED contracts were not renewed for 2023 but reverted to SGB contracts in 2023, hence no differential treatment applied, or was alleged.

3.4 The law, practice and custom relating to the renewal of temporary contracts or the conversion of temporary contracts to permanent ones: The Collective Agreement, the South African Schools Act, 84 of 1996 (the SA) the Employment of Educators Act, 76 of 1998, (the EEA), the Employment Equity Act 55 of 1998 (the EEA), the Public Service Act, 1994 (Proclamation No 138 of 1994) (PSA) as applicable to non-educator staff, and the LRA define the law and practice surrounding the renewal of temporary contracts and the conversion of temporary contracts to permanent ones. It is common cause that the Applicant applied for conversion from a temporary to a permanent contract on 21 July 2022. The Principal had confirmed that the school through the SGB had on 29 July 2022 not recommended the conversion because the subjects that the Applicant taught did not meet the future operational needs of the school, namely to teach CAT to grades 10 to 12. This was also confirmed in the correspondence addressed to the Principal of Lutzville High School from the Assistant Director: Recruitment and Selection of the WCED dated 30 September 2022 relating to the Applicant’s conversion application with effect from 1 November 2022 in Further Education and Training (FET) Phase, of which the following extract is relevant:
It is noted that Ms Smit is in possession of a National Diploma (Food and Beverage Management) and a Post Graduate Certificate in Education (FET Phase) issued by the Cape Peninsula University of Technology and is professionally qualified to teach only Consumer Studies in the FET phase.
Ms Smit is not suitably qualified to teach Computer Applications Technology (CAT) in the FET phase and therefore her conversion/appointment is not approved.

When this was conveyed to the Applicant upon receipt of the letter it should have been an indication to her that there may not be a reasonable expectation of her fixed-term contract with the WCED to be renewed whilst awaiting the conversion implementation, if the conversion was approved. The outcome of the arbitration of the dispute that was lodged with the ELRC relating to the conversion process is not yet available at the time of writing this award and will obviously have an impact on the outcome of this arbitration.

Section 198B of the LRA relating to fixed-term contracts provides the provisions and protections to employees employed on fixed-term contracts in order to prevent abuse of fixed-term contracts by employers to avoid permanent employment. However, these provisions only apply to employees earning below the BCEA threshold, which from 1 March 2023 is R241110.59 per year and equates to R20093 per month and from 1 March 2022 was R224080.30 per year or R18673 per month, hence these provisions do not apply to the Applicant. It is noted that the factors set out in paragraph 3 of the Collective Agreement are guided by the factors referred to in subsection (4) of section 198B of the LRA. Although section 198B does not apply to the Applicant, the principle stated in subsection (6) nevertheless remains relevant, and refers back to the concerns expressed in relation to factor 3.2, which is as follows:
(6) An offer to employ an employee on a fixed-term contract or to renew or extend a fixed-term contract, must –
(a) be in writing; and
(b) state the reasons contemplated in subsection (3)(a) or (b).

3.5 The extent to which there have been repeated renewals: It was common cause that the Applicant was appointed in numerous fixed-term contracts with the WCED from 1 January 2018 to 31 December 2022 and on a fixed-term contract with the SGB in 2017 when she commenced with Lutzville High School. The written details of all these successive fixed-term contracts were not provided but deduced from the approved staff establishments and post allocations testified to by Mr Arthur for Lutzville High School since 2018, as well as the contract extension applications and nomination documents provided for the contract appointments. Although the Applicant party had disputed the veracity of the post allocation grids as provided by the WCED for the period since 2018, they nevertheless corresponded with the staff establishments, which were not placed in dispute. What distinguishes this case from other contract non-renewal disputes is that the Applicant was in fact offered a new fixed-term contract from 1 January 2023 at the same school, but with the SGB and not the WCED. Her unhappiness surrounding this was testified to as being because of her personal circumstances that she had become dependent on the security and improved benefits and remuneration associated with the WCED post, which entails a decrease of R11486.00 per month in her earnings whilst on the SGB contract. The Applicant had also felt that it was unfair to her that a recently qualified educator with only one year’s experience at the school would get the benefit of the WCED fixed-term contract remuneration and security whereas she had at end 2022 completed six years of temporary employment with the school (five years on WCED contracts and one year on a SGB contract) and was of the view that the school and the WCED should have retained the CAT educator in the SGB post and retained her in the WCED post for 2023.

