ELRC 82-14/15 GP
ELRC 82-14/15 GP
Award Date:
2 September 2015
Case Number: ELRC 82-14/15 GP
Province: Gauteng
Applicant: MUTUPA LAZARUS
Respondent: Department fo Education Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Sedibeng TVET College situated at no37 Voortrekker Road, Vereeniging.
Award Date: 2 September 2015
Arbitrator: THABE PHALANE
Panellist/s: THABE PHALANE
Case No.: ELRC 82-14/15 GP
Date of Award: 02 SEPTEMBER 2015
In the ARBITRATION between:
MUTUPA LAZARUS
(Union / Applicant)
and
SEDIBENG TVET
(Respondent)
Union/Applicant’s representative: IN PERSON
Telephone: 071 967 5997
Telefax:
Email: mutlaz72@gmail.com
Respondent’s representative: MR BONGANI KHOZA
Telephone: 011 784 5554/ 082 555 2708
Telefax: 011 784 5547
Email: bongani@bkinc.co.za-mothapog@sedcol.co.za
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on the 19 August 2015 at Sedibeng TVET College situated at no37 Voortrekker Road, Vereeniging.
1.2 Both parties attended and the Applicant was unrepresented, whilst the Respondent was represented by MrBonganiKhoza, an attorney from Khoza and Associates.
1.3 The proceedings were digitally recorded and no interpretation services were required.
1.4 The Respondent also handed in a bundle of documents marked Bundle ”A”, and the Applicant also submitted his bundle and since most of the documents were contained in the Respondent’s bundle, the parties agreed to consolidate the bundles and proceed with one bundle Bundle ”A”, with pages 01-72.
1.5 The parties previously entered into a pre arbitration minute on the 16 January 2015.
1.6 The parties also agreed that they will submit written heads of argument on or before the 25 August 2015.
1.7 The Applicant submitted his Heads of Argument on the 26 August 2015 and the Respondent submitted their Heads of Argument on the 28 August 2015.
1.8 Dismissal was in dispute and the Applicant presenting evidence.
B. ISSUE TO BE DECIDED
I am required to determine whether the termination of the Applicant’s fixed term contract was fair or unfair, and if found to have been unfair, to grant the necessary relief.
C. PRELIMINARY ISSUES
1.9 There were no preliminary issued which were raised.
D. BACKGROUND TO THE ISSUE
1.10 The Applicant is a Foreign National from Zimbabwe and was employed as an Educator at Sedibeng TVET College on various contracts from in June 2013, and earned a salary of R 17 167 per month.
1.11 He was notified on the 27 October 2014 that his contract will be coming to an end on the 31 December 2015. He was also advised and urged to apply for a post that he qualified for.
1.12 He applied for the advertised post, was interviewed, but he was not appointed.
1.13 He was the only witness to testify. He wanted reinstatement as a remedy.
1.14 The Applicant was not represented and in order to present a meaningful case, I adopted an inquisitorial approach to the proceedings and pointed to the Applicant issues that he was required to respond to and the consequences of failing to challenge the Respondent’s version.
1.15 The Respondent on the other hand submitted that the Applicant was not dismissed.
1.16 His contract came to an end at the expiry of its fixed term.
1.17 Contrary to what the Applicant claims, he did not apply for any of the advertised posts. The Respondent could not consider him when he had not applied for the post.
1.18 The Respondent is also bound by its own policy when it comes to appointing Foreign Nationals.
1.19 The Respondent wanted the matter to be dismissed.
SURVEY OF EVIDENCE AND ARGUMENT
E. APPLICANT’S EVIDENCE AND ARGUMENTS
MrLAZARUS MUTUPA.
1.20 The Applicant was given a letter advising him that his contract was coming to an end, and further that he had to apply for the advertised posts. (p 16, and 69 of bundle).
1.21 He applied and on the 17 November 2014 he was invited for an interview( p70), for the post reference 10/2015.,
1.22 When he was not called when the College reopened, he approached MrMothapo, the General Manager, who told him that his permit was not ok. He brought his permit and he was then told that the College was full.
