PSES 127-19/20WC
PSES 127-19/20WC
Award Date:
11 February 2021
Case Number: PSES 127-19/20WC
Province: Western Cape
Applicant: Rautenbach
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual
Award Date: 11 February 2021
Arbitrator: A.Singh-Bhoopchand
Case No PSES 127-19/20WC
In the matter between
Rautenbach Applicant
And
Department of Education -Western Cape Respondent
ARBITRATOR: A.Singh-Bhoopchand
HEARD: 25 November 2020; 25 January 2021
DATE OF AWARD: 11 February 2021
DETAILS OF HEARING AND REPRESENTATION
1. This matter concerning an alleged unfair dismissal was heard on 25 November 2020 and 25 January 2021 on the Zoom virtual video conferencing platform. The applicant represented herself. The respondent was represented by Mr Clayton Vorster a representative from the Employee Relations Directorate of the respondent.
2. Two bundles of documents were handed as evidence.
3. The parties submitted their closing arguments in writing, the last of which was received on 2 February 2021.
ISSUE IN DISPUTE
4. I must decide whether or not the applicant was unfairly dismissed.
BACKGROUND
5. The applicant was employed in successive contract positions as a dance teacher at the Hermanus Primary and High Schools from January 2015. Her services were terminated on 31 March 2020. It is common cause that all dance educators, including the applicant received correspondence during November/December of the previous year confirming their post allocation for the following year. It is also common because that the applicant turned 65 years of age in 2018 and that her continued appointment was recommended by the Senior Curriculum Planner.
6. As was the practice, the applicant received correspondence during November/December 2019 confirming her allocation to the Hermanus Primary and High School, commencing in January 2020. It was the practice that the applicant worked the entire year. Respondent however disputes that he appointment was for the entire year and submits that the applicant was appointed quarterly.
7. On 27 February 2020, the applicant received correspondence from the respondent stating that as she had reached the age of retirement, her contract world terminate on 31 March 2020. It is the respondent’s case that it was an oversight on their part that the applicant continued to be employed despite her having attained the age of retirement. Once the error / oversight was identified, the Department was obliged to terminate in order comply with the relevant prescripts.
SUMMARY OF EVIDENCE
I provide only a brief summary of the evidence in the interests of brevity. However, all evidence has been considered. I do not summarise the argument as they form part of the written record.
Applicants Case
8. The applicant Marina Rautenbach testified that as from January 2015, the standard practice was that she would receive a questionnaire towards the end of the preceding year which she was required to complete and submit. One of the questions was: “do you plan to retire?” She always indicated that she did not plan to retire. She would then receive the standard letter confirming her allocation to the Hermanus Primary and High Schools for the next year. No other letter of appointment for any lesser period was received. Based on the standard “letter of allocation” she would work the entire year. This standard process continued until November /December 2019. She expected as was the practice, to work during 2020 as did the school principal and the parents of the learners that enrolled for the dance programme.
9. In January 2020, she discovered that she was short paid. She contacted the respondent’s salary department to enquire about this and to ask them to correct her salary. Instead of correcting her salary, she was sent someone else’s pay slip. There were also several historic inconsistencies in her salary which she also enquired about. Her salary during most of 2019 was R10954, 00. Soon thereafter, she was shocked and disappointed when she was informed on 27 February 2020 that her contract would terminate on 31 March 2020 because she was over 65 of age. The school principal was furious as he was left without a teacher after having planned his timetable for the entire year. The parents and learners were also very disappointed. She believes that the sudden termination of her contract is linked to her enquiry about her salary. She had turned 65 two years prior and the department continued to employ her.
10. She also testified that she had invested her own money in building a dance studio which served as an appropriate venue for the dance learners. Her life was planned around the expectation that she would continue to teach until agreed otherwise. The sudden termination of her employment has caused her great stress and hardship.
