ELRC428-23/24LP

ARBITRATION
AWARD


Panellist/s: Seretse Masete
Case No.: ELRC 428-23/24LP
Date of Award: 21/12/2023


In the ARBITRATION between:

Beauty Maluleke

(Union / Applicant)

and
Department of Education: Limpopo

(Respondent)

Union/Applicant’s representative: Foster Mathebula from Sibuyi Attorneys

Respondent’s representative: Mokgadi Portia Modipa


Particulars of proceedings and representation

1. The matter was held on 12 December 2023 at the employer’s premises in Polokwane.

2. The Applicant, Beauty Maluleke (employee) was represented by Foster Mathebula, an attorney from Sibuyi Attorneys while the respondent, Department of Education Limpopo, (employer), was represented by Mokgadi Portia Modipa.

3. The proceedings were in English and digitally voice recorded.

Issues to be decided

4. Whether or not the dismissal of the employee was both substantively and procedurally unfair.

5. I further have to determine an appropriate remedy in terms of section 193 and 194 of the Labour Relations Act 66 of 1995 as amended (the “Act”) should I find that the dismissal of the employee was not fair.

Background to the dispute

6. The employee was employed on 11 May 2021 as an educator at Ehleketani Primary school earning R19,300-00 per month at the time of the dispute.

7. The employer terminated her contract on 30 April 2023, with notice and it is alleged that it was unfair because it had not reached its maturity date and the reasons provided were not valid.

8. She challenged both the procedural and substantive fairness of her contract termination and sought payment of the remainder of the contractual term, i.e 30 April to 31 December 2023.

9. The employer confirmed the termination and added that it was for a fair reason as she was issued with a notice as well as the reasons thereof. Evidence would be presented to corroborate the fairness of the termination. There will therefore be no payment as there was no contractual period remaining.

10. The employer called one witness and submitted one bundle of documents marked A and the employee testified as a sole witness and submitted no bundle of documents.

Survey of evidence and arguments
The Employees’ version
The employee, Beauty Maluleke, testified as a sole witness under oath as follows;

11. She signed the contract of employment with the employer on 06 February 2023 which was to end on 31 December 2023. Her contract was terminated through a letter where it was stated that her BA international Relations was not suitable for Basic education. She did not agree with the employer because she had a Post Graduate Certificate in education (PGCE) with History as a teaching subject. Her BA international relations also had History as a teaching subject. She maintained that no one could be allowed to do PGCE without a teaching subject. It was put to her that paragraph 11 of her contract provided that any error detected later will be accordingly rectified, meaning that the renewal of her contract was made erroneously. She Responded by arguing that the termination was selective because there were other educators for instance at Chabane high School with non-teaching degrees plus PGCE qualifications, but they were still employed by the Department (employer). There were no allegations of misconduct against her but her contract was terminated.

The employer’s evidence and arguments
1st witness, Sam Nyiko Sono (Sono), testified under oath as follows;

12. He was an acting deputy director corporate services. He was familiar with the termination letter on page 32 of bundle A. In 2023, the employer delayed in terms of renewing or terminating contract educators in order to finalise the R and R process before. They then started checking the contract of the temporary educators. PGCE was a method of teaching and should talk to the subjects contained in the degree or diploma. It was the employer which captured incorrect data on the system in terms of qualifications. They then started cleansing the system and since then the education of the learners have improved. All those who did not qualify were terminated like there was one with Municipality qualification who was also terminated. Teaching qualifications must include a diploma in Education or a degree with education subjects. If one did BSC as example, they must specialise in science and maths as well. Teaching Practice is not History but a training on how to teach which includes criticism lessons. International relations degrees are not teaching qualifications.

13. A notice of thirty days was given to the employee and she was not a qualified teacher and therefore the termination was fair and the department owed her nothing. It was put to him that paragraph 11 on page 22 of bundle A, was not clear and it was ambiguous. He answered that it depended on the one interpreting it. Employer was the one which made a mistake, but it was its responsibility to correct what was wrong. It was put to him that by renewing the contract, created a legitimate expectation. He agreed and added that the employer should do the vetting before the appointments. It was further put to him that the termination equaled dismissal. He disagreed. It was put to him that the thirty days’ notice did not erase the fact that it was unfair. He answered that the thirty days’ notice was also covered by the law. He denied that the employer was selective in applying the law. He did not agree with the assumptions that the employee might have declined offers due to the legitimate expectation. He denied that the employee was prejudiced by the termination. Termination was the best option and not retrenchment. He was asked why they did not put a clause to indicate that the contract could be terminated prematurely in the contract of employment. He said that it was because they thought what they did was sufficient.

