PSES865-18/19GP
PSES865-18/19GP
Award Date:
26 April 2019
Case Number: PSES865-18/19GP
Province: Gauteng
Applicant: Fikile Abraham Mavuso
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Department of Education Offices, Mabopane
Award Date: 26 April 2019
Arbitrator: Paul Phundu
Case Number: PSES865-18/19GP
Panellist: Paul Phundu
Date of Award: 26 April 2019
In the ARBITRATION between:
Fikile Abraham Mavuso Employee
And
Department of Education -(Gauteng) Employer
Employer’s representative: Mr T Moloto
Employer’s address: Tshwane West District
Mabopane
0008
Fax: 012 725 1346
Employee’s representative: In person
Employee’s address: 14 Humo Street
Lotus Gardens
0008
Telephone: 076 850 1412
Email: mavusoaf@gmail.com
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Fikile Abraham Mavuso, (hereinafter referred to as the Applicant) and Department of Education, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 11 April 2019 at the Department of Education Offices, Mabopane.
[2] The Applicant was present at the arbitration and represented himself. The Respondent was represented by, Mr Teddy Moloto, its Labour Relations Official.
[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Both parties submitted bundles of documents marked Annexure “A” and “B” the content was not in dispute.
ISSUE TO BE DECIDED
[6] I am required to determine whether the expiry of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.
BACKGROUND TO THE ISSUE
[7] The Applicant was employed by the Respondent on a temporary fixed term contract as an Educator PL 1.
[8] The fixed term contract entered into by the parties commenced on the 25th of July 2017 and ended on the 31st of December 2018. The contract was renewed continuously after every three months as at 25th of July 2017.
[9] The Applicant claimed that he was unfairly dismissed and he had an expectation that his temporary fixed term contract will be renewed.
[10] The Respondent claimed that the Applicant was not dismissed, but his fixed term contract came to an end. The Respondent further stated that the reason why the Applicant was not absorbed into a permanent position was because he was appointed temporarily in a promotional position. This meant the position must be advertised and filled after following the recruitment and selection policy.
[11] The Applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for permanent appointment.
SURVEY OF ARGUMENTS AND EVIDENCE
Applicant’s submissions
[12] Mr Fikile Abraham Mavuso testified under oath that he was employed temporarily by the Respondent as an Educator PL 1. His place of work was Lotus Garden Secondary School. Both parties entered into a temporary fixed term contract of employment. The duration of the contract was seventeen months. He taught Grade 8 Life Orientation and English. He alleged that he was dismissed twice by the Respondent. He was dismissed on the 31st of October 2018 and was again dismissed on the 31st of December 2018. After the dismissal in October 2018, his union intervened and he was reinstated immediately. The Applicant indicated that he was again dismissed on the 31st December 2018. The Applicant stated that after the end of October 2018, he was verbally informed by the Principal that his services will be required on a month to month basis till end of December 2018. After dismissal he lodged a grievance and was not happy with the outcome of the grievance procedure.
[13] The Applicant stated that the Council’s Resolution 1 of 2014, clause 5.2.1 provides that “Educator’s will be absorbed if there is a vacant substantive position on the current position establishment of the School and the Educator has remained in the temporary capacity for at least three months in the vacant substantive position. Clause 5.2.2 provides that “Conversion to permanent position if there is post level 1 Educator available as substantive vacant post and the Educator meets the curriculum needs of the school.” The Applicant believed that he was due for absorption into a permanent position because the position he was appointed into temporarily was vacant substantive position. The position was left vacant by Mr B Matthews who went on retirement. The Applicant was informed by the Respondent that he does not qualify for absorption into a permanent position. The Respondent introduced Council’s Resolution 4 of 2018. In July 2018, Ms Portia Kgatla resigned from Educator’s PL 1 position. This position became vacant substantive position. Ms Ramalikane was temporarily appointed instead. He should have been appointed into this position. He was again told he was appointed temporarily against a promotional position. He was told that the position of Ms Kgatla was not going to be filled by the Respondent because it was in excess.
