ELRC214-23/24EC

Panelist: Clint Enslin
Case No.: ELRC32-23/24WC
Date of Award: 31 August 2023

In the ARBITRATION between:

NAPTOSA obo Lyzette van Zyl & 4 others
(Union / Applicants)

and

Department of Higher Education and Training: Western Cape
(Respondent)

Applicant’s representative: Mr Riedwaan Ahmed (NAPTOSA)
Applicant’s address:

Telephone:
Telefax:
Email riedwaana@naptosa.org.za

Respondent’s representative: Mr Simphiwe Dlamini
Respondent’s address:
Telephone:
Telefax:
Email simphiwe.dlamini@sccollege.co.za

DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 17 of the ELRC Constitution: ELRC Dispute Resolution Procedures. The hearing was held via Zoom (virtual) on 3 and 8 August 2023.

2. The Applicants, Ms Lyzette van Zyl and Ms Sussanna Rheeder, were present and represented by Mr Riedwaan Ahmed, Provincial Senior Executive Officer, from NAPTOSA, a registered trade union. The Respondent, Department of Higher Education and Training: Western Cape (“DHET”), was represented by Mr Simphiwe Dlamini, Senior Labour Relations Officer DHET, of the Respondent.


ISSUE TO BE DECIDED
3. Whether the Applicant were dismissed, as per section 186(1)(b) of the LRA, by the Respondent and if so whether the dismissal was substantively fair.
4. If the dismissal is established and it is found to be substantively unfair, determine appropriate relief.

BACKGROUND TO THE ISSUES

5. There were initially five Applicants, however, the Union representative confirmed that he represented all of them and that the other three Applicants no longer wished to pursue this dispute and as such had abandoned same. The matter therefore proceeded only for the two remaining Applicants, as set out above.

6. The following facts were agreed to between the parties as common cause and there existed no dispute of fact.

6.1 Both Applicants had previously been employed by the College Council of South Cape TVET College on various fixed term contracts (“FTCs”).

6.2 Both Applicants were employed on FTCs, by the DHET from 1 July 2022 until 31 March 2023.

6.3 Both Applicants received FTCs from 1 April 2023 to 30 June 2023 from the College Council.

6.4 Neither of the Applicants suffered any financial loss up to and including 30 June 2023.

6.5 Both Applicants were qualified for the posts they occupied.

6.6 Both Applicants were post level 1 educators and rendered their services at South Cape TVET College.

6.7 The Applicants were informed on 28 March 2023 that they would receive a new FTC, but that same would be from the College Council and not the DHET.

7. The Applicants submitted two bundles which will be referred to as “A1” and “A2”. The Respondent submitted one bundle which will be referred to as “R”. Bundle R comprised of eleven parts. Parties agreed that the documents were what they purported to be.

8. The Applicants seek to be reinstated, either on FTC or permanently, retrospectively by the Respondent.

9. The matter was electronically recorded.

SURVEY OF EVIDENCE AND ARGUMENT

10. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in
terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
evidence and arguments heard and considered in deciding this matter.

APPLICANT’S CASE

Ms Sussanna Rheeder

11. Ms Rheeder testified that she had been lecturing at the college for nine and a half years. She was aware of the migration process from the College Council to the DHET. She had received the same letter as the one contained on page 19 of A1. She was called by the campus head to inform her that it would be sent and it was then e-mailed to her. She had signed acceptance of the offer contained in the letter on 29 June 2022. The first part of the letter read: “It is with pleasure to inform you that the PPN committee has nominated you to be migrated on a fixed term contract from 1 July 2022 to 31 March 2023 to the Department of Higher Education and Training, under the following conditions: ………..” She had met the requirements/conditions. During her employment by the College Council she was not required to meet all the requirements listed, except for having to submit her qualifications. There was no sentence in the letter stating that there should be no expectation of renewal.

12. From the year 2014 to 2022, she knew of three other migration processes. The persons migrated during these processes were first migrated on FTCs and then became permanent. Their contract with the DHET ended on 31 March 2023 and they were then given a FTCs from the College Council for three months, which was not renewed. They had a team’s meeting on 28 March 2023, during which they were informed, by human resources (“HR”), that the migration process would no longer continue due to budget constraints. They were informed that the budget had been cut by 8 million rand and as such the migration could not continue. She, however, still felt that they should have migrated as HR kept sending documents for completing for pension, medical and housing, which were only for permanent employees. HR had also stated in the meeting that the migration was not completely off the table and that some might migrate, but not all.

