PSES333-15/16NW
Text
PSES333-15/16NW
Award Date:
7 December 2015
Case Number: PSES333-15/16NW
Province: North West
Applicant: Liholo P.S
Respondent: Department of Education North West
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Education North West District Office (Ngaka Modiri Molema) in Mafikeng
Award Date: 7 December 2015
Arbitrator: Eva Ngobeni
Commissioner:Eva Ngobeni
Case No: PSES333-15/16NW
Date of Award:07 December 2015
In the Dispute between:
Liholo, P.S
(Union/Applicant)
And
Department of Education (North West)
(Respondent)
Applicant’s representative: Liholo S (Applicant himself)
E-mail:
Fax: n/a
Contact number: 078 316 0087
Respondent’s representative: Meje P.M
E-mail:
Fax: 018 388 1703
Contact number: 018 388 4107
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 20 November 2015, 09h00 at the premises of Department of Education North West District Office (Ngaka Modiri Molema) in Mafikeng.
2. Both parties were in attendance and representation is as indicated above from all parties. The proceedings was mechanically recorded and notes were taken. The applicant made oral submissions of his closing statement and the respondent’s written closing statement was received on 30 November 2015.
BACKGROUND OF THE DISPUTE
3. The applicant was employed on a fixed term contract from 22 January 2015. At commencement of employment, the applicant was never issued with a written contract of employment. He earned R202 872 per annum as a teacher on post level 1. His employment was terminated on 30 June 2015.
4. On termination, the applicant filed a dispute with the Council on 17 August 2015. The matter remained unresolved at Conciliation and the applicant filed a referral to arbitration hence these proceedings. On narrowing the issues, the following issues were found to be in dispute:
a) Whether the School Governing Body made recommendations that the applicant’s appointment be made until 30 June 2015.
b) Whether the applicant was made aware about the duration of his contract.
ISSUE FOR DETERMINATION
5. I must determine whether there was a dismissal. If so, whether the dismissal of the applicant was substantively and procedurally fair. If unfair, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
APPLICANT’S EVIDENCE
He testified in support of his own case. A summary of his submissions is as follows:
6. He signed an application form for employment on 22 January 2015 which indicated that his employment shall terminate on 30 December 2015. At commencement of employment, the applicant was not issued with any written contract of employment indicating an end date. He only received a letter on 28 July 2015 stating that his employment has terminated a month ago. This letter was dated 03 July 2015 and sent to him via the office of the area manager. He argued to have received no communication prior to, which indicated that his employment shall terminate on 30 June 2015. He approached the office of the Department on 24 July 2015 to enquire about his salary. Subsequently, he was informed that he has been terminated.
7. He conceded under cross-examination that appointments are made after recommendations are made by School Governing Body. His initial salary was paid in May 2015. He visited the district office regularly during the months of February /March whilst enquiring about his non-payment of salaries. He conceded that within this period of employment, he spoke to Ms. Ramatae who indicated that at the school where he was placed there was no post level 1 and the school had some difficulty paying his salary. Due to his salary being paid in May, the discussions that he had about the challenges experienced by the school in paying his salary was of no relevance.
8. He argued that he does not accept the contents of the letter as issued to him on 28 July 2015. Accordingly, this would have carried water if it was issued prior to his termination. He argued that he was not made aware on when his employment shall come to an end. He was of the view that his employment shall run until end of year.
RESPONDENT’S EVIDENCE
Smangele Catherine Ramatae
She testified in support of the employer’s case. A summary of her submissions is as follows:
9. She is currently employed as an Acting Human Resource Manager. She is in charge of all HR divisions in the district, management and development. The applicant’s contract ran until end of June 2015. There was a circular issued from the National level indicating that educators who resigned are not to be appointed. This circular was later withdrawn by the provincial office. Other educators who had not resigned were appointed except for the applicant. The applicant was appointed against a promotional post. The Department chose to pay him until June 2015. The applicant’s actual appointment was captured in May 2015, so as the school can promote as of July 2015.