Respondent’s Case
11. Three witnesses testified, namely Anniina Lundi, a Senior Curriculum Planner in the department; Harry Wyngaard the deputy director for Recruitment and Selection and Rodney Florris a Human Resource officer within the department.
12. Annina Lundi; She manages a basket of posts including dance posts. She confirmed the applicant’s evidence relating to the process followed for her appointment. However, she said that the letter confirming the applicant’s allocation to the school was not an appointment letter. She went on to say that with contract teachers, they do not indicate an end date. The applicant’s post has since been filled by an available and suitably qualified teacher.
13. During cross examination she testified that the questionnaire that was sent out every year was merely a survey that is sent out to all schools with dance teachers. In terms of the prescripts, if an educator wishes to continue to work after the age of 65, he/she may be allowed to work only if a qualified teacher is not available. In such an event, application will have to be made to the department for the educator over 65 and this application must be accompanied by a motivation.
14. It was made clear to the educators during meetings that they would have to retire once they reach the age of 65. However, the applicant did not attend those meetings.
15. Harry Wyngaard: He testified that the applicant had been nominated for the post but that she had not been appointment. However, her nomination had been approved. Shortly thereafter it was picked up that she had reached the age of 65. The department policy is clear that an educator that has reached the age of 65 cannot be appointed without proof that no other qualified educator is available. Applicant’s services had to be terminated but she was paid until the end of June because she had already been nominated.
16. Rodney Florris: He testified that it is compulsory for educators to retire after they reach the age of 65. When it comes to contract employees, their details are checked manually. If a person is over the age of 65, they cannot be appointed unless certain specific criteria are met. It was an oversight that it was not picked up earlier that the applicant had reached the age of 65.
ANALYSIS
17. Dismissal is defined in section 186(1)(b) as follows:
“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.
The concept and interpretation of “reasonable expectation” is neatly set out in the decision of Direks v University of South Africa . The court held:
“That an evaluation of all the surrounding circumstances, including the “significance or otherwise of the contractual stipulations, agreements and undertakings by the employer, or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose or reason for the concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice and the nature of the employer’s business are all criteria that must be included in the evaluation.”
18. The respondent’s argument with regard to the terms of the applicant’s terms of employment is somewhat contradictory and difficult to follow. On the one hand it is not disputed that the applicant was employed on a fixed term contract. In the same breath, respondent argues that the letter sent to the applicant during November/December of each year since 2015 was not an appointment letter but that it was merely an “allocation letter” for the purposes of timetabling. Yet the Respondent failed to produce any other document which could be construed to have been the appointment letter. I must therefore accept that the letter that the applicant received every year since 2015 formed the basis of the fixed term contract between the parties. Although there is no express mention of an end date, it is clear from the content of the letter that she was expected to work for the entire year. This conclusion is bolstered by the fact that it was the established practice , in conjunction with the Senior Curriculum advisor , that the applicant would be invited to complete an application, each year since 2015 during November/December of a preceding year, and that she would then receive a letter confirming her appointment from January of the following year. Put simply, the receipt of this letter secured her commitment to work for the entire year and the Respondent’s commitment to employ her for the entire year.
19. This then is not a dismissal in terms of section 186 (b), but it is a termination of a fixed term contract.
20. The applicant was given one month’s notice that her employment would terminate on 31 March 2020. This after effectively contracting her services for the full year. The Employment of Educators Act provides that the retirement age for Educators is age 65. Despite this, the Respondent continued to employ the applicant well after the age of 65. It is plausible that this was indeed an oversight on the part of the respondent. Based on the provision, and based on current case law, the employer would be entitled to retire the employee at any stage after passing that age. However, in fairness to the employee, the employer should first consult with the employee about the proposed decision to retire him/her. The employee should have the chance to make representations before simply being given notice of his or her retirement. In addition, the notice provided should be reasonable in the circumstances.
