PSES 446-18/19 GP
PSES 446-18/19 GP
Award Date:
3 December 2019
Case Number: PSES 446-18/19 GP
Province: Gauteng
Applicant: Malwela,T.M
Respondent: Central Johannesburg TVET__College
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Central Johannesburg TVET College situated at no 5 Ubla Road, Parktown, Johannesburg.
Award Date: 3 December 2019
Arbitrator: THABE PHALANE
Panellist/s: THABE PHALANE
Case No.: PSES 446-18/19 GP
Date of Award: 03 December 2019
In the ARBITRATION between:
Malwela,T.M
(Union / Applicant)
and
Central Johannesburg TVET__College___
(Respondent)
Union/Applicant’s representative: In person/unrepresented
Telephone: 071 299 5522
Telefax:
Email: takalani.mollie@gmail.com
Respondent’s representative: Mr. R,Spandie’l-HRM&D
Telephone: 072 304 4723
Telefax:
Email: spandielr@cjc.edu.za
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on 11 November 2019 at Central Johannesburg TVET College situated at no 5 Ubla Road, Parktown, Johannesburg.
1.2 Both parties attended and the Applicant was unrepresented, whilst the Respondent was represented by Mr. R Spandie’l, the Respondent’s HRM&D representative.
1.3 The proceedings were digitally recorded and Mr A.H Matsenene provided the interpretation services.
1.4 The Respondent handed in a bundle of documents marked Bundle” A”, which is the Applicants contract of employment.
1.5 The parties also submitted oral argument at the end of proceedings.
1.6 The issue in dispute brought by the Applicant is the termination of the contract with or without notice.
B. ISSUE TO BE DECIDED
I am required to determine whether the Respondent unfairly terminated the Applicants contract, and consequent thereon, to issue the appropriate relief.
C. PRELIMINARY ISSUES
1.7 There was no preliminary issued which were raised.
D. BACKGROUND TO THE ISSUE
1.8 The Applicant was appointed on a fixed term contract of employment as a lecturer at the college from 01 March 2019 to 30 April 2019.
1.9 The contract was renewed from 01 May 2019 to 30 June 2019. The Respondent did not renew the contract after the expiry of the second fixed term contract.
1.10 The Applicant submitted that she was promised a 12 months contract because the course she was teaching has a duration of 12 months.
1.11 The Applicant wanted to be paid for the remaining month from July 2019 to December 2019.
1.12 The Respondent on the other hand submitted that there was no promise of a 12 months contract as all fixed term contracts are for a limited period of 2 months.
1.13 The number of students determine the number of appointments that can be made.
1.14 The Applicants contract lapsed at the expiry of the fixed term.
SURVEY OF EVIDENCE AND ARGUMENT
E. RESPONDENT’’S EVIDENCE AND ARGUMENTS
Mr Lucas Hosea Maotoe.
1.15 The witness is the Campus Manger at the Troyeville Campus.
1.16 He offered the Applicant work as a contract worker at the campus. She was reporting to him.
1.17 The college offered her a 2 months contract as they rely on the number of students and the vacancies available. Posts will be reconsidered depending on the circumstances.
1.18 The maximum contract they offer is for 3 months. They discussed the contract and the Applicant did not object to the 2 months contract that was offered to her. She was given the contract to read and understand.
1.19 The contracts are signed at the Central office by the Deputy Principal.
1.20 There was a strike during March 2019 to May 2019. There was no teaching or learning taking place at all the campuses and the Applicant was advised to stay at home because it would be difficult to pay her when she was not working.
1.21 The Applicant was advised to seek alternative work. Her contract came to an end at the end of June 2019
Under cross examination
1.22 The witness submitted that it was difficult to give the applicant notice because there was a strike. The Head Office was not operating.
1.23 He discussed the contract with the Applicant at the presence of Ms Hlahla, the HR personnel.
1.24 He is a curriculum person and always referred employment matters to HR.
1.25 The Applicant was aware that her contract was coming to an end as she previously came to him during the April recess when she was on the first contract.
1.26 The Applicant was not given any expectation of a renewal. Her contract had a start and an end date. There was no provision of an extension.