1.23 He disputed that the post that he applied for is the one that the Respondent is submitting on page 64 because that post has a different reference, SC 17/2015, and not 10/2015.
1.24 He also added that the respondent could not expect him to attend on the 16 October 2014 when he was told to apply on the 27 October 2014 ( p 69) asked to come for the interview on the 17 November 2014 (p 70).
1.25 He is the holder of a scarce skills permit.
1.26 Under cross examination the Applicant conceded that it will be fair to appoint the successful candidate as the one with the highest score. On the list of results that he has submitted (p72) however, there are at least 3 other candidates that scored above him.
1.27 He disputed that the successful candidate, MrMaluleka, was appointed to the post that he applied for because it has a different reference number.
1.28 He conceded again that the post he applied for in (p 52), with reference SC 17/2014, was the post that he applied for because it also has the same job description.
1.29 He saw the advertisement and applied for that post. He could not explain why his name was not on the list on the names that appear on (p 56), but insisted that he had applied, and for post 10/2015.
1.30 The Applicant agreed that the memorandum on (p18-19) was received by him on the 15 July 2015. He also agreed that the advertisements of posts contained on (p 47-55) were as a result of the memorandum from the Principal, DrMashele.
1.31 He also agreed that there is a Policy regulating the appointment of Foreign Nationals (p 26-34).
F. RESPONDENT’S EVIDENCE AND ARGUMENTS
Mr MAMOCHITE GEORGE MOTHAPO
1.32 The witness submitted that it was the first time he sees the document on (p 72) but that even on that document, the Applicant would not be the best candidate.
1.33 The purpose of the memorandum was to inform staff, especially temporary staff, about the legal precepts that apply to their appointments.
1.34 The first one is that those who were appointed but did not meet the minimum requirements would be required to show that they do meet the minimum requirements.
1.35 The second was to inform Foreign Nationals that their posts will be advertised and filled with South African Nationals who are suitable for the posts.
1.36 The Respondent submitted that the Applicant was appointed in a temporary capacity because at the time of his appointment, he did not have permanent residence status and thus could not be appointed permanently, and that there was no South African who hadsuitable qualifications to be appointed.
1.37 The Respondent has now found a suitable candidate in Mr Maluleka, who was appointed from the 01 February 2015 (p35).
1.38 The College opened on the 05 January 2015 due to registrations. The classes were going to start on the 01 February 2015.
1.39 The Applicant could not be considered because he did not apply because he was not captured on the document that shows the people who apply for any post with the College (p56).
1.40 The policy stated (p 30), that the appointment of South Africans was a priority. It is not that the Applicant is a last resort, but that the College found a suitable candidate.
1.41 Under cross examination the witness submitted that the application for permanent residence is made through the Home Affairs Department, and the Applicant did not ask for assistance in the form of a letter, not even through the Union, from the College to assist him get permanent residence.
1.42 The Applicant could not establish a reasonable expectation to be appointed. The Respondent was fair from the beginning. There was a memo sent out to prepare the staff, in July and October 2014.
1.43 There is no confusion regarding the advertised posts. Post 10/2015 and post SC 17/2014 is one post that is explained in the job description and the College also knows about the posts when they conduct interviews.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.44 Due regard is made to the provisions of sections 186, 192 and the Code of Good Practice Dismissals, as well as the Arbitration guidelines contained the Labour Relations Act 66 of 1995, (the Act).
1.45 The parties also submitted written submissions which I have also considered when arriving at these findings.
1.46 I have also referred to relevant case law which is applicable to this matter.
1.47 The issue in dispute is whether the Applicant had a reasonable expectation that his contract will be renewed in terms of Section 186 (1) (a) (i) of the Act.
1.48 There is no dispute that the Applicant has been placed on a number of contracts with the Respondent. There is no dispute is the reason why the Applicant was placed on these fixed term contracts; he is a Foreign National, whose were always going to be fixed or temporary unless he obtained permanent residence status.
