PSES154-15/16NW
PSES154-15/16NW
Award Date:
30 August 2015
Case Number: PSES154-15/16NW
Province: North West
Applicant: Makupu Lydia Gondyane
Respondent: Department of Education North West
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Bojanala District Office at 102 Oliver Tambo Street, Rustenburg.
Award Date: 30 August 2015
Arbitrator: E Maree
Panellist E Maree
Case Number: PSES154-15/16NW
Date of Award : 30 August 2015
In the ARBITRATION between
Makupu Lydia Gondyane
Applicant
and
Department of Education – North West Respondent
Applicant’s Representative In Person
Applicant’s Address P.O. Box 4824
Golden Pond
Pretoria North
Respondent’s Representative Ms. L. Lejaka
Respondent’s Address Fax [018] 388 2590
DETAILS OF HEARING & REPRESENTATION
1The matter was heard on the 18th of August 2015 at the Bojanala District Office at 102 Oliver Tambo Street, Rustenburg.
2. The applicant acted on her own behalf while the respondent was represented by Ms. L. Lejaka an official from Labour Relations.
3. The respondent’s bundle was not disputed. The applicant submitted no documents.
ISSUES TO BE DECIDED
4. Whether the dismissal of the applicant was substantively and procedurally fair and determine appropriate relief if it was not.
BACKGROUND T OTHE ISSUE
5. The applicant, an educator, had been employed by the respondent from the 1st of March 2015 until the 27th of May 2015 and received remuneration to the amount of R16 574, 00.
6. The applicant contented that her dismissal was effected summarily and without a fair reason whilst the respondent claimed that the applicant was a temporary educator and that the period of employment was determined by the ‘’2nd PPM’’.
SURVEY OF EVIDENCE AND ARGUMENT
The evidence/submissions/arguments of all witnesses are summarised and not repeated verbatim. Only those parts deemed relevant in order to determine this matter are reflected.
THE RESPONDENT’S EVIDENCE
On behalf of the respondent, ISMAEL MFASO under oath testified that:
7. He is a manager and knows the applicant who had worked at Mmadikete Intermediate School from the 1st of March 2015.
8. The school employed the applicant as the ‘’PPM’’ received during October 2014 indicated that there was a need for 19 educators.
9. During January 2015 the school applied for the annexure which is a document that forms the basis for the employment of temporary educators in the event of a shortage of educators.
10. The applicant was therefore employed based on the annexure received during October 2014.
11. The annexure however, can change, based on the statistics of learners enrolled and this would change the need for educators that could then be for more or for less educators.
12. In the event that there is a need to employ fewer educators, the services of those whose services are not needed would be terminated.
13. Pages 16 & 17 of the bundles respectively how 15 and 19 posts. Therefore based on the information on page 16 there was only a need for 15 educators.
14. The applicant did not complete a contract that would end on the 31st of December 2015 as she was only a temporary educator and only completed an ‘’assumption of duty’’. This document is completed when an educator is only temporary and ‘’on annexure’’ and has no start or end date.
15. The conditions of work and thus continued employment are dependent on the 2nd PPM.
16. He never told the supplicant that the contract would continue until the 31st of December 2015 and she had not completed a contract to that effect.
TSHOLOFELA NIKA testified under oath that
17. He is at the area office at Letlabile and work with the documents of temporary educators.
18. Annexure ‘’D’’ is submitted to the district for approval where after it is given to the principal to find educators.
19. Temporary educators complete an application form and an assumption of duty form but sign no contract.
20. Pages 16 & 17 show that Mmadikete qualified for 19 posts during December 2014 but on the 1st of January 2015 only qualified for 15 posts. The number of posts depends on the number of learner enrolments.
DAVID MOTOMA testified under oath that
21. He is the Circuit Manager at Lethabile area office since 1992.
22. Temporary educators do not complete contracts but only complete application forms and an assumption of duty if Annexure ‘D’ is approved. These two documents do not show a beginning and an end date.