1.27 The classes had a capacity of 25 students. The examinations were postponed after the strike.
1.28 The Applicant was not replaced, and he could ask anyone of the lecturers to assist the students where the Applicant was previously teaching. It is his duty not to prejudice the students.
1.29 There were interviews at Langlaagte Campus. They wanted 10 lectures. He then went to Langlaagte and asked for the list of the people they interviewed and were not successful.
1.30 He then approached the applicant and told her that he wanted someone who could teach English.
1.31 He did not follow the interview process and told the Applicant that if she helped, he will later speak to the Deputy Principal who had the final say.
1.32 There were time constraints and it was difficult to go to the Central Office and look at all the CV’s they had on their database.
1.33 The Applicant said she still had to write the PGCE examinations and had 2 weeks to write. He told her that the students came first and there was nothing wrong with the Applicant.
1.34 They had the same discussions in April 2019 when he told the Applicant that she must stay at home until he spoke to HR.
F. APPLICANT’S EVIDENCE AND ARGUMENTS
Ms Takalani Mollie Malwela
1.35 The Applicant started working from 01 March 2019 as an English Lecturer.
1.36 She was earning a salary of R 15 000 per month. Her contract was terminated on 30 April 2019 and she was issued with a new contract that was to end on 30 June 2019.
1.37 Her contract was terminated without notice.
1.38 She was just told to go home. She had an expectation after the schools reopened that she will continue with her work.
1.39 She went to Central office to find out her status but was not assisted to have her contract renewed.
1.40 She was then advised to refer the matter to Council.
Under Cross examination
1.41 The Applicant she was called to the interviews for the position of English lecture at Langlaagte campus.
1.42 She submitted her CV at many campuses and not necessarily for the post of English lecture.
1.43 It was Langlaagte that called her for the interview for the English position.
1.44 The interviews were held on 22 February 2019 and she was called by Mr Maotoe on 27 February 2019.
1.45 No one from Langlaagte told her about the results of her interviews.
1.46 When she went to Troyeville Mr Maotoe told her how long the period of the contract was going to be.
1.47 She did not object to the contract because it came after 1 month. She was demanding to be paid and only signed because she needed her salary.
1.48 She did not object when she was given the contract extension for a further 2 months.
1.49 She admitted that there was no learning or teaching during the strike as she came to campus and the gates were locked.
1.50 She wanted notice because the Respondent created an expectation that her contract will be renewed.
1.51 Nothing was said to her during May and June and she assumed the contract will continue.
1.52 She admitted that Mr Maotoe told her to go to ELRC as there was nothing he could do to assist her.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.53 The parties presented evidence as well as oral submissions which I have also considered when arriving at these findings. I have also referred to relevant case law which is applicable to this matter.
1.54 In the matter Sindane v Prestige cleaning Services (2010) 31 ILJ 733 (LC) the Court held that a fixed term contract terminates by operation of law at the end of the contract and such termination did not constitute a dismissal.
1.55 In the matter IMATU and others v City of Johannesburg Metropolitan Municipality and others [2014] 6 BLLR 545 (LAC) the Court confirmed that the onus was on the employees to prove that they had a reasonable expectation that the contract would be renewed.
1.56 The Applicant had two successive fixed term contracts, which both had termination date and this was known to the Applicant.
1.57 There were however external circumstances of the strike and that created a duty on the Respondent to inform the Applicant of her status as there was no teaching or learning.
1.58 The failure by the Respondent to give the Applicant notice that the contract will not be renewed did not constitute a breach of the notice period because the Applicant was already aware that her contract was coming to an end.
1.59 The Applicant also failed to establish why she harboured an expectation that her contract would be renewed.
1.60 The Applicant has also conceded that she did not provide her services for the entire duration of the fixed term contract. She was therefore actually paid for services she did not provide, albeit not through her own making.
1.61 It is my finding therefore that the Applicant has failed to establish that her contract was terminated and that she was therefore dismissed.
