ELRC508-23/24WC

Commissioner: Jacques Buitendag
Case No.: ELRC508-23/24WC
Date of Award: 15 March 2024

In the Arbitration between:


R S SIMONS
(Union/Applicant)

and


WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)

 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 15 December 2023 and 26 February 2024 in Cape Town.

2. The applicant, Mr. R S Simons was represented by Mr. J De Wet of Brunson Attorneys. Ms. Petersen, a Labour Relations Officer represented the respondent, the Western Cape Education Department (WCED). The proceedings were digitally recorded.

3. At the conclusion of the arbitration the parties agreed to submit written heads of argument. The applicant filed his arguments on 4 March 2024. The respondent’s arguments were filed on 6 March 2024.

BACKGROUND TO THE ISSUE

4. The applicant was employed by the respondent as an educator on a fixed term contract from 1 October 2022 until 31 December 2022 at the Lavis Rylaan Primary School.

5. The applicant claims that during December 2022 he entered into a 12- month fixed term contract until December 2023. The respondent denies the applicant’s claim. The respondent claims that the applicant was employed on fixed term contract from 1 January 2023 – 31 March 2023, 1 April 2023 – 30 June 20-23 and from 1 July 2023 – 30 September 2023.

6. The applicant claims that he was unfairly dismissed by the respondent on 30 September 2023 and as relief the applicant prays to be compensated with an amount equal to the three months remuneration that he would have earned had he not been dismissed on 30 September 2023.

7. The respondent on the other hand claims that the applicant was not dismissed but that the employment contract expired on 30 September 2023.

THE ISSUE IN DISPUTE

8. From the onset it is important to note that the applicant claims that has entered into a fixed term contract with the respondent until December 2023 and was unfairly dismissed on 30 September 2023. The applicant’s claim thus falls within the ambit of section 186(1)(a) of the Labour Relations Act, 66 of 1995, as amended which provides that a “Dismissal means that - (a) an employer has terminated the employment with or without notice.”

9. The applicant does not claim, in terms of section 186(1)(b)(i) of LRA, that the dismissal
took place in circumstances where he was employed in terms of a fixed term contract of employment and reasonably expected the respondent to renew the fixed term contract of employment on the same or similar terms for the period 1 October 2023 – 31 December 2023 but the respondent did not renew it.

10. I must thus first determine whether the applicant was dismissed as alleged on 30 September 2023. If the applicant was dismissed, I must determine whether the dismissal was fair. If the dismissal was unfair, I must determine the appropriate relief.

SUMMARY OF EVIDENCE AND ARGUMENT

11. I have considered all the evidence and argument, but because section 138(7) of the Labour Relations Act, 66 of 1995 as amended (the LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence and argument that I regard as necessary to substantiate my findings in the determination of the dispute.

12. Because the onus is on the applicant to prove that he was dismissed, I have decided to hear his version first.

The applicant’s case
13. The applicant, Mr. R S Simon testified that during December 2022 he entered into a fixed term contract of employment with the respondent until December 2023. The principal, Ms. Timmet recommended his appointment to the respondent and he was appointed. The respondent has not communicated with him about the employment contract.

14. During August 2023 Ms. Timmet informed him in writing that his employment contract will not be renewed at the end of September 2023. The applicant responded to this letter by informing Ms. Timmet that the employment contract is until 31 December 2023 and that he expects the respondent to honour the contract.

15. The applicant contacted the respondent’s Client Service Division and was issued with a letter dated 28 September 2023 by a Ms. Wendy Jones which reads as follows:
To whom it may concern
This letter serves to confirm that Mr. Ronald Stephen Simons with identity number 6512095221089, is currently employed by the Western Cape Education Department as a Teacher on a contract capacity until 31 December 2023…”

16. The applicant explained that when he reported for duty in October 2023 he was informed that his contract expired.

17. On 10 October 2023 Ms. Jones issued the following letter:
“This letter serves to confirm that Mr. Ronald Stephen Simons with identity number 6512095221089, is currently employed by the Western Cape Education Department as a Teacher on a contract capacity from 1 October 2022 until 30 September 2023.
Attached please find the updated confirmation of employment letter, the school has notified the department of your contract of employment period…”

18. The applicant testified that he has not signed any application forms since December 2022 and that he received no communication on a quarterly basis during 2023 about a renewal of his contract. The applicant further avers that Persal printouts indicated that his employment contract was until 31 December 2023.

19. In closing argument the applicant referred to section 16 and 20 of the South African Schools Act 84 of 1996, section 3 and 6 of the Employment of Educators Act 76 of 1998 and clause 3 of the Personnel Administrative Measures (PAM) governing the appointment of educators and argued that any changes on the Persal system cannot be made on the behest of a principal of a school and that the nomination form that a principal completes is not a contract of employment. The applicant argued that he was dismissed unfairly and he seeks compensation as relief.

The respondent’s case
20. Ms. Timmet, the Principal of Lavis Rylaan Primary School testified that the applicant was notified during a meeting held 22 August 2023 that his contact will not be renewed for the 4th term and that the applicant did not objected to it. She referred to the minutes of the meeting to substantiate her version. Ms. Timmet thereafter issued the applicant with a letter dated 23 August 2023 that his contract will not be renewed.