[14] Under cross-examination, the Applicant disputed that Council’s Resolution 4 of 2018 takes precedent and substitute Council’s Resolution 1 of 2014. The Applicant agreed that he was appointed against a promotional position. The promotional position that he was temporarily appointed into was that of a Head of Department PL 2.
[15] The Applicant did not believe the Respondent when he was told that the position of Ms Ramalikane was also temporary because the school had one Educator who was in excess, as a result, the position of Ms Kgatla was not filled.
Respondent’s submissions
The Respondent had one witness who testified in support of its case. The evidence was briefly as follows:
[16] Mr Paresh Devchand testified under oath that he is employed by the Respondent as a Principal of Lotus Garden Secondary School. He has been the Principal of the School for the past ten years. The Applicant was employed temporarily since the 25th of July 2017 till the 31st of December 2018. The Head of Department for English at the school was occupied by Mr B Matthews who has since retired. Mr Matthews position was Educator PL 2. This was the reason why the Applicant was appointed temporarily to fill the position. The Applicant was appointed against the promotional position. The Applicant was appointed as an Educator PL 1. Post Establishment at the school for Educator PL 1 is 23. This number still remains and there is no vacancy for Educator PL 1 position and this is backed by the Post Establishment statistic supplied by the Respondent. The Applicant was not appointed as a Head of Department. His appointment was mainly to temporarily fill the gap of an English Educator who had resigned. The Applicant was informed of this situation before he could resume his duties. The school had 24 PL 1 Educators. The School had one Educator in excess. The school was over-staffed by one PL 1 Educator. Ms Kgatla retired and there was no need to replace her because the school was already over-staffed by one PL 1 Educator.
[17] The Respondent did not have a vacant substantive position at this school.
[18] The Respondent’s advertised the position that was occupied by the Applicant. This process took longer than the Respondent expected, hence the Applicant’s contract was renewed on several occasions. The Applicant was aware of the advert and the position has since been filled, hence the termination of the fixed term contract. The Applicant was not dismissed. His temporary contract came to an end.
[19] Under cross-examination, the Respondent confirmed that the Applicant did not report for duty in January 2019 because he was aware that his fixed term contract came to an end in December 2018. The school did not have a vacancy for LP 1 Educator. The Applicant was aware that he was appointed against a promotional position. Ms Ramalikane’s temporary appointment by the School Governing Body also came to an end.
ANALYSIS OF ARGUMENT AND EVIDENCE
[20] The dispute in essence amounts to whether, on the facts of the matter, the Applicant has discharged the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[21] In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of 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; or to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
[22] It is common cause that the parties entered into a written temporary fixed term contract. The duration of the contract was seventeen months. The last two months of the contract was automatic and this was verbally communicated to the Applicant. Despite the written contract, the Applicant was informed verbally that her contract will not be renewed after the 31st of December 2018.
[23] I reject the Applicant’s argument that he was dismissed in October 2018. The reason for my rejection is because the Applicant failed to present a dismissal letter or name the person who dismissed him during the proceedings. The Applicant contradicted himself by presenting a written contract of employment that showed that he was in the employ of the Respondent during the month of October 2018 and he was paid for this period. It is my finding that the Applicant was not dismissed in October 2018. The Applicant conceded that he was informed by the Principal timeously that his temporary employment would come to an end in December 2018. To prove this point, in January 2019, the Applicant did not report for duty because he knew that his temporary contract came to an end. It is my finding that the Applicant knew well in advance that his contract was to expiry on the 31st December 2018. It is my finding that he was not dismissed but his temporary contract of employment came to end. The Applicant conceded that his understanding of the promotional position meant he can’t be absorbed into it, however, he was permitted to apply for the position if advertised. Based on this admission, it is my finding that the Respondent did not act unfairly in not absorbing the Applicant into a promotional position.