THE APPLICANT’S EVIDENCE
On behalf of the applicant, MAKUPU LYDIA GONYANE testified under oath as follows:
23. On the 1st of March 2015 she was called by the acting deputy principal, Mr. Tshipe and requested to work at Mmadikete School as there was an urgent need for an English teacher. She then commenced working on the 2nd of March 2015.
24. She was at the office with Mr. Tshipe, Ms. Leon and Ms. Stevens. She was given application forms to complete with Annexure ‘D’ [assumption of duty] and her banking details.
25. Mr. Tshipe told them the contract would ‘’last’’ until December and said that as Mmadikete was merging with another school he would write a letter of recommendation to ensure they were recommended for permanent posts if after the merger there are such posts.
26. Mr. Tshipe did not tell them that their contracts would only be for ‘’2 to 3 months’’ or that it depends on the PPM.
27. Mr. Tshipe told them that he was waiting for the PPM and the annexure and would call them when it was received. He then told her that he had received the PPM and the annexure and ‘’could hire people’’.
28. Mr. Tshipe explained that if he ‘’calls people’’ without a PPM and annexure he would have to ‘’pay you out of my own salary’’ and could therefore not risk it
29 She did not meet the acting principal Mr. Mfusi but only spoke telephonically to him when she enquired about her salary. He also did not tell her of PPM or the annexure.
30. On the ‘’27 or 28th of May’’ after school, Mr. Mfusi called her and told her to call Ms. Leon and Ms Stevens. They then went to his office and he informed them that their contracts were terminated and the next day [Friday] would be their last day of work.
CLOSING ARGUMENTS
31. Brief oral closing arguments were submitted at the conclusion of the arbitration. If necessary, relevant parts thereof would be reflected during the analysis of evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. The applicant rendered services at Mmadikete School during the period 2 March 2015 to 29 May 2015.
33. According to the evidence submitted on behalf of the respondent these services were rendered on a temporary basis and was based on the post establishment model. In terms of the information provided during December 2014 the school qualified for 19 posts [page 17] but this was changed to 15 posts [page 16] during January 2015.
34. It was submitted that the posts allocated to a school are based on the number or enrolments and therefore, a change in the number of enrolments affect the appointment of educators that can then either be increased or decreased. The applicant as temporary educator thus rendered services based on the original post allocation of 19 posts but when the final number of 15 was received it was necessary to terminate her services as there was no longer a post for her.
35. The respondent’s witnesses testified that no contract of employment was signed but only an ‘’assumption of duty’’ reflecting no dates.
35. The applicant submitted that she was never made aware that her services was only for 2 or 3 months and claimed she was informed by Mr. Tshipe [in the presence of two co-employees] that their contracts would be until the end of December 2015. She submitted that they were also informed that due to the merger between Mmadikete and another school their permanent appointments would be recommended if such permanent positions were created due to the merger. The applicant further submitted that they were not informed that their continued employment is dependent on the PPM.
36. The applicant however, also submitted during evidence in chief that Mr. Tshipe informed them that he was waiting for the PPM and the annexure and would call them if he receives the documents. According to the applicant Mr. Thsipe told them that if he made appointments without the PPM and the annexure he would have to pay them from his own salary and that he could not risk it.
37. It seems from the applicant’s own evidence and despite her protestations of ‘’not knowing’’ that she was aware that there exist a PPM and annexure and that this would form the basis of her appointment. The applicant referred to one telephonic conversation between herself and Mr. Tshipe during which she was told to ‘’come and work’’ which she did as from the next day. It seems from her evidence that the next contact was on the day she reported for duty which was the day they were made aware of the PPM and the annexure.
38. The applicant painted this conversation regarding the PPM and the annexure in such a way as to create the impression that the reference thereto was that all the documents was in place thus their appointment because if not in place they would not be appointed and Mr. Tshipe would have to pay their salaries. She elaborated on this version during cross-examination of Mr. Mfaso and stated that she had been told by Mr. Tshipe that all the documents were in place and that she was thus appointed.
