PSES745-15/16FS
PSES745-15/16FS
Award Date:
5 August 2016
Case Number: PSES745-15/16FS
Province: Free State
Applicant: _MR. TV NTHATI
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 5 August 2016
Arbitrator: Nomsa Mbileni
Panellist: NOMSA MBILENI
Case No.: PSES745-15/16FS
Date of Award: 2016-08-05
In the MATTER between:
MR. TV NTHATI
(Union / Applicant)
And
DEPARTMENT OF EDUCATION LEJWELEPUTSWA WELKOM
(Respondent)
Union/Applicant’s representative: TV NTHATI
Telephone:
Telefax:
Email: __________________________________________________
Respondent’s representative: DEPARTMENT OF EDUCATION WELKOM
Telephone:
Telefax:
Email: __________________________________________________
DETAILS OF THE HEARING AND REPRESENTATION
[1]. The above matter was set-down for arbitration on 1st July 2016 at the offices of the Department of Education Lejweleputswa in Welkom. The applicant, Mr TV Nthati, appeared and was represented by an official of SADTU, Mr Seshoka. The respondent, the Department of Education Free State, was represented by its employee Mr P.M. Tladi.
ISSUE TO BE DETERMINED
[2]. Whether the termination of the applicant’s contract amounted to unfair dismissal.
BACKGROUND TO THE ISSUE
[3]. The applicant was employed by the respondent on fixed term contracts since 2009. His last contract was from 2nd February 2015 to the 31st December 2015. His salary was R153 417-00 per annum.
[4]. It is common cause that the applicant’s contract was not renewed after the 31st December 2015. It is further common cause that the applicant did not have the necessary qualifications to become an educator. Both the applicant and the respondent had agreed that the matter should be disposed with by submitting heads of arguments by the 8th July 2016. It is the 26th July 2016 and the applicant has not submitted any documents. The respondent has submitted its closing argument and I will proceed on the basis of the documents of the respondent alone.
SUMMARY OF ARGUMENTS
[5]. On behalf of the respondent it was argued that the applicant was not dismissed, but rather that his contract was not renewed. It was further argued that although the applicant had been given a fixed term contract, that was done in terms of Section 7 (2) of the Employment of Educators Act, Act No 76 of 1998, which permits the respondent to appoint an educator on a special contract for a fixed period. An audit of qualifications was done to establish whether all educators have the correct qualifications. The educators who did not have qualifications were given sufficient time to obtain the required qualifications. The applicant was given since 2009 to obtain the qualifications. He failed to obtain such qualifications and his employment as educator could not continue under such circumstances. His contract was not renewed because he did not qualify as an educator.
[6]. There was no argument on behalf of the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
[7]. The respondent has argued that its actions did not amount to a dismissal. It is common cause that the applicant’s contract was not renewed. In terms of section 186 (1) (b) of the Labour Relations Act 66 of 1995, (“LRA”) it constitutes a dismissal:-
“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; or
(ii) 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”.
[8] At the end of 2015 the applicant’s contract was not renewed and he referred a dispute to the ELRC alleging that he was unfairly dismissed. The underlying issues were whether a dismissal occurred and, if so, whether the dismissal was unfair.
[9] In terms of section 192 of the Labour Relations Act the onus to prove the existence of a dismissal rests with the employee party. In the present case that included proving that that the applicant had a reasonable expectation that his contract would be renewed. The applicant did not lead any evidence to prove that it was reasonable of him to expect that his contract would be renewed despite him not having obtained the required qualifications to be appointed as an educator. Any expectation that his contract would be renewed that the applicant might have had, was unreasonable and accordingly no dismissal occurred.
[10] Even if a dismissal occurred the applicant would still not have been entitled to relief. In terms of Section 192 of the Labour Relations Act the onus to prove the fairness of a dismissal rests with an employer party. In the present case the employer’s case was that it required all educators to be suitably qualified. Those who did not have the required qualifications were given sufficient time to obtain same. The applicant was given about 5 years to obtain the qualifications. After all that time he could not even show that he made an attempt to obtain the required qualifications. The applicant did not dispute the respondent’s case and for that reason the respondent’s averments are accepted as proven. On the accepted evidence the respondent’s refusal to renew the applicant’s contract was not unfair.
AWARD
[11]. The applicant failed to prove the existence of a dismissal and is for that reason not entitled to relief.
[12]. No cost order is made.