21. She referred to nomination forms that was completed and send to the respondent requesting the appointment of the applicant for the periods 1 October 2022- 31 December 2022; 1 January 2023 – 31 March 2023; 1 April 2023 – 30 June 2023 and 1 July 2023 – 30 September 2023. These nominations are only rejected by the respondent if the educator is not suitably qualified. Ms. Timmet avers that she held meetings with the applicant per term and explained the duration of his contract of employment to him.


22. Both Ms. Matthee (an Educator and member of the School Governing Body Principal) and Ms. Gordon (the school’s Admin Clerk) testified that the applicant was informed during a meeting held on 22 August 2023 that his contract will not be renewed at the end of September 2023.

23. Ms. Gordon testified that the nomination forms were completed in the presence of the applicant on about 7 October 2022, 9 December 2022, 15 March 2022 and 19 June 2023 respectively and that the applicant was aware of the termination date of each nomination.

24. Ms. Tataw (the respondent’s Deputy Director: Service Benefits) explained that the nomination forms are uploaded electronically for approval by the Circuit Manager and Human Resources (HR). She deals with the appointment of educators and not the Client Service Division. She explained that the Persal system is programmatic and that incorrect information was initially provided by the Client Service Division, who had no authority to confirm employment, to the applicant. She confirmed that the applicant’s contract expired on 30 September 2023.

25. Mr. Bruce (the Client Service Manager) confirmed that Persal records are programmatic and is adjusted from time to time by HR. .

26. Ms. Jones (the Walk In Service Agent) confirmed that when she issued the1st letter to the applicant (referred to in par. 15 above) she used the information on the Persal system and did not have knowledge of the actual contractual period, hence the rectification letter was issued (as referred to in paragraph 17 above).

27. The respondent argued that the applicant was not dismissed but that his employment contract has expired on 30 September 2023.

ANALYSIS OF EVIDENCE AND ARGUMENT

28. Section 186(1)(a) of the LRA provides that a dismissal occurs when the employer has terminated a contract of employment with or without notice. If the employer denies that the employee is dismissed, section 192 of the LRA provides that the employee bears the onus to prove the existence of the dismissal on a balance of probabilities. Only when this onus is discharged does the onus shifts to the employer to prove on a balance of probabilities that the dismissal is fair.

29. The Labour Appeal Court (LAC) in ENFORCE SECURITY GROUP V FIKILE AND OTHERS 38 ILJ 1041 (LAC) held that the question whether there has been a dismissal goes to the jurisdiction of the CCMA (or Bargaining Council in this instance) and the Labour Court (LC) to entertain the parties’ dispute. A finding that there was no dismissal means that the CCMA / Bargaining Council and subsequently the LC did not have jurisdiction to entertain the dispute. Such a finding, as a matter of fact, has to be a correct finding. It cannot be a finding that falls within a band of reasonable findings since there can only be one correct finding.

30. The applicant avers that during December 2022 he entered into a fixed term contract for 12 months, ending in December 2023. The applicant could not produce this alleged contract or a nomination for appointment form to substantiate his claim.

31. In fact the nomination for appointment form that was signed by the secretary of the Governing Structure dated 12 December 2022 indicated the commencement of employment date as 1 January 2023 and the termination date being 31 March 2023 and not as 31 December 2023 (which would have been the case if the applicant was indeed appointed until 31 December 2023 as he alleges).

32. This nomination for appointment form was followed by another nomination form dated 15 March 2023 indicating the employment period from 1 April 2023 and the termination date being 30 June 2023. The final nomination form dated 19 June 2023 shows the commencement date as 1 July 2023 and the termination date as 30 September 2023.

33. I have no reason to question the credibility of Ms. Gordon’s testimony and I accept her testimony that the nomination forms were completed in the presence of the applicant on about 7 October 2022, 9 December 2022, 15 March 2022 and 19 June 2023 and that the applicant was indeed aware of the termination date of each nomination. Ms. Timmet also testified that she informed the applicant on a quarterly basis of his employment period.

34. I have further no reason to reject the explanation of Ms. Tawtaw which was corroborated by Mr. Bruce that the Persal records are programmatic and is adjusted from time to time by HR.

35. I am persuaded by the abovementioned evidence that the initial letter issued by Ms. Jones to the applicant (as referred to par. 15) indeed contained the incorrect information and that the mistake was corrected in the letter referred to in paragraph 17 above.

36. I find that the applicant was employed on fixed term contracts of employment and that the final contract expired on 30 September 2023. The applicant’s claim that he was employed on a 12-month fixed term contract cannot be substantiated.

37. As I have explained in paragraphs 8-9 above it was not the applicant’s case that he reasonably expected that his fixed term contract would be renewed for the period 1 October 2023 – 31 December 2023.

AWARD
The applicant has failed to discharge the onus of proving that he was dismissed on 30 September 2023. The applicant’s fixed term contract of employment expired on this day. The application is dismissed.


ELRC Panellist: Jacques Buitendag