ELRC10-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN VIRTUALLY
CASE NO.: ELRC10-22/23GP
In the matter between: -

MATACHI APPLICANT

and

DEPARTMENT OF HIGHER EDUCATION RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 17 July, 25 August and 10 October 2023
CLOSING ARGUMENTS: 17 October 2023
DATE OF AWARD: 03 November 2023
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1) – Unfair dismissal
ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 17 July 25 August and 10 October 2023. The Applicant was represented by Mr D. Mkhwanazi, an attorney. The Respondent was represented by Mr N.Zitha, its Assistant Director, Labour.

2. The proceedings were recorded digitally. The parties were given until 17 October 2023 to submit their closing arguments. The proceedings were digitally recorded. The respondent ‘s bundle is marked “R” and the applicant’s “A”
BACKGROUND TO THE ISSUE
3. The Applicant had referred the dispute of unfair dismissal to the Council for conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The Applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
4. I am required to decide whether the applicant was dismissed, i.e. if the alleged lack of consultation by the respondent with the applicant and the failure by the respondent to provide the applicant with the deadline to furnish the required documentation amount to dismissal or if her fixed term contract of employment came to an end.

AGREED FACTORS
5. The parties agreed to the following factors as being common cause: -
5.1. The Applicant started her employment with the Respondent on 27 January 2014 as a PL1 Lecturer at Carletonville WestCol;
5.2. At the time of her alleged dismissal, she earned a salary of R28 827.87
5.3. The Applicant’s contract of employment came to an end on 31 December 2022.
5.4. The reasons for termination are not provided in the termination letter.
5.5. The Applicant received a letter of appointment for the period from 01 January 2022 to 31 December 2022.

SURVEY OF ARGUMENTS AND EVIDENCE
6. Tendayi Matachi, testified that her employment was terminated in terms of the letter which read thus-

“RE: NOTICE OF TERMINATION OF YOUR TEMPORARY APPOINTMENT AS A
LECTURER AT WESTCOL TVET COLLEGE: CARLTONVILLE CAMPUS
“This letter serves as a reminder that your temporary appointment at the college will be coming to an end on 31 December 2022.
Please note that the college will be advertising the post on a permanent basis.
I would like to thank you for all your contributions to the college and I wish you all the best in your future.
Should you need more clarity on the matter, kindly contact the HR office.”

7. The post she applied for at Westcol during 2013, was advertised as a permanent post. However, she signed a Memorandum of Agreement (fixed period) on 13 February 2014which came to end on 30 November 2014, A15.

8. She further signed an Amendment to the Memorandum of Agreement (fixed term) on 30 October 2014 ending 31 March 2015, A20. This amendment was followed by another amendment signed on 29 April 2015 ending 30 November 2015, A21.

9. On 06 July 2015, she received a letter which informed her of an appointment on the staff establishment of DHET as from 01 April 2015 with her persal number on A22. She signed the last Amendment to the Memorandum of Agreement on 02 November 2015, A23.

10. She never signed another agreement. However, she remained in the employ of the Respondent. She received a Temporary Appointment as a Lecturer signed by the principal on 27 August 2017, A24 without signing any agreement.

11. She received a letter from the respondent dated 28 October 2020 stating as follows: -
“AMENDMENT OF EMPLOYMENT STATUS FROM CONTRACT TO PERMANENT
I have the pleasure of informing you that your current contract status will be amended to a permanent employment contract in line with the Labour Relations Act, 1996 as amended with effect from 1 July 2020. The amendment of your employment contract will not affect the salary or your current conditions of service. In line with the regulations related to the employment of foreign nationals, and in order for the Department to finalise your matter, you are required to provide us with the following documents:
(a) Proof of permanent residence
(b) lD document.”