As an outsider not intimate with the operations of the education system, this would on the face of it smack of unfairness, that a newly appointed person would have the advantage over a longer serving staff member with a good work record. However, the Principal had testified and explained how the operational needs of the school had changed and why the CAT appointment was justified, which evidence was not effectively disputed by the Applicant party. As to when the Applicant was notified that her contract with the WCED would not be renewed in 2023, the Principal’s version was that there was already a discussion in March 2022 with the Applicant surrounding the school’s future operational needs, which was denied by the Applicant party since no proof of a particular communication in this regard could be provided. The Applicant however testified in her evidence in chief that she became aware that her WCED contract would not go beyond December 2022 when Ms du Toit was appointed as HOD on 1 March 2022 and she was told she will only be on contract till the end of the year. She was also informed that the WCED will not appoint her on contract in 2023 and that they will appoint a new educator with other subjects of Mathematics and CAT in the contract post that she had held. This was presumably the discussion in March 2022 that the Principal had alluded to. After they told the Applicant they were going to appoint somebody else in her contract post her Union the SAOU visited the school and a grievance process was instituted, followed by the application for conversion into a permanent position. The Applicant’s version was however that she was for the first time only on 15 November 2022 informed officially in writing of the SGB’s decision on 14 November 2022 not to renew the WCED contracts for herself and a colleague for 2023 but to place them on SGB contracts instead. This was after the Applicant on 10 November 2022 had enquired from the Principal and the SGB in an e-mail in which she confirmed her understanding that her conversion was not approved by the WCED and enquired whether her WCED contract would be renewed or terminated and requested written confirmation of the contract termination and whether she will be appointed into a SGB post from 1 January 2023 if the WCED contract is terminated.

It is noted that more timeous and comprehensive communication and consultation regarding these changes and how they would impact on the Applicant’s WCED contract post after the many repeated contract renewals could have prevented the current scenario. In the absence of documented contracts and agreements this could still have left the Applicant with a reasonable expectation prior to 15 November 2022 that her WCED contract would be renewed in 2023, especially since the CAT educator was in a SGB post in 2022 and the reasonable expectation for the Applicant was that the CAT educator would continue in the SGB post in 2023. The Principal in turn had motivated why the SGB felt it important to appoint the CAT educator, being the 2nd Respondent, into the Applicant’s WCED post, and that it was primarily because of the scarcity of skills and the difficulty in attracting and retaining suitably qualified educators in the rural area in which the school is located, which is not an unreasonable view in the circumstances.

3.6 The availability of a post on the educator establishment: According to the evidence a vacant substantive post at post level 1 was not available at Lutzville High School for the Applicant to be appointed on a fixed-term contract against in 2023. The vacant educator posts on the 2022 post allocation grid were advertised in May 2022 as contract WCED posts with appointment from 1 January 2023, with the one for FET Phase CAT and/or English and the second being for Intermediary Phase Mathematics, as well as for a permanent SGB post in English and Afrikaans, also for appointment from 1 January 2023.

3.7 The rights and entitlements of the governing body of the public school: All aspects related to school governing bodies are detailed in sections 16 to 32 of the SA, with specific reference to section 16 Governance and professional management of public schools, which states as follows:
(1) Subject to this Act, the governance of every public school is vested in its governing body.
(2) A governing body stands in a position of trust towards the school.
(3) Subject to this Act and any applicable provincial law, the professional management of a public school must be undertaken by the principal under the authority of the Head of Department.

Further, section 20 Functions of all governing bodies states specifically at 20(1) (i) and (j) that subject to the SA, the governing body of a public school must (note this is peremptory) recommend to the Head of Department the appointment or educators and non-educator staff at the school, subject to the applicable legislation. It is noted that the functions of a SGB do not include that it may employ staff. However section 21 provides that the SGB may apply to the Head of Department to be allocated additional functions, which includes paying for services to the school. Section 37 relating to school funds and assets of public schools provides at subsection (6) that school funds can be used for educational purposes. These provisions imply that a SGB can employ educators in its own right, which would normally be in the nature of fixed-term temporary


contracts.
Factors 3.8 and 3.9 are not addressed in this matter.

62. In considering the foregoing facts and the evidence presented by the parties, I find that a reasonable and objective expectation had been created, on the balance of probabilities, that the Applicant’s fixed-term contract with the WCED would be renewed again in 2023, with reasons such as a practice which had occurred over five years, the lack of clarity relating to the nature and purpose of the fixed-term contracts that the Applicant was employed in, the inadequate communication and consultation with the Applicant relating to her fixed-term contracts and that the first official notification was at short notice on 15 November 2022 that her contract with the WCED terminating on 31 December 2022 would not be renewed and that she will be placed back on a SGB contract on less remuneration with effect from 1 January 2023.