1.49 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 its term. Such termination does not constitute a dismissal’.
1.50 In the case Independent Municipal And Allied Trade Union 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 their contracts would be renewed…’.
1.51 The Applicant has not submitted any reason showing an expectation of further renewal.
1.52 There was a memorandum circulated that clearly advised the staff that their posts will e advertised.
1.53 The reasons for the advertisement of their posts were given and a further explanation was also provided for Foreign Nationals.
1.54 There is also clear policy directives that regulate the filling of posts and the Applicant has acknowledged that in the case where there is a foreign National and a South African, the South African will get preference.
1.55 There was a further Notice and an invitation to apply for these posts and the Applicant failed to apply.
1.56 This is where the Applicants case unravels.
1.57 The Respondent has independent record of all the people who applied, and the Applicant is not one of them.
1.58 The Applicants submission that the applied for a different post is contradicted by his admission during cross examination that he applied for the post SC 17/2014, however this is different to post 10/2015.
1.59 I can therefore not concur with the Applicant when he says he applied for post 10/2015 when he agrees that he applied for post SC 17/2014.
1.60 Another fact that destroys the Applicant’s reasonable expectation claim is the fact that if we accept his version of the process, he was interviewed and scored, but he is not the best candidate according to the scores he provided. It will be difficult to see where the expectation lies when he was not even the best candidate.
1.61 The Applicant has therefore failed to establish the reasonable expectation that he says he expected to have his contract renewed when he was given adequate notice of the expiry of his contract and he failed to at least apply so that he can be considered.
In these circumstances I make the following award
G. AWARD.
1.62 The fixed term contract of the Applicant came to an end by operation of law at the end of its term.
1.63 The Applicant has therefore failed to establish a reasonable expectation that his contract will be renewed.
1.64 The matter is consequently dismissed.
1.65 There is no order as to costs.
(signed)PANELIST
THABE PHALANE
Province: Gauteng
Applicant: MUTUPA LAZARUS
Respondent: Department fo Education Gauteng
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Venue: Sedibeng TVET College situated at no37 Voortrekker Road, Vereeniging.
Award Date: 2 September 2015
Arbitrator: THABE PHALANE
Panellist/s: THABE PHALANE
Case No.: ELRC 82-14/15 GP
Date of Award: 02 SEPTEMBER 2015
In the ARBITRATION between:
MUTUPA LAZARUS
(Union / Applicant)
and
SEDIBENG TVET
(Respondent)
Union/Applicant’s representative: IN PERSON
Telephone: 071 967 5997
Telefax:
Email: mutlaz72@gmail.com
Respondent’s representative: MR BONGANI KHOZA
Telephone: 011 784 5554/ 082 555 2708
Telefax: 011 784 5547
Email: bongani@bkinc.co.za-mothapog@sedcol.co.za
A. DETAILS OF HEARING AND REPRESENTATION.
1.1 The Arbitration proceedings took place on the 19 August 2015 at Sedibeng TVET College situated at no37 Voortrekker Road, Vereeniging.
1.2 Both parties attended and the Applicant was unrepresented, whilst the Respondent was represented by MrBonganiKhoza, an attorney from Khoza and Associates.
1.3 The proceedings were digitally recorded and no interpretation services were required.
1.4 The Respondent also handed in a bundle of documents marked Bundle ”A”, and the Applicant also submitted his bundle and since most of the documents were contained in the Respondent’s bundle, the parties agreed to consolidate the bundles and proceed with one bundle Bundle ”A”, with pages 01-72.
1.5 The parties previously entered into a pre arbitration minute on the 16 January 2015.
1.6 The parties also agreed that they will submit written heads of argument on or before the 25 August 2015.
1.7 The Applicant submitted his Heads of Argument on the 26 August 2015 and the Respondent submitted their Heads of Argument on the 28 August 2015.