12. The letter did not provide a deadline for the submission of the documents. She was further appointed temporarily without signing an agreement on 2021 and 2022 in terms of R 40 - 41. She was shocked to receive a letter from the respondent in October 2022, which terminated her temporary appointment.
13. She and two other colleagues requested a meeting with the principal to clarify the letter. In the meeting held in October 2022, it was explained that the respondent had adopted a new “aligned structure" idea in terms of which all its employees should either be residents of the Republic of South Africa, or at least have proof of permanent residence or ID document.

14. She was permanently employed because they were informed in 2015 that upon the completion of the migration process, they would be absorbed permanently. At the time of migration, she was on a fixed term contract. All those who were migrated were made permanent.

15. She became permanent on 06 July 2015 by virtue of migration. Since the migration all foreign employees continued to submit documents annually for the extension of their contracts. Human resources explained to them that they were captured as temporary employees, hence the annual submission of documents.

16. She conceded that in 2014 when she started her employment with the respondent, she signed a fixed term contract. The post was advertised as permanent, she did not have the advertisement for presentation as evidence.

17. They had a meeting with the principal in October 2022, who explained to them that they were advertising the posts on permanent basis. They would give preference to qualified South Africans before considering foreigners.

18. The principal informed her that he had a mandate to extend the contract only if she had the required documents for foreign employees. She changed her version that they did not request for extension, but to be given until July 2023 to sort herself as her work permit was expiring in July 2023. They further had a meeting with Ms de Klerk in November 2022.

19. She conceded that she did not meet the minimum requirements to be permanent. She conceded that had she been appointed permanently in 2014, such appointment could have been unlawful because she did not qualify. She was coerced to sign the 2022 contract as she did so, under the pretext that it was permanent.

20. Matai gave her a letter confirming that she was employed permanently in
2021, as she needed it for the application of her work permit. The permit had expired. She had asked Matai to provide her with a confirmation of employment letter.

21. A14, the 2020 letter provided that, she was eligible to be absorbed permanently, provided she submitted proof of permanent residency and Id document. She conceded that she did not meet the minimum requirements. She applied for the permanent residency but has not received the outcome. She would not have been aggrieved, if she was given a timeline to submit. She conceded that PNN on R12 affected all colleges.

22. Boghalo Wesi testified for the applicant that she had been in the employ of the respondent much longer than the applicant. The respondent should have, consulted with all the affected employees, timeously. In addition, the respondent should have provided a reasonable deadline as for the submission of the documents required for permanency and state that failing which it would terminate her services.

23. During cross examination she said she did not know the reason applicant’s dismissal because the dismissal letter did not mention the reason. The letter was questionable because she was employed permanently in 2014 as she applied for the permanent post. The letter dated 19 October 2021 on A15 also states that she was permanent.

24. The migration of staff in 2015 was only conducted to permanent staff not temporary staff. This letter made her permanent She admitted that she signed a fixed term of contract in January 2014 when she started employment with the respondent.

25. The applicant was threatened to sign the contract in October 2021 which came to end on 31 December 2022. She changed her mind and admitted that the applicant was aware that her appointment for 2022 was on a temporary basis.

26. Mandisa Hlatshwayo testified for the respondent that she is the human Resource Manager. The respondent had issued the applicant with a
letter dated 28 October 2020, R26.The letter sought to amend the applicant’s status of employment from fixed term to permanent. Further that, for the respondent to finalise the process she was required to provide (i) proof of permanent residence, and
(ii) ID document.

27. The letter was signed by Ms LC Mbobo (Deputy Director-General: Corporate Services (DHET)). The letter did not provide a deadline to submit the required documents.

28. A meeting was held on 19 October 2022 between the college principal and (two) employees of the Respondent who are foreign nationals. R23. The applicant was not available to attend this meeting. She was part of the meeting. The meeting was about a letter that was terminating the temporary employment of the employees, including the applicant.

29. The employees requested to be given more time to sort out their papers, and for extension of their contracts. The request was not granted. The letter was issued by Westcol and signed by JT Ngcobo - Principal: Western TVET College.