[24] I accept the Respondent’s argument that the Applicant was aware that his position as an Educator LP 1 was temporary and was to expire on the 31st of December 2018. (I believe the Respondent’s argument that the School had one PL 1 Educator in excess. The resignation of Ms Kgatla did not create a vacancy as the school was already over-staffed. The reason I believe the Respondent’s argument was because of the documentary evidence presented by the Respondent during the proceedings indicating Post Establishment of the School. This information was not disputed by the Applicant. I am satisfied that the school did not have a vacant substantive position of PL 1 Educator. It is my finding that the Applicant’s claim for absorption was baseless and unsubstantiated. I have no reason not to believe that the Respondent had no vacant substantive PL 1 Educator position. (I am persuaded by the Respondent’s argument that the Applicant was not dismissed. His contract came to an end. I am persuaded that the recruitment and selection process took longer than was expected. I believe these were justifiable reasons as to why the Applicant’s contract was renewed on more than one occasion. Moreover, the Applicant knew that he was occupying a promotional position that had to be advertised.
[25] The Applicant failed to adduce evidence that proved that he had a reasonable expectation that his fixed term contract would be renewed.
[26] In NUM obo Mpaki vs. CCMA & Others JR 1983/2014 the Court held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors, which may influence such a finding, namely (a) agreements (b) undertakings by the employer, (c) custom or practice in regard to renewal, (d) the availability of the posts, (e) the purpose or reason for conclusion of the fixed term contract, (f) inconsistent conduct, (g) failure to give reasonable notice, (h) the nature of the business. The list is not exhaustive.
[27] In view of the above analysis, it is my finding that the Applicant has failed to discharge the onus of proving that the termination of his fixed term contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
AWARD
[28] It is my finding that the Applicant was not dismissed but his temporary contract of employment came to an end.
[29] The Applicant is not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU
Province: Gauteng
Applicant: Fikile Abraham Mavuso
Respondent: Department of Education Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Department of Education Offices, Mabopane
Award Date: 26 April 2019
Arbitrator: Paul Phundu
Case Number: PSES865-18/19GP
Panellist: Paul Phundu
Date of Award: 26 April 2019
In the ARBITRATION between:
Fikile Abraham Mavuso Employee
And
Department of Education -(Gauteng) Employer
Employer’s representative: Mr T Moloto
Employer’s address: Tshwane West District
Mabopane
0008
Fax: 012 725 1346
Employee’s representative: In person
Employee’s address: 14 Humo Street
Lotus Gardens
0008
Telephone: 076 850 1412
Email: mavusoaf@gmail.com
DETAILS OF HEARING AND REPRESENTATION
[1] This is the award in the arbitration between Fikile Abraham Mavuso, (hereinafter referred to as the Applicant) and Department of Education, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 11 April 2019 at the Department of Education Offices, Mabopane.
[2] The Applicant was present at the arbitration and represented himself. The Respondent was represented by, Mr Teddy Moloto, its Labour Relations Official.
[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
[5] Both parties submitted bundles of documents marked Annexure “A” and “B” the content was not in dispute.
ISSUE TO BE DECIDED
[6] I am required to determine whether the expiry of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.
BACKGROUND TO THE ISSUE
[7] The Applicant was employed by the Respondent on a temporary fixed term contract as an Educator PL 1.
[8] The fixed term contract entered into by the parties commenced on the 25th of July 2017 and ended on the 31st of December 2018. The contract was renewed continuously after every three months as at 25th of July 2017.
[9] The Applicant claimed that he was unfairly dismissed and he had an expectation that his temporary fixed term contract will be renewed.
[10] The Respondent claimed that the Applicant was not dismissed, but his fixed term contract came to an end. The Respondent further stated that the reason why the Applicant was not absorbed into a permanent position was because he was appointed temporarily in a promotional position. This meant the position must be advertised and filled after following the recruitment and selection policy.