39. Mr. Mfaso disputed this version and reiterated that the number of post allocations was changed and that he was not present during the meeting. The applicant failed to call Mr. Tshipe and/or the two colleagues who were apparently at the meeting and who could have supported her version that the documents were in place and their appointments thus sanctioned. Even if Mr. Tshipe was unwilling to testify the applicant still had recourse to her colleagues whose services were terminated with hers and who would most probably assist her by supporting her version.
40. However, even in the absence of evidence supporting the applicant’s claim regarding the specifics of the conversation, I accept that there was indeed a conversation regarding the PPM and the annexure and that this conversation revolved around the fact that the continuation of employment is dependent of the final such documents and that this was not yet available as the latter fact is borne out by the evidence presented on behalf of the respondent.
41. The applicant was aware that her appointment was based on the final documents [that had not been received] and thus that there was not fixed appointment. It is my view that her evidence regarding the date of 31 December 2015 and even the expectation of permanent appointment is not only opportunistic but also unsubstantiated.
42. It thus is probable that there existed a fair reason for the dismissal of the applicant as her continued employment was dependent on a suspensive condition [the final post allocation] that had not been fulfilled as the number of post had been reduced in the final approved documents.
43. As to the procedure followed it is abundantly clear that none was followed. The applicant and two colleagues were called to the office [on Thursday the 28th of May 2015] and unceremoniously informed that there services were terminated with effect from the next day, Friday, the 29th of May 2015. There was no adherence to any procedure recognised in law as fair nor any notice given as required.
44. The dismissal of the applicant although substantively fair was procedurally unfair.
FINDING
The dismissal of the applicant was substantively fair but procedurally unfair.
REMEDY
The applicant initially indicated that she wanted to be reinstated or paid the full amount she would have been paid until the date the contract was supposed to terminate that according to her would have been on the 31st of December 2015.
She however, during the arbitration accepted that there is no post and that reinstatement could not be ordered.
As there is also no evidence that the contract was to last until the 31st of December 2015 this claim can also not be honoured.
Compensation is regulated by section 193[1] [c] of the LRA to order that states:
[1] “If the Labour Court or arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or arbitrator may –
[c] Order the employer to pay compensation to the employee.”
Section 194 limits compensation and states as follows:
“ The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
The applicant earned R16 547, 00 per month on the date of dismissal, had been employed by the respondent for a period of approximately 3 months and had been unemployed since the dismissal during May 2015 thus a period of approximately 3 months.
In considering compensation that is just and equitable I have taken into account the applicant’s period of service as well as the fact that the dismissal was only procedurally unfair.
In view of this I deem it just and equitable to award the applicant compensation equivalent to 1 months’ remuneration.
The applicant is also entitled to be paid one weeks’ notice and this amount is to be paid in addition to the one months’ compensation.
AWARD
I therefore make the following award:
“The respondent, THE DEPARTMENT OF EDUCATION – NORTH WEST is ordered to pay the applicant, MAKUPU LYDIA GONYANE, compensation to the amount of R16547, 00 as well as one weeks’ notice to the amount of R3821, 47 [R16547, 00 ÷ 4.33];
The payment of the compensation [R16547, 00] as well as the payment of one weeks’ notice [R3821, 47] to be effected within 14 days from the date on which this award is served on the respondent’’.
DATED AT PRETORIA ON THIS 30th DAY OF AUGUST 2015
PANELIST
E MAREE
Province: North West
Applicant: Makupu Lydia Gondyane
Respondent: Department of Education North West
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Bojanala District Office at 102 Oliver Tambo Street, Rustenburg.
Award Date: 30 August 2015
Arbitrator: E Maree
Panellist E Maree
Case Number: PSES154-15/16NW
Date of Award : 30 August 2015
In the ARBITRATION between
Makupu Lydia Gondyane
Applicant
and
Department of Education – North West Respondent
Applicant’s Representative In Person
Applicant’s Address P.O. Box 4824
Golden Pond
Pretoria North
Respondent’s Representative Ms. L. Lejaka
Respondent’s Address Fax [018] 388 2590
DETAILS OF HEARING & REPRESENTATION
1The matter was heard on the 18th of August 2015 at the Bojanala District Office at 102 Oliver Tambo Street, Rustenburg.