30. There was no employment contract signed between the Applicant and the respondent, but an appointment letter signed by the principal. The last time the applicant signed the contract was on 02 November 2015, which ended on 30 June 2016, A23. If the Applicant met the requirements presented by the letter from the DHET, the applicant would still be in the employ of the Respondent.

31. The applicant was employed temporarily because she did not meet the minimum requirements to be employed permanently, which are South African permanent residency and ID. She had Zimbabwean passport. She was migrated to the department in 2015 but on temporary basis because of lack of the requirements.

32. Her last contract was from January to 31 December 2022, which she signed appointment letter on R40. In 2022 the aligned structure was approved in terms of which all temporary posts were converted to permanent. The posts were advertised for the qualified to apply. The purpose was for stability and continuation of employees. The applicant was affected because she did not qualify. She did not apply.
33. The applicant was not dismissed, her contract came to an end. R25 was a reminder not a dismissal letter. It is the employee’s responsibility to obtain the required documents not the respondent.

34. A13 letter was signed by a clerk who lacked authority to issue the letter. The clerk ‘s duty is to prepare the letter, but it must be signed by the principal as the delegated official by the department. She never gave Matai, authority to sign the letter. The letter is a nullity.

35. During cross examination she testified that despite the absence of a deadline, the applicant was given sufficient time to get the required documentation. She had previously advised the applicant on several occasions that failure to comply with the minimum requirement would affect her in future.

36. Had the applicant submitted the documents in 2021 or 2022 before the posts were advertised, she could have been appointed permanently in terms of the 2020 letter.

37. She denied that A13, the letter signed by Matai in October 2021, made the applicant permanent. The clerk was not authorised to sign. The applicant was never a permanent employee. She became aware of A13 on the day she was testifying. There will be consequences for Matai.

38. They received the aligned structure around April 2022 and the executive took a decision to advertise in September 2023.The reason the applicant was not renewed post 31 December 2022 was because the post was made permanent and was advertised for the qualified. The applicant did not qualify.
39. Letshepeleng Peter Matai testified that he has been employed by the respondent from 2014. At the time he signed the letter on R13 he was a senior administration clerk.

40. The applicant has always been a temporary employee since 2014.It is a requirement for a foreign employee to provide SA ID and permanent residency to qualify for a permanent position. She did not qualify for a permanent position.

41. He did not have authority to issue A13. He signed the letter to assist the applicant with the annual process of renewing work permit. He made a mistake. The applicant was not dismissed but her contract came to an end. During cross examination he reiterated that he had signed the letter without authority. He made a serious mistake.

42. Mandi De Klerk testified for the respondent that in 2022 she was Acting Campus Manager. She convened the meeting with the foreign employees and the principal.

43. They requested the principal to extend their contracts until their work permits expired. The applicant did not inform the principal that she was permanent. She was not dismissed; her contract came to an end on 31 December 2023.

CLOSING ARGUMENTS

44. The applicant argued that the respondent was not expected to wait forever to obtain the required documents. However, the respondent should have consulted with all the affected employees and should have provided a reasonable deadline for the submission of the documents required for permanency failing which it will terminate her services. This should have been a fair procedure.

45. The reason for termination of appointment would be appropriate. A letter from Ms Mbobo, informing the Applicant that she has failed to comply with the DHET’s initial requirements, would have been reason enough for the applicant’s termination of appointment. It is for this reason that the termination of her services was both procedurally and substantively unfair.

46. The respondent argued that throughout the proceedings, the applicant’s version was that she was permanently employed because the position that she applied for was a permanent position. It is common cause that the applicant did not meet the requirements to be made permanent. As a foreign national the requirements were permanent residence and South African Identity document. Hence, she could not have been employed permanently.

47. She also relied on the letter signed by Matai, an administrative clerk in October 2021 confirming that she is permanent. Matai explained that he would normally assist the Applicant when she needed the letter to apply for her work permit yearly. However, all these letters would clearly indicate that the applicant was appointed on a temporary basis.