10. She argued that she had no substantive post, this was a temp post from date of resumption till end of June 2015. When the applicant visits her office, she discussed the issue of non-payment of salaries with him. The applicant’s post was created so as he can be paid for services rendered. She did inform the applicant that his employment was for 6 months via a letter issued on 03 July 2015. This letter was sent to Area office before the school re-opens. This was immediately after paying him for services rendered.
11. She argued that the applicant came to the office around May, where she had a discussion with him that he would be paid for services rendered until June 2015 (not trustworthy – changed version). The area office was aware that the applicant’s services shall terminate end of June 2015. The promotional post was to be effected 01 July, it was already advertised with letters issued to those who were to occupy the post. She argued that a promotional position cannot go beyond a period of 06 months. This is a control measure from the Department. She argued that there were discussions with the applicant that he was sitting on a promotional position.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. Section 192 (1) of the Labour Relations Act stipulates that “In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal”. Dismissal is in dispute. Therefore, the onus to prove the existence of a dismissal rests with the employee.
13. Section 198B (6) stipulates that ‘’an offer to employ an employee on a fixed term contract or to renew or extend a fixed term contract, must-
a) be in writing; and
b) state the reasons contemplated in subsection (3) (a) or (b)
14. It is common cause that there was no written contract of employment between parties except for the appointment letter which was issued on 03 July 2015, this being days after the applicant’s contract was terminated. This appointment letter stipulates that the applicant was employed on a fixed term duration of contract due to lapse on 30 June 2015. I am of the view that such fixed term of contract did not meet the criterion set as per Section 198B (6) (a). The applicant concedes that he was employed on a fixed term contract given his indications on applying for the position. Accordingly, the duration of such contract was not outlined. He expected the contract to run until 31 December 2015.
15. The respondent argued that there was a verbal discussion between the applicant and the respondent’s witness whereupon the applicant was informed that his employment is until 30 June 2015. The applicant argued that he was only told that the department is struggling to pay his salary due to non-availability of a post he was occupying at the school. After receiving a salary in May, the discussions he had with the witness was of no relevance. More so, the Principal made indications that the position was available. There is a dispute of fact on whether the applicant was made aware of his termination date of 30 June 2015. The witness of the respondent led contradictory versions on this issue. At one instance she mentioned that the applicant’s non-appointment was due to that he (applicant) previously resigned from the Department. Again she mentioned that the post the applicant was occupying was a promotion position which was due to be filled in July 2015. Accordingly, shortlisting and interviews were conducted but she does not know when and how the post is to be filled. Lastly stated that the school had no post available hence there was a struggle in paying the applicant’s salary.I find this version to be unreliable and riddled with inconsistencies. I therefore choose to accept the applicant’s version that he became aware of the term of his contract after he was terminated.
16. I therefore find that the applicant was dismissed. The respondent led no evidence on why the applicant’s contract was terminated abruptly. I have to accept that given the applicant’s submission that the expected end of contract date was 31 December 2015. Although this was not discussed nor agreed upon between the parties, the applicant had a reasonable expectation that his contract will lapse end of December 2015 based on an application form. The issue on who appoints a teacher at the school had no effect on this case given that the applicant was not informed of his term of contract during employment. I find that the applicant’s termination was substantively and procedurally unfair.
17. The employee stated that he does not wish to be reinstated but sought compensation as a relief. In considering compensation, I considered the period that has lapsed since dismissal [6 months], the employee is currently unemployed, and that the dismissal was unfair on both grounds. Therefore, I order as follows:
AWARD
18. The employer, Department of Education – North West, is ordered to compensate the employee, Liholo P.S, with an amount of R101 436 which is equivalent to 6 months’ salary calculated as follows: R202 872 / 12 x 6 months. The amount noted herein is subject to tax and/or minus such deductions as the employer is in terms of the law entitled or obliged to make.
19. The amount noted above is payable on or before 04 January 2016, failing which the employee can invoke the provisions of S143 of the Act to seek compliance with this award.
20. Furthermore, the amount as noted above is to accumulate interest from the date on which payment becomes due in accordance with S143 (2) of the LRA.