1.8 Dismissal was in dispute and the Applicant presenting evidence.
B. ISSUE TO BE DECIDED
I am required to determine whether the termination of the Applicant’s fixed term contract was fair or unfair, and if found to have been unfair, to grant the necessary relief.
C. PRELIMINARY ISSUES
1.9 There were no preliminary issued which were raised.
D. BACKGROUND TO THE ISSUE
1.10 The Applicant is a Foreign National from Zimbabwe and was employed as an Educator at Sedibeng TVET College on various contracts from in June 2013, and earned a salary of R 17 167 per month.
1.11 He was notified on the 27 October 2014 that his contract will be coming to an end on the 31 December 2015. He was also advised and urged to apply for a post that he qualified for.
1.12 He applied for the advertised post, was interviewed, but he was not appointed.
1.13 He was the only witness to testify. He wanted reinstatement as a remedy.
1.14 The Applicant was not represented and in order to present a meaningful case, I adopted an inquisitorial approach to the proceedings and pointed to the Applicant issues that he was required to respond to and the consequences of failing to challenge the Respondent’s version.
1.15 The Respondent on the other hand submitted that the Applicant was not dismissed.
1.16 His contract came to an end at the expiry of its fixed term.
1.17 Contrary to what the Applicant claims, he did not apply for any of the advertised posts. The Respondent could not consider him when he had not applied for the post.
1.18 The Respondent is also bound by its own policy when it comes to appointing Foreign Nationals.
1.19 The Respondent wanted the matter to be dismissed.
SURVEY OF EVIDENCE AND ARGUMENT
E. APPLICANT’S EVIDENCE AND ARGUMENTS
MrLAZARUS MUTUPA.
1.20 The Applicant was given a letter advising him that his contract was coming to an end, and further that he had to apply for the advertised posts. (p 16, and 69 of bundle).
1.21 He applied and on the 17 November 2014 he was invited for an interview( p70), for the post reference 10/2015.,
1.22 When he was not called when the College reopened, he approached MrMothapo, the General Manager, who told him that his permit was not ok. He brought his permit and he was then told that the College was full.
1.23 He disputed that the post that he applied for is the one that the Respondent is submitting on page 64 because that post has a different reference, SC 17/2015, and not 10/2015.
1.24 He also added that the respondent could not expect him to attend on the 16 October 2014 when he was told to apply on the 27 October 2014 ( p 69) asked to come for the interview on the 17 November 2014 (p 70).
1.25 He is the holder of a scarce skills permit.
1.26 Under cross examination the Applicant conceded that it will be fair to appoint the successful candidate as the one with the highest score. On the list of results that he has submitted (p72) however, there are at least 3 other candidates that scored above him.
1.27 He disputed that the successful candidate, MrMaluleka, was appointed to the post that he applied for because it has a different reference number.
1.28 He conceded again that the post he applied for in (p 52), with reference SC 17/2014, was the post that he applied for because it also has the same job description.
1.29 He saw the advertisement and applied for that post. He could not explain why his name was not on the list on the names that appear on (p 56), but insisted that he had applied, and for post 10/2015.
1.30 The Applicant agreed that the memorandum on (p18-19) was received by him on the 15 July 2015. He also agreed that the advertisements of posts contained on (p 47-55) were as a result of the memorandum from the Principal, DrMashele.
1.31 He also agreed that there is a Policy regulating the appointment of Foreign Nationals (p 26-34).
F. RESPONDENT’S EVIDENCE AND ARGUMENTS
Mr MAMOCHITE GEORGE MOTHAPO
1.32 The witness submitted that it was the first time he sees the document on (p 72) but that even on that document, the Applicant would not be the best candidate.
1.33 The purpose of the memorandum was to inform staff, especially temporary staff, about the legal precepts that apply to their appointments.
1.34 The first one is that those who were appointed but did not meet the minimum requirements would be required to show that they do meet the minimum requirements.
1.35 The second was to inform Foreign Nationals that their posts will be advertised and filled with South African Nationals who are suitable for the posts.