G. AWARD.
1.62 The Applicant has failed to establish the existence of a dismissal.
1.63 The referral made by the Applicant is accordingly dismissed.
1.64 There is no order as to costs.
Province: Gauteng
Applicant: Malwela,T.M
Respondent: Central Johannesburg TVET__College
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Central Johannesburg TVET College situated at no 5 Ubla Road, Parktown, Johannesburg.
Award Date: 3 December 2019
Arbitrator: THABE PHALANE
Panellist/s: THABE PHALANE
Case No.: PSES 446-18/19 GP
Date of Award: 03 December 2019
In the ARBITRATION between:
Malwela,T.M
(Union / Applicant)
and
Central Johannesburg TVET__College___
(Respondent)
Union/Applicant’s representative: In person/unrepresented
Telephone: 071 299 5522
Telefax:
Email: takalani.mollie@gmail.com
Respondent’s representative: Mr. R,Spandie’l-HRM&D
Telephone: 072 304 4723
Telefax:
Email: spandielr@cjc.edu.za
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on 11 November 2019 at Central Johannesburg TVET College situated at no 5 Ubla Road, Parktown, Johannesburg.
1.2 Both parties attended and the Applicant was unrepresented, whilst the Respondent was represented by Mr. R Spandie’l, the Respondent’s HRM&D representative.
1.3 The proceedings were digitally recorded and Mr A.H Matsenene provided the interpretation services.
1.4 The Respondent handed in a bundle of documents marked Bundle” A”, which is the Applicants contract of employment.
1.5 The parties also submitted oral argument at the end of proceedings.
1.6 The issue in dispute brought by the Applicant is the termination of the contract with or without notice.
B. ISSUE TO BE DECIDED
I am required to determine whether the Respondent unfairly terminated the Applicants contract, and consequent thereon, to issue the appropriate relief.
C. PRELIMINARY ISSUES
1.7 There was no preliminary issued which were raised.
D. BACKGROUND TO THE ISSUE
1.8 The Applicant was appointed on a fixed term contract of employment as a lecturer at the college from 01 March 2019 to 30 April 2019.
1.9 The contract was renewed from 01 May 2019 to 30 June 2019. The Respondent did not renew the contract after the expiry of the second fixed term contract.
1.10 The Applicant submitted that she was promised a 12 months contract because the course she was teaching has a duration of 12 months.
1.11 The Applicant wanted to be paid for the remaining month from July 2019 to December 2019.
1.12 The Respondent on the other hand submitted that there was no promise of a 12 months contract as all fixed term contracts are for a limited period of 2 months.
1.13 The number of students determine the number of appointments that can be made.
1.14 The Applicants contract lapsed at the expiry of the fixed term.
SURVEY OF EVIDENCE AND ARGUMENT
E. RESPONDENT’’S EVIDENCE AND ARGUMENTS
Mr Lucas Hosea Maotoe.
1.15 The witness is the Campus Manger at the Troyeville Campus.
1.16 He offered the Applicant work as a contract worker at the campus. She was reporting to him.
1.17 The college offered her a 2 months contract as they rely on the number of students and the vacancies available. Posts will be reconsidered depending on the circumstances.
1.18 The maximum contract they offer is for 3 months. They discussed the contract and the Applicant did not object to the 2 months contract that was offered to her. She was given the contract to read and understand.
1.19 The contracts are signed at the Central office by the Deputy Principal.
1.20 There was a strike during March 2019 to May 2019. There was no teaching or learning taking place at all the campuses and the Applicant was advised to stay at home because it would be difficult to pay her when she was not working.
1.21 The Applicant was advised to seek alternative work. Her contract came to an end at the end of June 2019
Under cross examination
1.22 The witness submitted that it was difficult to give the applicant notice because there was a strike. The Head Office was not operating.
1.23 He discussed the contract with the Applicant at the presence of Ms Hlahla, the HR personnel.
1.24 He is a curriculum person and always referred employment matters to HR.
1.25 The Applicant was aware that her contract was coming to an end as she previously came to him during the April recess when she was on the first contract.
1.26 The Applicant was not given any expectation of a renewal. Her contract had a start and an end date. There was no provision of an extension.