N.G.J. MBILENI
PANELLIST
Province: Free State
Applicant: _MR. TV NTHATI
Respondent: Department of Education Free State
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Award Date: 5 August 2016
Arbitrator: Nomsa Mbileni
Panellist: NOMSA MBILENI
Case No.: PSES745-15/16FS
Date of Award: 2016-08-05
In the MATTER between:
MR. TV NTHATI
(Union / Applicant)
And
DEPARTMENT OF EDUCATION LEJWELEPUTSWA WELKOM
(Respondent)
Union/Applicant’s representative: TV NTHATI
Telephone:
Telefax:
Email: __________________________________________________
Respondent’s representative: DEPARTMENT OF EDUCATION WELKOM
Telephone:
Telefax:
Email: __________________________________________________
DETAILS OF THE HEARING AND REPRESENTATION
[1]. The above matter was set-down for arbitration on 1st July 2016 at the offices of the Department of Education Lejweleputswa in Welkom. The applicant, Mr TV Nthati, appeared and was represented by an official of SADTU, Mr Seshoka. The respondent, the Department of Education Free State, was represented by its employee Mr P.M. Tladi.
ISSUE TO BE DETERMINED
[2]. Whether the termination of the applicant’s contract amounted to unfair dismissal.
BACKGROUND TO THE ISSUE
[3]. The applicant was employed by the respondent on fixed term contracts since 2009. His last contract was from 2nd February 2015 to the 31st December 2015. His salary was R153 417-00 per annum.
[4]. It is common cause that the applicant’s contract was not renewed after the 31st December 2015. It is further common cause that the applicant did not have the necessary qualifications to become an educator. Both the applicant and the respondent had agreed that the matter should be disposed with by submitting heads of arguments by the 8th July 2016. It is the 26th July 2016 and the applicant has not submitted any documents. The respondent has submitted its closing argument and I will proceed on the basis of the documents of the respondent alone.
SUMMARY OF ARGUMENTS
[5]. On behalf of the respondent it was argued that the applicant was not dismissed, but rather that his contract was not renewed. It was further argued that although the applicant had been given a fixed term contract, that was done in terms of Section 7 (2) of the Employment of Educators Act, Act No 76 of 1998, which permits the respondent to appoint an educator on a special contract for a fixed period. An audit of qualifications was done to establish whether all educators have the correct qualifications. The educators who did not have qualifications were given sufficient time to obtain the required qualifications. The applicant was given since 2009 to obtain the qualifications. He failed to obtain such qualifications and his employment as educator could not continue under such circumstances. His contract was not renewed because he did not qualify as an educator.
[6]. There was no argument on behalf of the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
[7]. The respondent has argued that its actions did not amount to a dismissal. It is common cause that the applicant’s contract was not renewed. In terms of section 186 (1) (b) of the Labour Relations Act 66 of 1995, (“LRA”) it constitutes a dismissal:-
“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; or
(ii) 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”.
[8] At the end of 2015 the applicant’s contract was not renewed and he referred a dispute to the ELRC alleging that he was unfairly dismissed. The underlying issues were whether a dismissal occurred and, if so, whether the dismissal was unfair.
[9] In terms of section 192 of the Labour Relations Act the onus to prove the existence of a dismissal rests with the employee party. In the present case that included proving that that the applicant had a reasonable expectation that his contract would be renewed. The applicant did not lead any evidence to prove that it was reasonable of him to expect that his contract would be renewed despite him not having obtained the required qualifications to be appointed as an educator. Any expectation that his contract would be renewed that the applicant might have had, was unreasonable and accordingly no dismissal occurred.
[10] Even if a dismissal occurred the applicant would still not have been entitled to relief. In terms of Section 192 of the Labour Relations Act the onus to prove the fairness of a dismissal rests with an employer party. In the present case the employer’s case was that it required all educators to be suitably qualified. Those who did not have the required qualifications were given sufficient time to obtain same. The applicant was given about 5 years to obtain the qualifications. After all that time he could not even show that he made an attempt to obtain the required qualifications. The applicant did not dispute the respondent’s case and for that reason the respondent’s averments are accepted as proven. On the accepted evidence the respondent’s refusal to renew the applicant’s contract was not unfair.
AWARD
[11]. The applicant failed to prove the existence of a dismissal and is for that reason not entitled to relief.
[12]. No cost order is made.
N.G.J. MBILENI
PANELLIST