21. Our courts have developed different approaches towards terminating the employment of employees who continue working beyond the agreed or normal retirement age. In circumstances such as this one where the employee was invited to continue working with no mention by either party of the retirement age being reached, the Labour Court held in Botha v Du Toit Very and Partners CC that although the employer was entitled to retire the employee after reaching the agreed or normal date of retirement age, merely giving him one month’s notice was unfair. The employer should have consulted with the employee and attempted to reach agreement on the date of retirement to avoid “surprise and indignation”.
22. The effect that the sudden termination had on the applicant was more than just surprise. It was evident from her demeanour throughout this process and from the substance of her testimony that the sudden termination has had a devasting impact on her life. Her dismissal was unfair.
23. In deciding on the amount of compensation to be awarded, I have taken into account the fact that the respondent has been disingenuous in trying to argue that the applicant was employed quarterly. There is no evidence of this. On the contrary, the evidence is clear that she was employed on contract annually for five successive years. Furthermore, the applicant was specifically asked in the forms that she completed whether she intended to retire and she had indicated that she did not intend to retire. This, in my view is a tacit agreement for the applicant to work beyond the age of retirement.
24. I do not share the applicant’s view that it was her enquiry about the short payment of her salary that led the respondent to terminate her contract. It appears to have been a coincidence that the oversight about her age was discovered at the same time. Respondent was negligent in not having been alive to the applicant’s age. This came at great cost to the applicant.
25. I deem it just and equitable to award compensation in the equivalent of the balance of the duration of the contract. Her contract would have ended in December 2020 which brings the balance of the duration of her contract to nine months.
On the conspectus of the evidence before me, I make the following award:
AWARD
1. The dismissal of the Applicant, Marina Rautenbach, was unfair.
2. The Respondent is ordered to compensate the applicant in the amount being the equivalent of nine months salary, I calculate this to be the amount of R98 586 (R10954, 00 x 9), subject to statutory deductions.
3. This amount must be paid to the applicant within 14 days of service of this award.
4. I make no order as to costs.
A.Singh-Bhoopchand
Arbitrator
Province: Western Cape
Applicant: Rautenbach
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: Virtual
Award Date: 11 February 2021
Arbitrator: A.Singh-Bhoopchand
Case No PSES 127-19/20WC
In the matter between
Rautenbach Applicant
And
Department of Education -Western Cape Respondent
ARBITRATOR: A.Singh-Bhoopchand
HEARD: 25 November 2020; 25 January 2021
DATE OF AWARD: 11 February 2021
DETAILS OF HEARING AND REPRESENTATION
1. This matter concerning an alleged unfair dismissal was heard on 25 November 2020 and 25 January 2021 on the Zoom virtual video conferencing platform. The applicant represented herself. The respondent was represented by Mr Clayton Vorster a representative from the Employee Relations Directorate of the respondent.
2. Two bundles of documents were handed as evidence.
3. The parties submitted their closing arguments in writing, the last of which was received on 2 February 2021.
ISSUE IN DISPUTE
4. I must decide whether or not the applicant was unfairly dismissed.
BACKGROUND
5. The applicant was employed in successive contract positions as a dance teacher at the Hermanus Primary and High Schools from January 2015. Her services were terminated on 31 March 2020. It is common cause that all dance educators, including the applicant received correspondence during November/December of the previous year confirming their post allocation for the following year. It is also common because that the applicant turned 65 years of age in 2018 and that her continued appointment was recommended by the Senior Curriculum Planner.
6. As was the practice, the applicant received correspondence during November/December 2019 confirming her allocation to the Hermanus Primary and High School, commencing in January 2020. It was the practice that the applicant worked the entire year. Respondent however disputes that he appointment was for the entire year and submits that the applicant was appointed quarterly.
7. On 27 February 2020, the applicant received correspondence from the respondent stating that as she had reached the age of retirement, her contract world terminate on 31 March 2020. It is the respondent’s case that it was an oversight on their part that the applicant continued to be employed despite her having attained the age of retirement. Once the error / oversight was identified, the Department was obliged to terminate in order comply with the relevant prescripts.