48. Matai testified that he had no authority to sign the letter on A13. He conceded that he acted outside authority. Hlatshwayo, the Human Resources Manager testified that consequence management against Matai will follow for issuing the letter. Delegation of authority was explained which lies with the Principal of the College. Where there was no authority to perform an administrative action, such action is unlawful and invalid.

49. The Applicant challenges the termination of the 2022 employment contract. However, this contract was communicated to her in November 2021 and despite her having received a confirmation of employment in October 2021, she has never challenged the respondent that she could not be given a temporary employment contract in the light of the fact that she was already permanent in October 2021. The only reason why she could not question the temporary employment contract was because she was aware that she was not permanent.

50. The Applicant’s contention that the letter she received in October 2020 did not have timeframe for the submission of her proof of permanent residence and her identity document. The letter was from the DDG informing her that her employment contract will be amended from temporary to permanent provided that she provides proof of permanent residence and the identity document. If she was already permanent, why would the DDG write her this letter. This is further proof that she was not permanent.

51. All the contracts she submitted clearly show the start and end date of her employment. Where the full employment contract is not in place, there would be an appointment letter showing start and end date as well. The Applicant failed to establish the existence of dismissal. Hence her dispute stands to be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

52. Section 192(1) of the Labour Relation Act 66 of 1995 as amended, provides that in any dismissal proceedings the employee bears the onus to establish existence of dismissal.

53. The applicant contends that she was unfairly dismissed because she was not provided with reasons for dismissal and that she was not provided timeline within which to submit the requirements that would made her permanent. In addition, she contends that she was denied extended time to submit the required documents. The dismissal is procedurally unfair because she was not consulted before her contract was termination.

54. The respondent denies that the applicant was dismissed. It contends that her fixed contract of employment came to an end on 31 December 2022.The letter that it had sent her on 28 October 2022 was a reminder that her contract was ending. It was not a dismissal letter. The letter read thus: -

“AMENDMENT OF EMPLOYMENT STATUS FROM CONTRACT TO PERMANENT
I have the pleasure of informing you that your current contract status will be amended to a permanent employment contract in line with the Labour Relations Act, 1996 as amended with effect from 1 July 2020. The amendment of your employment contract will not affect the salary or your current conditions of service. In line with the regulations related to the employment of foreign nationals, and in order for the Department to finalise your matter, you are required to provide us with the following documents:
(a) Proof of permanent residence
(b) lD document.”

55. It is not in dispute that the applicant started working for the respondent on a fixed term contract as a lecture PL1 on 27 January 2014. Further, that she continued working on fixed term contracts until the last one which came to an end on 31 December 2022.

56. It is further common cause that the applicant is a foreign national (Zimbabwean), Hence she does not have South African Identity document and South African permanent residency. It is not in dispute that it is a minimum requirement for foreign employees to submit South African Identity document and proof of permanent residency before absorbed permanently.

57. The applicant`s contention which I find to be disingenuous is that she was permanent from the inception of her employment in 2014 because the position she applied for was permanent. This aspect that she has been a permanent employee since 2014 was not placed as a disputed fact in the pre-arbitration minutes.

58. She did not submit the advertisement of the post as evidence. This could not have assisted her even if she did. She is not a credible witness due to inconsistencies in her testimony. It is not probable that she could not have qualified for a permanent position, by virtue of her nationality status with lack of the required documents. In addition, she signed for a fixed term contract when she started working with the respondent in 2014.

59. This is further supported by the respondent’s unchallenged testimony that when the lectures employed by Tvet Colleges were migrated to the respondent during 2015, she did not qualify to be absorbed permanently for want of minimum requirements.

60. The applicant further premised her contention that she was permanently employed as the last contract was in 2015. It is not in dispute that she had been given appointment letters which specified the period of employment, which she had been accepting.

61. It is not probable that the applicant with the alleged knowledge that she was permanent in 2014 would continue to sign further fixed term contracts until 2015 and acknowledged the terms and conditions of a fixed term contract by continuing to work on the appointment letters which dictated some. Her contention is utter fallacy.