21. I make no order as to costs
Thus done and signed in Pretoria on 07 December 2015
Panellist: Evah T. Ngobeni
Province: North West
Applicant: Liholo P.S
Respondent: Department of Education North West
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Education North West District Office (Ngaka Modiri Molema) in Mafikeng
Award Date: 7 December 2015
Arbitrator: Eva Ngobeni
Commissioner:Eva Ngobeni
Case No: PSES333-15/16NW
Date of Award:07 December 2015
In the Dispute between:
Liholo, P.S
(Union/Applicant)
And
Department of Education (North West)
(Respondent)
Applicant’s representative: Liholo S (Applicant himself)
E-mail:
Fax: n/a
Contact number: 078 316 0087
Respondent’s representative: Meje P.M
E-mail:
Fax: 018 388 1703
Contact number: 018 388 4107
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 20 November 2015, 09h00 at the premises of Department of Education North West District Office (Ngaka Modiri Molema) in Mafikeng.
2. Both parties were in attendance and representation is as indicated above from all parties. The proceedings was mechanically recorded and notes were taken. The applicant made oral submissions of his closing statement and the respondent’s written closing statement was received on 30 November 2015.
BACKGROUND OF THE DISPUTE
3. The applicant was employed on a fixed term contract from 22 January 2015. At commencement of employment, the applicant was never issued with a written contract of employment. He earned R202 872 per annum as a teacher on post level 1. His employment was terminated on 30 June 2015.
4. On termination, the applicant filed a dispute with the Council on 17 August 2015. The matter remained unresolved at Conciliation and the applicant filed a referral to arbitration hence these proceedings. On narrowing the issues, the following issues were found to be in dispute:
a) Whether the School Governing Body made recommendations that the applicant’s appointment be made until 30 June 2015.
b) Whether the applicant was made aware about the duration of his contract.
ISSUE FOR DETERMINATION
5. I must determine whether there was a dismissal. If so, whether the dismissal of the applicant was substantively and procedurally fair. If unfair, I must determine the appropriate remedy.
SURVEY OF EVIDENCE AND ARGUMENTS
APPLICANT’S EVIDENCE
He testified in support of his own case. A summary of his submissions is as follows:
6. He signed an application form for employment on 22 January 2015 which indicated that his employment shall terminate on 30 December 2015. At commencement of employment, the applicant was not issued with any written contract of employment indicating an end date. He only received a letter on 28 July 2015 stating that his employment has terminated a month ago. This letter was dated 03 July 2015 and sent to him via the office of the area manager. He argued to have received no communication prior to, which indicated that his employment shall terminate on 30 June 2015. He approached the office of the Department on 24 July 2015 to enquire about his salary. Subsequently, he was informed that he has been terminated.
7. He conceded under cross-examination that appointments are made after recommendations are made by School Governing Body. His initial salary was paid in May 2015. He visited the district office regularly during the months of February /March whilst enquiring about his non-payment of salaries. He conceded that within this period of employment, he spoke to Ms. Ramatae who indicated that at the school where he was placed there was no post level 1 and the school had some difficulty paying his salary. Due to his salary being paid in May, the discussions that he had about the challenges experienced by the school in paying his salary was of no relevance.
8. He argued that he does not accept the contents of the letter as issued to him on 28 July 2015. Accordingly, this would have carried water if it was issued prior to his termination. He argued that he was not made aware on when his employment shall come to an end. He was of the view that his employment shall run until end of year.
RESPONDENT’S EVIDENCE
Smangele Catherine Ramatae
She testified in support of the employer’s case. A summary of her submissions is as follows:
9. She is currently employed as an Acting Human Resource Manager. She is in charge of all HR divisions in the district, management and development. The applicant’s contract ran until end of June 2015. There was a circular issued from the National level indicating that educators who resigned are not to be appointed. This circular was later withdrawn by the provincial office. Other educators who had not resigned were appointed except for the applicant. The applicant was appointed against a promotional post. The Department chose to pay him until June 2015. The applicant’s actual appointment was captured in May 2015, so as the school can promote as of July 2015.