[11] The Applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for permanent appointment.
SURVEY OF ARGUMENTS AND EVIDENCE
Applicant’s submissions
[12] Mr Fikile Abraham Mavuso testified under oath that he was employed temporarily by the Respondent as an Educator PL 1. His place of work was Lotus Garden Secondary School. Both parties entered into a temporary fixed term contract of employment. The duration of the contract was seventeen months. He taught Grade 8 Life Orientation and English. He alleged that he was dismissed twice by the Respondent. He was dismissed on the 31st of October 2018 and was again dismissed on the 31st of December 2018. After the dismissal in October 2018, his union intervened and he was reinstated immediately. The Applicant indicated that he was again dismissed on the 31st December 2018. The Applicant stated that after the end of October 2018, he was verbally informed by the Principal that his services will be required on a month to month basis till end of December 2018. After dismissal he lodged a grievance and was not happy with the outcome of the grievance procedure.
[13] The Applicant stated that the Council’s Resolution 1 of 2014, clause 5.2.1 provides that “Educator’s will be absorbed if there is a vacant substantive position on the current position establishment of the School and the Educator has remained in the temporary capacity for at least three months in the vacant substantive position. Clause 5.2.2 provides that “Conversion to permanent position if there is post level 1 Educator available as substantive vacant post and the Educator meets the curriculum needs of the school.” The Applicant believed that he was due for absorption into a permanent position because the position he was appointed into temporarily was vacant substantive position. The position was left vacant by Mr B Matthews who went on retirement. The Applicant was informed by the Respondent that he does not qualify for absorption into a permanent position. The Respondent introduced Council’s Resolution 4 of 2018. In July 2018, Ms Portia Kgatla resigned from Educator’s PL 1 position. This position became vacant substantive position. Ms Ramalikane was temporarily appointed instead. He should have been appointed into this position. He was again told he was appointed temporarily against a promotional position. He was told that the position of Ms Kgatla was not going to be filled by the Respondent because it was in excess.
[14] Under cross-examination, the Applicant disputed that Council’s Resolution 4 of 2018 takes precedent and substitute Council’s Resolution 1 of 2014. The Applicant agreed that he was appointed against a promotional position. The promotional position that he was temporarily appointed into was that of a Head of Department PL 2.
[15] The Applicant did not believe the Respondent when he was told that the position of Ms Ramalikane was also temporary because the school had one Educator who was in excess, as a result, the position of Ms Kgatla was not filled.
Respondent’s submissions
The Respondent had one witness who testified in support of its case. The evidence was briefly as follows:
[16] Mr Paresh Devchand testified under oath that he is employed by the Respondent as a Principal of Lotus Garden Secondary School. He has been the Principal of the School for the past ten years. The Applicant was employed temporarily since the 25th of July 2017 till the 31st of December 2018. The Head of Department for English at the school was occupied by Mr B Matthews who has since retired. Mr Matthews position was Educator PL 2. This was the reason why the Applicant was appointed temporarily to fill the position. The Applicant was appointed against the promotional position. The Applicant was appointed as an Educator PL 1. Post Establishment at the school for Educator PL 1 is 23. This number still remains and there is no vacancy for Educator PL 1 position and this is backed by the Post Establishment statistic supplied by the Respondent. The Applicant was not appointed as a Head of Department. His appointment was mainly to temporarily fill the gap of an English Educator who had resigned. The Applicant was informed of this situation before he could resume his duties. The school had 24 PL 1 Educators. The School had one Educator in excess. The school was over-staffed by one PL 1 Educator. Ms Kgatla retired and there was no need to replace her because the school was already over-staffed by one PL 1 Educator.
[17] The Respondent did not have a vacant substantive position at this school.