13. She knew of ELRC Collective Agreement 5 of 2013, dated 7 November 2013, as per page 26 onwards of A1. She knew that it dealt with migration moving from FTC to permanent and her understanding of it was that she should be migrated to the DHET. The safety and security subjects that she lectured were subject to student numbers, but during all her years at the college there had always been sufficient numbers.

14. The basis of her expectation was:

14.1 Previous migration processes had ended in educators being made permanent.
14.2 They had followed the entire process including clearances, etc.
14.3 Campus management had stated that the migration was not off the table yet.
14.4 After nine and a half years, she wanted stability.
14.5 No one had pointed out that it was only a contract (FTC).
14.6 They saw the migration process as they had previously known it which ended in permanency.
14.7 Clauses 4.4.2.1 (page 28 of A1), 4.2.3, 4.4.1 as well as 4.4.3 (page 29 of A1) of the Collective Agreement.

15. In 2021 she had been identified for migration, but same did not take place as the subject she taught in George was moved to Oudtshoorn. She knew of the PPN process, but did not know exactly what it entailed. She knew that when they did not migrate they would usually be told that it was because of the PPN.

Ms Lizette Van Zyl

16. Ms Van Zyl testified that she had commenced working at the college in January 2013. Her employer had always been the South Cape TVET College Council. She had been employed by them on various FTCs ranging from six months to twelve months in duration. In 2015 there was a migration process from College Council to the DHET, but she was not part of same. During 2022 she was initially on a six month FTC. On 30 June 2022 she was called to sign documents. She went to the Campus Head, who congratulated her and said that she would be migrating. She was given the migration letter and saw it was an FTC. She asked the Campus Head about it and, if her memory was correct, she said it was for the 37% in lieu of benefits and that after that they would be permanent. One person had migrated at the campus in 2021 and it was first FTC and then permanent. She believed that at the end of the FTC period of nine months with the DHET, the 37% would be converted into benefits as those who migrated usually received benefits from the new financial year. They had also been given forms by HR to apply for housing, medical aid and pension fund.

17. On 14 November 2022 they received an e-mail, as per page 22 of A1, from Mr Gcuwa, Deputy Principal Corporate Services of the College, stating that they were eligible to become part of GEMS (medical scheme). On 23 February 2023 the Campus Head called them and informed them that the migration was stopped due to budget reasons. He stated that it was not completely stopped. They then knew that they may not migrate, but for the previous eight months they had believed that they would. No one had previously moved to PERSAL and then back to the college. She had sent an e-mail where she requested benefit forms to be sent. She had done so as she did not know what was going on. There was an e-mail stating that the documents had been sent erroneously.

18. She had received the same letter as on page 19 of A1, on 30 June 2022. She understood that it was a FTC. It did not indicate that there should be no expectation of renewal or permanency. She had accepted the offer and complied with the requirements/conditions. During her employment with the college, she had only been asked for her qualifications, but not the other requirements contained in the letter. Her subject was subject to student numbers, but in all the time she had been there, there was only a shortage of students in 2017. Page 39 of A2 was an e-mail she had received, on 15 February 2023, asking her to take part in a survey due to the fact that she was migrated to PERSAL. Pages 35 and 36 of A2 was a status update of the college’s PPN on 17 October 2022. It referred to thirteen lecturers that had been migrated from college council to PERSAL. This included her and Ms Rheeder. This statement was also the same as in the previous year and as such she believed they would go through the same process and become permanent.

19. She agreed that there was financial pressure, but believes that the college was cutting in the wrong area. She conceded that the circular of 15 February 2023 relating to absorption, as contained on page 35 of A2, under the heading “background” confirmed that the filling of positions, which the college qualified for, either by migration or by recruitment and selection was subject to available funds. She understood that budget allocations came from National Treasury. She had sent the e-mail marked as “annexure 2 in R1 (b) e-mail from Thando”. The said e-mail was sent by her on 16 March 2023 and read: “Dear Thandokazi. We, the migrated lecturers from Oudtshoorn Campus, would like to know, if our migration process has been completed and if we are permanent staff of DHET? According to our PERSAL payslips it appears to be the case. We want to know because we were told that some of the migrations are maybe going to be stopped (ending the 31st of March). Kind Regards, Lizette van Zyl, Landi Niemandt, Marisa Rheeder, Anneline Badenhorst and Trudie De Klerk.” She had sent this e-mail as she wanted to know what was going on.

RESPONDENT’S CASE

Ms Annemaree Tyler (Chief Personal Officer DHET)

20. Ms Tyler testified that she had been part of the PPN team. She had an administrative role and took minutes. As an HR management team they had to go back and see how much budget was left. The college and the PPN committee had to choose a structure to implement. All Heads of Departments (HODs) and Campus Heads were part of the PPN committee and they were to communicate with staff about the plan. Consulting sessions were held in this regard. The three things they looked at when migrating staff were, budget, programs offered and qualifications and experience of staff to match into the structures. Employees had been informed from the start to end of the process.