Analysis of the evidence and arguments


14. The employer argued that in 2023, the department delayed in terms of renewing or terminating contract educators in order to finalise the R and R process. It further argued that the employee did not have a teaching subject in her PGCE qualifications as well as in her BA degree. It continued to argue that it has terminated all the educators with a non-teaching degrees and or qualifications. The employer when making the opening, argued that the employee was not dismissed. On the other side, the employee argued that her degree had a teaching subject and that it was not allowed to do a PGCE qualification without a teaching subject. She continued to argue that paragraph 11 quoted by the employer was ambiguous and applied selectively since there were some educators e.g. at Chabane high School who also had non-teaching degrees and or qualifications but they were still working.

15. My analyses on the matter is that, since the employer during its leading of evidence confirmed that the employee’s contract was terminated with notice, and the termination was done before the end of the employee’s fixed term contract, it was a dismissal in terms of s186 (a) of the Act. In a dismissal dispute, the employer bears the onus of proving that the employee was dismissed for a fair reason, see s192 (2) of the Act. The employer’s witness (Sono) never testified that they did not know before 6 February 2023 that the employee did not have necessary teaching qualifications. He actually testified that they started late to renew the contracts of the fixed term contract educators. He further testified that the delay was prompted by the fact that they wanted to finalise the Redeployment and Rationalisation (R and R) process. He also testified that there were some educators with non-teaching qualifications whose contracts were terminated for the same reason. Sono’s statement, that after terminating most of the educators without a teaching qualifications, the standard of performance by learners improved, corroborated the position that the employer knew well before February 2023 that the employee did not have a teaching qualification. The inference here is that, the employer renewed the employee’s contract knowing that she did not have a teaching qualifications. This therefore exonerated her contract to be terminated on the basis that she did not have a teaching qualifications because the employer renewed it knowing that she did not qualify.

16. The witness, Sono, further acknowledged that it is the responsibility of the employer to vet the candidates before appointing them but he never said the employee was not vetted. My take is that the employee was vetted and the employer continued appointing her after the process of vetting. He further confirmed that the conduct of the employer created a legitimate expectation. There was a similar principle in Rosy Kididimetse Seokwane vs Bidvest Prestige Cleaning Services Case no JS 1040/20. In that case, the employee reached a retirement age in terms of the policies of the company. The company then renewed her contract but later terminated it citing that she had reached a retirement age. By the time the company renewed her contract, she was already above the retirement age. The court ruled in favour of the employee citing that the policy did not affect her because by the time her contract was renewed, she already reached a retirement age. Although in casu, the termination was based on the absence of the teaching qualifications, the principle in terms of the timing for the renewal, the reasons advanced by the court and the termination of the contract is similar. The employee’s contract in casu, was renewed after the employer had already started terminating the employees with non-teaching qualifications. The employer’s witness, Sono, quoted an example of one fixed term educator with municipal qualifications who was among those who were terminated, but there was no document to corroborate that version at all. Although the employee did not produce any corroborating evidence as well, that there were other educators who were still working despite their lack of teaching qualifications, the employer should have proved her wrong because the onus was with it to do so.

17. As a commissioner, I do not have the competency of assessing and evaluating qualifications as there are institutions like South African Qualification Authority (SAQA) whose competence is to evaluate and or assess qualifications. The employer was just arguing that the employee’s qualifications were not suitable without producing any evidence to corroborate its version. This, by no means is intended to imply that the employee’s qualifications were suitable for teaching. My job is to assess if the termination of the employee’s contract was fair or not, based on the evidence produced. The issue of whether the employee’s qualifications were suitable or not suitable for teaching, needed documentary evidence either from HR or even from relevant institutions like SAQA. The employer further confirmed that the employee’s contract was not terminated because of any misconduct committed by her. My finding is that, on the balance of probabilities, the termination of the employee’s contract with notice before its maturity, equaled an unfair dismissal in terms of s186 (1)(a) of the Act. The employee prayed for the payment of the remainder of the contract period (not reinstatement). In terms of remedies, s194 of the Act, limits of compensation, a commissioner may order payment between zero and up to a maximum of twelve months. The relief requested by the employee fall within the limits of twelve months’ compensation. I therefore grant the employee a compensation equivalent to eight (8) months’ compensation. In awarding this compensation, I considered that the employee was not employed at the time of the arbitration. I also considered the fact that the employee did not seek to be reinstated. I further considered s194 (1) of the Act which provides that a compensation awarded to an employee whose dismissal was found to be unfair either because the employer failed to prove that the reason for the dismissal was for a fair reason or the employer did not follow a fair procedure, should be just and equitable in all circumstances but may not be more than 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of the dismissal (paraphrased).

Award

18. The termination of the employee’s contract by the employer was substantively unfair. (no evidence was led on the procedural unfairness).

19. The employer is ordered to pay the employee an amount of R154,400-00, which is equivalent to eight months’ salary of the employee.

20. The money in paragraph 19 above must be paid to the employee on or before 22 February 2024, failing which interest obtaining then shall accrue.


21. No order as to cost.


Seretse Masete Date 21/12/2023
ELRC Panellist