1.27 The classes had a capacity of 25 students. The examinations were postponed after the strike.
1.28 The Applicant was not replaced, and he could ask anyone of the lecturers to assist the students where the Applicant was previously teaching. It is his duty not to prejudice the students.
1.29 There were interviews at Langlaagte Campus. They wanted 10 lectures. He then went to Langlaagte and asked for the list of the people they interviewed and were not successful.
1.30 He then approached the applicant and told her that he wanted someone who could teach English.
1.31 He did not follow the interview process and told the Applicant that if she helped, he will later speak to the Deputy Principal who had the final say.
1.32 There were time constraints and it was difficult to go to the Central Office and look at all the CV’s they had on their database.
1.33 The Applicant said she still had to write the PGCE examinations and had 2 weeks to write. He told her that the students came first and there was nothing wrong with the Applicant.
1.34 They had the same discussions in April 2019 when he told the Applicant that she must stay at home until he spoke to HR.
F. APPLICANT’S EVIDENCE AND ARGUMENTS
Ms Takalani Mollie Malwela
1.35 The Applicant started working from 01 March 2019 as an English Lecturer.
1.36 She was earning a salary of R 15 000 per month. Her contract was terminated on 30 April 2019 and she was issued with a new contract that was to end on 30 June 2019.
1.37 Her contract was terminated without notice.
1.38 She was just told to go home. She had an expectation after the schools reopened that she will continue with her work.
1.39 She went to Central office to find out her status but was not assisted to have her contract renewed.
1.40 She was then advised to refer the matter to Council.
Under Cross examination
1.41 The Applicant she was called to the interviews for the position of English lecture at Langlaagte campus.
1.42 She submitted her CV at many campuses and not necessarily for the post of English lecture.
1.43 It was Langlaagte that called her for the interview for the English position.
1.44 The interviews were held on 22 February 2019 and she was called by Mr Maotoe on 27 February 2019.
1.45 No one from Langlaagte told her about the results of her interviews.
1.46 When she went to Troyeville Mr Maotoe told her how long the period of the contract was going to be.
1.47 She did not object to the contract because it came after 1 month. She was demanding to be paid and only signed because she needed her salary.
1.48 She did not object when she was given the contract extension for a further 2 months.
1.49 She admitted that there was no learning or teaching during the strike as she came to campus and the gates were locked.
1.50 She wanted notice because the Respondent created an expectation that her contract will be renewed.
1.51 Nothing was said to her during May and June and she assumed the contract will continue.
1.52 She admitted that Mr Maotoe told her to go to ELRC as there was nothing he could do to assist her.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.53 The parties presented evidence as well as oral submissions which I have also considered when arriving at these findings. I have also referred to relevant case law which is applicable to this matter.
1.54 In the matter Sindane v Prestige cleaning Services (2010) 31 ILJ 733 (LC) the Court held that a fixed term contract terminates by operation of law at the end of the contract and such termination did not constitute a dismissal.
1.55 In the matter IMATU and others v City of Johannesburg Metropolitan Municipality and others [2014] 6 BLLR 545 (LAC) the Court confirmed that the onus was on the employees to prove that they had a reasonable expectation that the contract would be renewed.
1.56 The Applicant had two successive fixed term contracts, which both had termination date and this was known to the Applicant.
1.57 There were however external circumstances of the strike and that created a duty on the Respondent to inform the Applicant of her status as there was no teaching or learning.
1.58 The failure by the Respondent to give the Applicant notice that the contract will not be renewed did not constitute a breach of the notice period because the Applicant was already aware that her contract was coming to an end.
1.59 The Applicant also failed to establish why she harboured an expectation that her contract would be renewed.
1.60 The Applicant has also conceded that she did not provide her services for the entire duration of the fixed term contract. She was therefore actually paid for services she did not provide, albeit not through her own making.
1.61 It is my finding therefore that the Applicant has failed to establish that her contract was terminated and that she was therefore dismissed.
G. AWARD.
1.62 The Applicant has failed to establish the existence of a dismissal.
1.63 The referral made by the Applicant is accordingly dismissed.
1.64 There is no order as to costs.