SUMMARY OF EVIDENCE
I provide only a brief summary of the evidence in the interests of brevity. However, all evidence has been considered. I do not summarise the argument as they form part of the written record.
Applicants Case
8. The applicant Marina Rautenbach testified that as from January 2015, the standard practice was that she would receive a questionnaire towards the end of the preceding year which she was required to complete and submit. One of the questions was: “do you plan to retire?” She always indicated that she did not plan to retire. She would then receive the standard letter confirming her allocation to the Hermanus Primary and High Schools for the next year. No other letter of appointment for any lesser period was received. Based on the standard “letter of allocation” she would work the entire year. This standard process continued until November /December 2019. She expected as was the practice, to work during 2020 as did the school principal and the parents of the learners that enrolled for the dance programme.
9. In January 2020, she discovered that she was short paid. She contacted the respondent’s salary department to enquire about this and to ask them to correct her salary. Instead of correcting her salary, she was sent someone else’s pay slip. There were also several historic inconsistencies in her salary which she also enquired about. Her salary during most of 2019 was R10954, 00. Soon thereafter, she was shocked and disappointed when she was informed on 27 February 2020 that her contract would terminate on 31 March 2020 because she was over 65 of age. The school principal was furious as he was left without a teacher after having planned his timetable for the entire year. The parents and learners were also very disappointed. She believes that the sudden termination of her contract is linked to her enquiry about her salary. She had turned 65 two years prior and the department continued to employ her.
10. She also testified that she had invested her own money in building a dance studio which served as an appropriate venue for the dance learners. Her life was planned around the expectation that she would continue to teach until agreed otherwise. The sudden termination of her employment has caused her great stress and hardship.
Respondent’s Case
11. Three witnesses testified, namely Anniina Lundi, a Senior Curriculum Planner in the department; Harry Wyngaard the deputy director for Recruitment and Selection and Rodney Florris a Human Resource officer within the department.
12. Annina Lundi; She manages a basket of posts including dance posts. She confirmed the applicant’s evidence relating to the process followed for her appointment. However, she said that the letter confirming the applicant’s allocation to the school was not an appointment letter. She went on to say that with contract teachers, they do not indicate an end date. The applicant’s post has since been filled by an available and suitably qualified teacher.
13. During cross examination she testified that the questionnaire that was sent out every year was merely a survey that is sent out to all schools with dance teachers. In terms of the prescripts, if an educator wishes to continue to work after the age of 65, he/she may be allowed to work only if a qualified teacher is not available. In such an event, application will have to be made to the department for the educator over 65 and this application must be accompanied by a motivation.
14. It was made clear to the educators during meetings that they would have to retire once they reach the age of 65. However, the applicant did not attend those meetings.
15. Harry Wyngaard: He testified that the applicant had been nominated for the post but that she had not been appointment. However, her nomination had been approved. Shortly thereafter it was picked up that she had reached the age of 65. The department policy is clear that an educator that has reached the age of 65 cannot be appointed without proof that no other qualified educator is available. Applicant’s services had to be terminated but she was paid until the end of June because she had already been nominated.
16. Rodney Florris: He testified that it is compulsory for educators to retire after they reach the age of 65. When it comes to contract employees, their details are checked manually. If a person is over the age of 65, they cannot be appointed unless certain specific criteria are met. It was an oversight that it was not picked up earlier that the applicant had reached the age of 65.
ANALYSIS
17. Dismissal is defined in section 186(1)(b) as follows:
“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.
The concept and interpretation of “reasonable expectation” is neatly set out in the decision of Direks v University of South Africa . The court held:
“That an evaluation of all the surrounding circumstances, including the “significance or otherwise of the contractual stipulations, agreements and undertakings by the employer, or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose or reason for the concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice and the nature of the employer’s business are all criteria that must be included in the evaluation.”