1.36 The Respondent submitted that the Applicant was appointed in a temporary capacity because at the time of his appointment, he did not have permanent residence status and thus could not be appointed permanently, and that there was no South African who hadsuitable qualifications to be appointed.
1.37 The Respondent has now found a suitable candidate in Mr Maluleka, who was appointed from the 01 February 2015 (p35).
1.38 The College opened on the 05 January 2015 due to registrations. The classes were going to start on the 01 February 2015.
1.39 The Applicant could not be considered because he did not apply because he was not captured on the document that shows the people who apply for any post with the College (p56).
1.40 The policy stated (p 30), that the appointment of South Africans was a priority. It is not that the Applicant is a last resort, but that the College found a suitable candidate.
1.41 Under cross examination the witness submitted that the application for permanent residence is made through the Home Affairs Department, and the Applicant did not ask for assistance in the form of a letter, not even through the Union, from the College to assist him get permanent residence.
1.42 The Applicant could not establish a reasonable expectation to be appointed. The Respondent was fair from the beginning. There was a memo sent out to prepare the staff, in July and October 2014.
1.43 There is no confusion regarding the advertised posts. Post 10/2015 and post SC 17/2014 is one post that is explained in the job description and the College also knows about the posts when they conduct interviews.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.44 Due regard is made to the provisions of sections 186, 192 and the Code of Good Practice Dismissals, as well as the Arbitration guidelines contained the Labour Relations Act 66 of 1995, (the Act).
1.45 The parties also submitted written submissions which I have also considered when arriving at these findings.
1.46 I have also referred to relevant case law which is applicable to this matter.
1.47 The issue in dispute is whether the Applicant had a reasonable expectation that his contract will be renewed in terms of Section 186 (1) (a) (i) of the Act.
1.48 There is no dispute that the Applicant has been placed on a number of contracts with the Respondent. There is no dispute is the reason why the Applicant was placed on these fixed term contracts; he is a Foreign National, whose were always going to be fixed or temporary unless he obtained permanent residence status.
1.49 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 its term. Such termination does not constitute a dismissal’.
1.50 In the case Independent Municipal And Allied Trade Union 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 their contracts would be renewed…’.
1.51 The Applicant has not submitted any reason showing an expectation of further renewal.
1.52 There was a memorandum circulated that clearly advised the staff that their posts will e advertised.
1.53 The reasons for the advertisement of their posts were given and a further explanation was also provided for Foreign Nationals.
1.54 There is also clear policy directives that regulate the filling of posts and the Applicant has acknowledged that in the case where there is a foreign National and a South African, the South African will get preference.
1.55 There was a further Notice and an invitation to apply for these posts and the Applicant failed to apply.
1.56 This is where the Applicants case unravels.
1.57 The Respondent has independent record of all the people who applied, and the Applicant is not one of them.
1.58 The Applicants submission that the applied for a different post is contradicted by his admission during cross examination that he applied for the post SC 17/2014, however this is different to post 10/2015.
1.59 I can therefore not concur with the Applicant when he says he applied for post 10/2015 when he agrees that he applied for post SC 17/2014.
1.60 Another fact that destroys the Applicant’s reasonable expectation claim is the fact that if we accept his version of the process, he was interviewed and scored, but he is not the best candidate according to the scores he provided. It will be difficult to see where the expectation lies when he was not even the best candidate.
1.61 The Applicant has therefore failed to establish the reasonable expectation that he says he expected to have his contract renewed when he was given adequate notice of the expiry of his contract and he failed to at least apply so that he can be considered.
In these circumstances I make the following award
G. AWARD.
1.62 The fixed term contract of the Applicant came to an end by operation of law at the end of its term.
1.63 The Applicant has therefore failed to establish a reasonable expectation that his contract will be renewed.
1.64 The matter is consequently dismissed.
1.65 There is no order as to costs.
(signed)PANELIST
THABE PHALANE