[18] The Respondent’s advertised the position that was occupied by the Applicant. This process took longer than the Respondent expected, hence the Applicant’s contract was renewed on several occasions. The Applicant was aware of the advert and the position has since been filled, hence the termination of the fixed term contract. The Applicant was not dismissed. His temporary contract came to an end.
[19] Under cross-examination, the Respondent confirmed that the Applicant did not report for duty in January 2019 because he was aware that his fixed term contract came to an end in December 2018. The school did not have a vacancy for LP 1 Educator. The Applicant was aware that he was appointed against a promotional position. Ms Ramalikane’s temporary appointment by the School Governing Body also came to an end.
ANALYSIS OF ARGUMENT AND EVIDENCE
[20] The dispute in essence amounts to whether, on the facts of the matter, the Applicant has discharged the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[21] In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of 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; or to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
[22] It is common cause that the parties entered into a written temporary fixed term contract. The duration of the contract was seventeen months. The last two months of the contract was automatic and this was verbally communicated to the Applicant. Despite the written contract, the Applicant was informed verbally that her contract will not be renewed after the 31st of December 2018.
[23] I reject the Applicant’s argument that he was dismissed in October 2018. The reason for my rejection is because the Applicant failed to present a dismissal letter or name the person who dismissed him during the proceedings. The Applicant contradicted himself by presenting a written contract of employment that showed that he was in the employ of the Respondent during the month of October 2018 and he was paid for this period. It is my finding that the Applicant was not dismissed in October 2018. The Applicant conceded that he was informed by the Principal timeously that his temporary employment would come to an end in December 2018. To prove this point, in January 2019, the Applicant did not report for duty because he knew that his temporary contract came to an end. It is my finding that the Applicant knew well in advance that his contract was to expiry on the 31st December 2018. It is my finding that he was not dismissed but his temporary contract of employment came to end. The Applicant conceded that his understanding of the promotional position meant he can’t be absorbed into it, however, he was permitted to apply for the position if advertised. Based on this admission, it is my finding that the Respondent did not act unfairly in not absorbing the Applicant into a promotional position.
[24] I accept the Respondent’s argument that the Applicant was aware that his position as an Educator LP 1 was temporary and was to expire on the 31st of December 2018. (I believe the Respondent’s argument that the School had one PL 1 Educator in excess. The resignation of Ms Kgatla did not create a vacancy as the school was already over-staffed. The reason I believe the Respondent’s argument was because of the documentary evidence presented by the Respondent during the proceedings indicating Post Establishment of the School. This information was not disputed by the Applicant. I am satisfied that the school did not have a vacant substantive position of PL 1 Educator. It is my finding that the Applicant’s claim for absorption was baseless and unsubstantiated. I have no reason not to believe that the Respondent had no vacant substantive PL 1 Educator position. (I am persuaded by the Respondent’s argument that the Applicant was not dismissed. His contract came to an end. I am persuaded that the recruitment and selection process took longer than was expected. I believe these were justifiable reasons as to why the Applicant’s contract was renewed on more than one occasion. Moreover, the Applicant knew that he was occupying a promotional position that had to be advertised.
[25] The Applicant failed to adduce evidence that proved that he had a reasonable expectation that his fixed term contract would be renewed.
[26] In NUM obo Mpaki vs. CCMA & Others JR 1983/2014 the Court held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors, which may influence such a finding, namely (a) agreements (b) undertakings by the employer, (c) custom or practice in regard to renewal, (d) the availability of the posts, (e) the purpose or reason for conclusion of the fixed term contract, (f) inconsistent conduct, (g) failure to give reasonable notice, (h) the nature of the business. The list is not exhaustive.
[27] In view of the above analysis, it is my finding that the Applicant has failed to discharge the onus of proving that the termination of his fixed term contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
AWARD
[28] It is my finding that the Applicant was not dismissed but his temporary contract of employment came to an end.
[29] The Applicant is not entitled to any relief.
ELRC PART-TIME PANELLIST: PAUL PHUNDU