21. She confirmed that the PPN process was a phased process as it depended on funding and procedure. It had four phases. Its focus was to fill critical vacancies at colleges. She agreed that the positions identified green on the spreadsheet handed in by the Respondent (R1 annexure 11) were identified as critical vacancies. Although the Applicants were in these positions, it was the position that was identified as critical and not the individual. Even though a position was identified as critical, it may not be filled due to costing/budget issues. They had been appointed on FTC as the positions were identified as critical and there was budget available until the end of the financial year, being 31 March 2023. The Applicants had agreed to migrate until end of March on contract. Although HODs and Campus Heads were to consult and update staff, she could not say if the Applicants were in fact consulted and updated.

ANALYSIS OF EVIDENCE AND ARGUMENT

22. The Applicants’ dismissal is in dispute and the onus is therefore, in terms of Section 192 of the LRA, on the Applicants to prove the existence of a dismissal. If the Applicants are able to establish the existence of a dismissal, the Respondent must then prove that the dismissal of the Applicants was fair.
Was the dismissal established?

23. According to the common-law a fixed-term contract (“FTC”) of employment terminates at the expiration of the term for which it was entered into. The termination follows automatically and is not seen as a dismissal or termination by the employer. However, Section 186(1)(b) of the LRA states that a dismissal occurs where an employee, employed in terms of a FTC, reasonably expected the employer:

23.1 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

23.2 to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the FTC, but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee.

24. The Applicants’ case is that they had a legitimate expectation that their contracts would be renewed on the same or similar conditions or on an indefinite basis. As such they are claiming a dismissal in terms of section 186(1)(b)(i) or (ii) of the LRA. In order to be successful with such a claim, the Applicants must show that they had a subjective belief that their contract would be renewed and that such subjective belief was based on objective facts supporting the belief.

25. Factors put forward by Ms Rheeder for her alleged expectation:

25.1 During her employment by the College, she was never required to meet all the requirements as with the DHET.

25.2 There was nothing in the migration letter stating that they should not have expectations.

25.3 In previous migration processes, the persons were first put on FTC and then became permanent.

25.4 HR sent documents relating to benefits, for them to complete.

25.5 They were told that the migration was not completely off the table and that some might migrate, but not all.

25.6 The entire process, including clearances had been followed.

25.7 She wanted stability after nine and a half years.

25.8 No one had pointed out that it was only a FTC.

25.9 Her understanding of Collective Agreement 5 of 2013 was that it dealt with migration which entailed moving from FTC to permanency.

26. Factors put forward by Ms Van Zyl for her alleged expectation:

26.1 The Campus Head had congratulated her and said she would be migrating.

26.2 She queried why it was FTC and, if her memory served her, the Campus Head said that it was for the 37% in lieu of benefits as those migrated usually receive benefits from the following financial year.

26.3 One previous migration at the College had first been FTC and then Permanent.

26.4 She was given forms to complete for benefits.

26.5 They were told that the migration was not completely stopped.

26.6 No one had previously moved to PERSAL and then back again.

26.7 There was nothing in the migration letter stating that they should not have expectations.

26.8 During her employment by the College, she was never required to meet all the requirements as with the DHET.

27. I will deal first with factors raised that are common to both. Both claim that during their employment with the college they were never asked for all the requirements that they were asked for or had to comply with for DHET. To my mind this factor plays no significant role. The DHET would in all probability have different employment criteria to the college itself. It is common cause that the Applicants were employed by the DHET for a period. There is nothing before me indicating that employment on a FTC by the DHET would require different requirements to permanent employment by the DHET. The fact that the college did not require what the DHET required to employ them takes the matter no further.

28. Both claim that the migration letter did not state that they should not have expectations. Both agreed and/or conceded that the migration letter stated that they would migrate on a FTC basis and that it also contained a start and end date of same. This much is in any event clear from the letter itself. I believe that the wording is clear in that it confirms that the migration will be on a FTC basis and it in fact gives the start and end date. I do not believe that the fact that the letter does not state that they should not have expectations means that such expectations are therefore justified. Both Applicants are educated individuals. How clearer could it have been other than to confirm it is on FTC basis and give the start and end date? The Applicants were previously employed on FTCs by the college as well and not on a permanent basis. I believe the letter was very clear on the terms, being that of FTCs.