63. In the circumstances a dismissal is found relating to the non-renewal of a fixed-term contract, which is also deemed to be unfair, with the date of dismissal being 15 November 2022 when the WCED through the Principal and SGB informed the Appllicant that her contract with the WCED would not be renewed in 2023. The Applicant is accordingly entitled to relief for an unfair dismissal.

RELIEF

64. The Applicant party had at the onset requested as relief reinstatement with retrospective back-pay from 1 January 2023. In their closing arguments they elaborated on three options for relief, as follows:

Option 1: The Applicant should be retrospectiveliy re-instated on contract from 1 January 2023.
Option 2: The Applicant should be re-employed as soon as possible with reasonable, monetary compensation for each month since the day of her unfair dismissal, depending on how long the Applicant has been dismissed.
Option 3: Alternatively, the Applicant should be awarded reasonable, monetary compensation equivant to 12 months remuneration calculated at R413430.84 (R34452.57 gross salary p m at the time of dismissal).

65. Section 193 at subsections (1) and (2) of the LRA provide the following remedies for an unfair dismissal that an arbitrator has the discretion to exercise:

(1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may –
(a) order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless –
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair procedure.

66. The first relief option that the Applicant party had requested was reinstatement with retrospective back-pay from 1 January 2023. On the evidence I find that it will not be practicable to reinstate or re-employ the Applicant in the WCED contract position that she had previously occupied since it was established that there is no suitable contract post available at the school against establishment for 2023. Further, the post that she had previously held has already been occupied by the 2nd Respondent, who it would be unfair to depose at this stage and is a decision that only the SGB and Principal in conjunction with the Head of Department has the authority to make. I will instead consider the Applicant party’s third option of compensation, but not to the extent as suggested by them.

67. With respect to the appropriate amount or quantum of compensation that could apply in a particular case, section 194 Limits on Compensation of the LRA provides as follows:

(1) The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.

68. It was common cause that the Applicant has been employed on a fixed-term contract with the Lutzville High School SGB commencing from 1 January 2023 on a gross salary of R24471.17 per month for 13 months, with the 13th month presumably for an annual bonus provision, as confirmed in the SGB minutes of 14 November 2022 which were ratified on 6 February 2023. The Applicant party had as compensation requested that the Applicant be paid 12 months’ compensation at R34452.57 gross per month, which is what she had earned when her contract with the WCED terminated at end December 2022. R35957.17 is in fact the actual amount of gross remuneration per month confirmed as common cause that the Applicant received in December 2022, which is the amount that will be applied for comparative purposes.

69. To order the WCED to pay an amount of compensation based on the Applicant’s previous remuneration in addition to the amount that she is presently receiving from the SGB could be regarded as undue enrichment and unfair to the institution, hence only the difference of R11486.00 per month will be considered as compensation, and only for the period of the contract with the SGB. From the SGB minutes the amount of R24471.17 per month was approved for the Applicant for 13 months, allowing for an annual bonus provision, from 1 January 2023 to 31 December 2023. I do not believe it is appropriate that the total amount of R149318.00 be paid in full in advance since this is to compensate for the reduction in the Applicant’s monthly earnings as a result of the SGB contract, when she had expected to be remunerated at the WCED contract remuneration for the whole year of 2023. In such circumstances the compensation for the seven month period from January 2023 to July 2023 would now be due, with the remainder to be paid on a monthly basis in installments as earnings until the termination of the SGB contract on 31 December 2023.

AWARD

70. A reasonable expectation had been created that the 1st Respondent, the Western Cape Education Department, would renew the Applicant, Ms Anda Smit’s, fixed-term contract which expired on 31 December 2023, for a further 12 months in 2023.

71. Since the Applicant is presently employed on a fixed-term contract with the School Governing Body of Lutzville High School for a period of 12 months including a 13th bonus month from 1 January 2023 to 31 December 2023, the 1st Respondent is to pay the Applicant compensation of the difference in remuneration between the WCED and SGB fixed-term contracts of R 11 486.00 per month for 13 months totalling R 149 318.00, less statutory deductions, as follows: The amount of R80402.00 to be paid not later than 31 July 2023 and the amounts of R11486.00 each per month in installments to be paid by not later than 31 August 2023, 30 September 2023, 31 October 2023 and 30 November 2023 respectively with a final payment in the amount of R22972.00 not later than 31 December 2023.

72. No order is made with respect to costs.

SIGNED AT MALAGAS ON THIS 12th DAY OF JULY 2023.


Alta Reynolds
Panelist