10. She argued that she had no substantive post, this was a temp post from date of resumption till end of June 2015. When the applicant visits her office, she discussed the issue of non-payment of salaries with him. The applicant’s post was created so as he can be paid for services rendered. She did inform the applicant that his employment was for 6 months via a letter issued on 03 July 2015. This letter was sent to Area office before the school re-opens. This was immediately after paying him for services rendered.
11. She argued that the applicant came to the office around May, where she had a discussion with him that he would be paid for services rendered until June 2015 (not trustworthy – changed version). The area office was aware that the applicant’s services shall terminate end of June 2015. The promotional post was to be effected 01 July, it was already advertised with letters issued to those who were to occupy the post. She argued that a promotional position cannot go beyond a period of 06 months. This is a control measure from the Department. She argued that there were discussions with the applicant that he was sitting on a promotional position.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. Section 192 (1) of the Labour Relations Act stipulates that “In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal”. Dismissal is in dispute. Therefore, the onus to prove the existence of a dismissal rests with the employee.
13. Section 198B (6) stipulates that ‘’an offer to employ an employee on a fixed term contract or to renew or extend a fixed term contract, must-
a) be in writing; and
b) state the reasons contemplated in subsection (3) (a) or (b)
14. It is common cause that there was no written contract of employment between parties except for the appointment letter which was issued on 03 July 2015, this being days after the applicant’s contract was terminated. This appointment letter stipulates that the applicant was employed on a fixed term duration of contract due to lapse on 30 June 2015. I am of the view that such fixed term of contract did not meet the criterion set as per Section 198B (6) (a). The applicant concedes that he was employed on a fixed term contract given his indications on applying for the position. Accordingly, the duration of such contract was not outlined. He expected the contract to run until 31 December 2015.
15. The respondent argued that there was a verbal discussion between the applicant and the respondent’s witness whereupon the applicant was informed that his employment is until 30 June 2015. The applicant argued that he was only told that the department is struggling to pay his salary due to non-availability of a post he was occupying at the school. After receiving a salary in May, the discussions he had with the witness was of no relevance. More so, the Principal made indications that the position was available. There is a dispute of fact on whether the applicant was made aware of his termination date of 30 June 2015. The witness of the respondent led contradictory versions on this issue. At one instance she mentioned that the applicant’s non-appointment was due to that he (applicant) previously resigned from the Department. Again she mentioned that the post the applicant was occupying was a promotion position which was due to be filled in July 2015. Accordingly, shortlisting and interviews were conducted but she does not know when and how the post is to be filled. Lastly stated that the school had no post available hence there was a struggle in paying the applicant’s salary.I find this version to be unreliable and riddled with inconsistencies. I therefore choose to accept the applicant’s version that he became aware of the term of his contract after he was terminated.
16. I therefore find that the applicant was dismissed. The respondent led no evidence on why the applicant’s contract was terminated abruptly. I have to accept that given the applicant’s submission that the expected end of contract date was 31 December 2015. Although this was not discussed nor agreed upon between the parties, the applicant had a reasonable expectation that his contract will lapse end of December 2015 based on an application form. The issue on who appoints a teacher at the school had no effect on this case given that the applicant was not informed of his term of contract during employment. I find that the applicant’s termination was substantively and procedurally unfair.
17. The employee stated that he does not wish to be reinstated but sought compensation as a relief. In considering compensation, I considered the period that has lapsed since dismissal [6 months], the employee is currently unemployed, and that the dismissal was unfair on both grounds. Therefore, I order as follows:
AWARD
18. The employer, Department of Education – North West, is ordered to compensate the employee, Liholo P.S, with an amount of R101 436 which is equivalent to 6 months’ salary calculated as follows: R202 872 / 12 x 6 months. The amount noted herein is subject to tax and/or minus such deductions as the employer is in terms of the law entitled or obliged to make.
19. The amount noted above is payable on or before 04 January 2016, failing which the employee can invoke the provisions of S143 of the Act to seek compliance with this award.
20. Furthermore, the amount as noted above is to accumulate interest from the date on which payment becomes due in accordance with S143 (2) of the LRA.
21. I make no order as to costs
Thus done and signed in Pretoria on 07 December 2015
Panellist: Evah T. Ngobeni