2. The applicant acted on her own behalf while the respondent was represented by Ms. L. Lejaka an official from Labour Relations.
3. The respondent’s bundle was not disputed. The applicant submitted no documents.
ISSUES TO BE DECIDED
4. Whether the dismissal of the applicant was substantively and procedurally fair and determine appropriate relief if it was not.
BACKGROUND T OTHE ISSUE
5. The applicant, an educator, had been employed by the respondent from the 1st of March 2015 until the 27th of May 2015 and received remuneration to the amount of R16 574, 00.
6. The applicant contented that her dismissal was effected summarily and without a fair reason whilst the respondent claimed that the applicant was a temporary educator and that the period of employment was determined by the ‘’2nd PPM’’.
SURVEY OF EVIDENCE AND ARGUMENT
The evidence/submissions/arguments of all witnesses are summarised and not repeated verbatim. Only those parts deemed relevant in order to determine this matter are reflected.
THE RESPONDENT’S EVIDENCE
On behalf of the respondent, ISMAEL MFASO under oath testified that:
7. He is a manager and knows the applicant who had worked at Mmadikete Intermediate School from the 1st of March 2015.
8. The school employed the applicant as the ‘’PPM’’ received during October 2014 indicated that there was a need for 19 educators.
9. During January 2015 the school applied for the annexure which is a document that forms the basis for the employment of temporary educators in the event of a shortage of educators.
10. The applicant was therefore employed based on the annexure received during October 2014.
11. The annexure however, can change, based on the statistics of learners enrolled and this would change the need for educators that could then be for more or for less educators.
12. In the event that there is a need to employ fewer educators, the services of those whose services are not needed would be terminated.
13. Pages 16 & 17 of the bundles respectively how 15 and 19 posts. Therefore based on the information on page 16 there was only a need for 15 educators.
14. The applicant did not complete a contract that would end on the 31st of December 2015 as she was only a temporary educator and only completed an ‘’assumption of duty’’. This document is completed when an educator is only temporary and ‘’on annexure’’ and has no start or end date.
15. The conditions of work and thus continued employment are dependent on the 2nd PPM.
16. He never told the supplicant that the contract would continue until the 31st of December 2015 and she had not completed a contract to that effect.
TSHOLOFELA NIKA testified under oath that
17. He is at the area office at Letlabile and work with the documents of temporary educators.
18. Annexure ‘’D’’ is submitted to the district for approval where after it is given to the principal to find educators.
19. Temporary educators complete an application form and an assumption of duty form but sign no contract.
20. Pages 16 & 17 show that Mmadikete qualified for 19 posts during December 2014 but on the 1st of January 2015 only qualified for 15 posts. The number of posts depends on the number of learner enrolments.
DAVID MOTOMA testified under oath that
21. He is the Circuit Manager at Lethabile area office since 1992.
22. Temporary educators do not complete contracts but only complete application forms and an assumption of duty if Annexure ‘D’ is approved. These two documents do not show a beginning and an end date.
THE APPLICANT’S EVIDENCE
On behalf of the applicant, MAKUPU LYDIA GONYANE testified under oath as follows:
23. On the 1st of March 2015 she was called by the acting deputy principal, Mr. Tshipe and requested to work at Mmadikete School as there was an urgent need for an English teacher. She then commenced working on the 2nd of March 2015.
24. She was at the office with Mr. Tshipe, Ms. Leon and Ms. Stevens. She was given application forms to complete with Annexure ‘D’ [assumption of duty] and her banking details.
25. Mr. Tshipe told them the contract would ‘’last’’ until December and said that as Mmadikete was merging with another school he would write a letter of recommendation to ensure they were recommended for permanent posts if after the merger there are such posts.
26. Mr. Tshipe did not tell them that their contracts would only be for ‘’2 to 3 months’’ or that it depends on the PPM.
27. Mr. Tshipe told them that he was waiting for the PPM and the annexure and would call them when it was received. He then told her that he had received the PPM and the annexure and ‘’could hire people’’.