29. Pervious migration processes lead to persons first being placed on FTCs and later becoming permanent. It is clear that the purpose of the process is to identify critical posts and preferably have them filled by staff employed by the DHET, by various means, including migration. It is also clear that identification is not enough. Any implementation in relation to identification is subject to finance for same being available. Neither Applicant denied the claim of the Respondent that the migration did not continue due to financial/budgetary constraints. As such, perhaps there were funds previously, but not now. Comparing what happened previously with now is not a true reflection of the situation. The clear reason given why the migration was on an FTC basis and then ended was as a result of finances. In any business plans to improve can be made, but if there is no finances to action such plans, they cannot be executed. Why should the DHET be any different? Previous migrations cannot, in my view, be compared with as circumstances may have changed, as in this instance.

30. They were sent documents to complete for benefits. It was explained in, an e-mail response to them, that this was an error. I do not believe that an administrative error should/can legitimately lead to an expectation of renewal or permanency.

31. They were told the migration was not completely stopped and that some may still migrate. If this is correct, what made the Applicants believe that their migration would continue? The fact that it was said some may still continue can, in my view, only mean that none may continue or that some, not all, may continue. I cannot see how the Applicants adduced from this that theirs would continue. They may have harbored hope for theirs to continue, but hope cannot be equated to a legitimate expectation. There is a difference between hoping something will happen and having legitimate expectation that it will happen.

Factors claimed unique to Ms Rheeder

32. The entire process, including clearances, had been followed. There is, to my mind, nothing in this that indicates that completing the process and doing clearances meant that there would be ongoing or indefinite employment. As testified, they were required to meet requirements not previously expected of them during employment with the College Council. There was no evidence that this (clearances) was not part of the normal requirements of the DHET for any form of employment, including on an FTC basis. The fact that the employment process had been followed also takes the matter no further. Surely the DHET would have an employment process to be followed for all employees, be they indefinite, FTC or otherwise. There is nothing before me indicating that the Applicants were put through an employment process reserved only for indefinite employees.

33. She wanted stability after nine and a half years. Whilst I can understand this, her need/desire for stability cannot, in my view, lead to any expectations.

34. No one had pointed out that it was only an FTC. As stated previously, the migration agreement states clearly that the migration is on a FTC basis and sets the start and end dates of same. I am not sure why she expected it to be pointed out when it was clearly written there. Given that the she is a learned person, I do not believe any further pointing out was required.

35. She understood Collective Agreement 5 of 2013 to deal with migration, which she believed to be from FTC to permanency. This Collective Agreement deals with migration from College Council to DHET in certain circumstances, however, it inter alia, states that migration will be on the same terms and conditions and it also refers clearly too temporary or contract lectures. I therefore do not agree that it deals with only FTC to permanent situations.

Factors claimed unique to Van Zyl

36. The Campus Head had congratulated her and said she was migrating. If the Campus Head had done so, I can find no issue therewith. It would be in line with what the migration letter said. She was migrating, all be it on an FTC basis as per the migration letter. The hope from both her and the Campus Head may well have been that it would lead to permanency with the DHET, but there was nothing indicating that to be the case.

37. When she queried the FTC from the Campus Head, he said it was for the 37% in lieu of benefits and that benefits that those migrated are normally paid benefits from the next financial year. This she stated was if her memory served her correctly. In my view this means that her recollection of what was said may not be correct. However, even if it was correct, this again, to my mind does not mean that there would be permanency. Collective Agreement 5 of 2013 makes provision for temporary/contract lecturers to receive either benefits of payment in lieu thereof, depending on the length of their contracts. It would therefore appear that it was not only permanent lecturers that could get benefits.

38. No one had previously moved to PERSAL and then back again. This may have been the case previously, but in this case the reason put forward for the migration not being able to continue, be it on a permanent or temporary basis, was that there were no funds available for same. This claim was not disputed. In the feedback on 22 October 2022, it is also confirmed that posts have been identified for filling, in terms of the PPN, via various methods including migration, but that implementation of same is subject to funding. To my mind, no matter how good or well-motivated a process is, if there are no funds to implement same, it cannot go ahead.

In conclusion

39. Whilst I can accept that some of the issues raised may well have lead to a subjective belief, by the Applicants, that they would have their contracts extended or that they would become permanent, I do not believe that the objective facts support such belief.

40. As such, I do not believe that they have established the existence of a dismissal in terms of section 186(1)(b) of the LRA.


AWARD
41. The Applicants, Ms Sussanna Rheeder and Ms Lizette Van Zyl, have failed to establish a dismissal in terms of section 186(1)(b) of the LRA.

42. The claim of unfair disimissal by the applicants is hereby dismissed.

Name: Clint Enslin
(ELRC) Arbitrator