62. When she received a letter “amendment of employment status from the contract to permanent” on 28 October 2020, she did not query why she was being made permanent in 2020, despite having been permanent all these years since 2014.

63. I am persuaded that the Applicant was employed on a temporary basis from January 2014 to October 2020, when she was provided with a letter of the respondent’s intention to transfer her temporary status to permanently on condition that she submits South African Identity Document and proof of permanent residency. The absence of fixed term contracts from 2014 and 2021 is immaterial and does not make her permanent. She accepted the appointment letters which were issued to her during this period.

64. The applicant was required in October 2020 to provide the following: -
(a) Proof of permanent residency; and
(b) ID document.

65. It is common cause that she did not only fail to submit these documents at any stage until she parted ways with the Respondent on 31 December 2023, but at time of closing this arbitration, she had not obtained the documents.

66. It follows that when she was provided with a temporary appointment in 2021, which would end on 31 December 2022, she was a fixed term contract employee as she could not have been absorbed permanently for lack of the required documents.

67. The Applicant is not honest to suggest that she was shocked when she received a letter terminating her temporary appointment. She was always aware that she was not permanent unless she met the criteria. Her fixed term contract came to an end on 31 December in terms of the appointment letter she had received in 2021.

68. The fixed term contract was not terminated as it appears on the face of it and as the parties agreed in their pre-arb minutes. However, the contract expired (ran its natural cause). Termination occurs when the contract is ended prematurely whilst still running its cause. She failed to meet the criteria for permanent absorption. It was her responsibility to comply, not the respondent. I cannot fault the respondent in this regard.

69. The fact that she is still not in possession of the requirements for three years from October 2020 to October 2023, negates a need for the timeline she claims to have been deprived of. To put it differently, timeline could have been in vain if granted.

70. The respondent provided possible explanation why the fixed contract posts were converted to permanently and advertised as such, which was to comply with the aligned structure. The existence of the aligned structure is not challenged. The respondent`s testimony that had she submitted the required documents before Posts were advertised, she could have been absorbed is not in dispute.

71. There was no consultation required when the fixed term contract came to an end. It is not in dispute that there were meetings with HR and the principal wherein the issue was clarified in terms of the “termination letter”. Her dissatisfaction with the outcome of the meetings does not constitute dismissal.
72. The reason for parting ways with the applicant was provided for in the “termination letter” which is read thus ``This letter serves as a reminder that your temporarily appointed at the college will be coming to an end on 31 December 2022``. The applicant’s contention that the reason was not provided is a fallacy. The reason was that the fixed term contract that she was always aware of came to an end.

73. The applicant produced a letter from a clerk which states that she was permanent. She knew that she was not permanent and the clerk lacks authority to change her status. The respondent `s testimony that it was only the principal of college with delegated authority who can sign such letter was not challenged. Therefore, I agree with the respondent that reliance of the letter by the applicant is tantamount to a fishing expedition.

74. I am persuaded by the overwhelming evidence that the applicant was never a permanent employee for lack of the ID and proof of permanent residency. She was always a temporary employee on a fixed term contracts of which the last one ended on 31 December 2022. Her post was advertised on a permanent basis as she did not qualify to be absorbed as such. It was also compelling for the respondent to convert the post to permanent.

75. The applicant proved herself that she was not a credible and reliable witness due to her inconsistent and dishonest testimony to suite her situation. Her version of events was improbable. It is for this reason I am inclined to reject her version. The applicant has therefore, failed to prove on the balance of probabilities that she was employed permanently and that the ending of the fixed term contract on 31 December 2022 constitutes dismissal.

AWARD

76. The applicant was not dismissed but her fixed term contract of employment came to an end.

77. The applicant’s claim of unfair dismissal is hereby dismissed.

Signed and dated at Pretoria on this 03 day of November 2023


M.G Rabyanyana

ELRC Panellist