18. The respondent’s argument with regard to the terms of the applicant’s terms of employment is somewhat contradictory and difficult to follow. On the one hand it is not disputed that the applicant was employed on a fixed term contract. In the same breath, respondent argues that the letter sent to the applicant during November/December of each year since 2015 was not an appointment letter but that it was merely an “allocation letter” for the purposes of timetabling. Yet the Respondent failed to produce any other document which could be construed to have been the appointment letter. I must therefore accept that the letter that the applicant received every year since 2015 formed the basis of the fixed term contract between the parties. Although there is no express mention of an end date, it is clear from the content of the letter that she was expected to work for the entire year. This conclusion is bolstered by the fact that it was the established practice , in conjunction with the Senior Curriculum advisor , that the applicant would be invited to complete an application, each year since 2015 during November/December of a preceding year, and that she would then receive a letter confirming her appointment from January of the following year. Put simply, the receipt of this letter secured her commitment to work for the entire year and the Respondent’s commitment to employ her for the entire year.
19. This then is not a dismissal in terms of section 186 (b), but it is a termination of a fixed term contract.
20. The applicant was given one month’s notice that her employment would terminate on 31 March 2020. This after effectively contracting her services for the full year. The Employment of Educators Act provides that the retirement age for Educators is age 65. Despite this, the Respondent continued to employ the applicant well after the age of 65. It is plausible that this was indeed an oversight on the part of the respondent. Based on the provision, and based on current case law, the employer would be entitled to retire the employee at any stage after passing that age. However, in fairness to the employee, the employer should first consult with the employee about the proposed decision to retire him/her. The employee should have the chance to make representations before simply being given notice of his or her retirement. In addition, the notice provided should be reasonable in the circumstances.
21. Our courts have developed different approaches towards terminating the employment of employees who continue working beyond the agreed or normal retirement age. In circumstances such as this one where the employee was invited to continue working with no mention by either party of the retirement age being reached, the Labour Court held in Botha v Du Toit Very and Partners CC that although the employer was entitled to retire the employee after reaching the agreed or normal date of retirement age, merely giving him one month’s notice was unfair. The employer should have consulted with the employee and attempted to reach agreement on the date of retirement to avoid “surprise and indignation”.
22. The effect that the sudden termination had on the applicant was more than just surprise. It was evident from her demeanour throughout this process and from the substance of her testimony that the sudden termination has had a devasting impact on her life. Her dismissal was unfair.
23. In deciding on the amount of compensation to be awarded, I have taken into account the fact that the respondent has been disingenuous in trying to argue that the applicant was employed quarterly. There is no evidence of this. On the contrary, the evidence is clear that she was employed on contract annually for five successive years. Furthermore, the applicant was specifically asked in the forms that she completed whether she intended to retire and she had indicated that she did not intend to retire. This, in my view is a tacit agreement for the applicant to work beyond the age of retirement.
24. I do not share the applicant’s view that it was her enquiry about the short payment of her salary that led the respondent to terminate her contract. It appears to have been a coincidence that the oversight about her age was discovered at the same time. Respondent was negligent in not having been alive to the applicant’s age. This came at great cost to the applicant.
25. I deem it just and equitable to award compensation in the equivalent of the balance of the duration of the contract. Her contract would have ended in December 2020 which brings the balance of the duration of her contract to nine months.
On the conspectus of the evidence before me, I make the following award:
AWARD
1. The dismissal of the Applicant, Marina Rautenbach, was unfair.
2. The Respondent is ordered to compensate the applicant in the amount being the equivalent of nine months salary, I calculate this to be the amount of R98 586 (R10954, 00 x 9), subject to statutory deductions.
3. This amount must be paid to the applicant within 14 days of service of this award.
4. I make no order as to costs.
A.Singh-Bhoopchand
Arbitrator