28. Mr. Tshipe explained that if he ‘’calls people’’ without a PPM and annexure he would have to ‘’pay you out of my own salary’’ and could therefore not risk it
29 She did not meet the acting principal Mr. Mfusi but only spoke telephonically to him when she enquired about her salary. He also did not tell her of PPM or the annexure.
30. On the ‘’27 or 28th of May’’ after school, Mr. Mfusi called her and told her to call Ms. Leon and Ms Stevens. They then went to his office and he informed them that their contracts were terminated and the next day [Friday] would be their last day of work.
CLOSING ARGUMENTS
31. Brief oral closing arguments were submitted at the conclusion of the arbitration. If necessary, relevant parts thereof would be reflected during the analysis of evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. The applicant rendered services at Mmadikete School during the period 2 March 2015 to 29 May 2015.
33. According to the evidence submitted on behalf of the respondent these services were rendered on a temporary basis and was based on the post establishment model. In terms of the information provided during December 2014 the school qualified for 19 posts [page 17] but this was changed to 15 posts [page 16] during January 2015.
34. It was submitted that the posts allocated to a school are based on the number or enrolments and therefore, a change in the number of enrolments affect the appointment of educators that can then either be increased or decreased. The applicant as temporary educator thus rendered services based on the original post allocation of 19 posts but when the final number of 15 was received it was necessary to terminate her services as there was no longer a post for her.
35. The respondent’s witnesses testified that no contract of employment was signed but only an ‘’assumption of duty’’ reflecting no dates.
35. The applicant submitted that she was never made aware that her services was only for 2 or 3 months and claimed she was informed by Mr. Tshipe [in the presence of two co-employees] that their contracts would be until the end of December 2015. She submitted that they were also informed that due to the merger between Mmadikete and another school their permanent appointments would be recommended if such permanent positions were created due to the merger. The applicant further submitted that they were not informed that their continued employment is dependent on the PPM.
36. The applicant however, also submitted during evidence in chief that Mr. Tshipe informed them that he was waiting for the PPM and the annexure and would call them if he receives the documents. According to the applicant Mr. Thsipe told them that if he made appointments without the PPM and the annexure he would have to pay them from his own salary and that he could not risk it.
37. It seems from the applicant’s own evidence and despite her protestations of ‘’not knowing’’ that she was aware that there exist a PPM and annexure and that this would form the basis of her appointment. The applicant referred to one telephonic conversation between herself and Mr. Tshipe during which she was told to ‘’come and work’’ which she did as from the next day. It seems from her evidence that the next contact was on the day she reported for duty which was the day they were made aware of the PPM and the annexure.
38. The applicant painted this conversation regarding the PPM and the annexure in such a way as to create the impression that the reference thereto was that all the documents was in place thus their appointment because if not in place they would not be appointed and Mr. Tshipe would have to pay their salaries. She elaborated on this version during cross-examination of Mr. Mfaso and stated that she had been told by Mr. Tshipe that all the documents were in place and that she was thus appointed.
39. Mr. Mfaso disputed this version and reiterated that the number of post allocations was changed and that he was not present during the meeting. The applicant failed to call Mr. Tshipe and/or the two colleagues who were apparently at the meeting and who could have supported her version that the documents were in place and their appointments thus sanctioned. Even if Mr. Tshipe was unwilling to testify the applicant still had recourse to her colleagues whose services were terminated with hers and who would most probably assist her by supporting her version.
40. However, even in the absence of evidence supporting the applicant’s claim regarding the specifics of the conversation, I accept that there was indeed a conversation regarding the PPM and the annexure and that this conversation revolved around the fact that the continuation of employment is dependent of the final such documents and that this was not yet available as the latter fact is borne out by the evidence presented on behalf of the respondent.
41. The applicant was aware that her appointment was based on the final documents [that had not been received] and thus that there was not fixed appointment. It is my view that her evidence regarding the date of 31 December 2015 and even the expectation of permanent appointment is not only opportunistic but also unsubstantiated.
42. It thus is probable that there existed a fair reason for the dismissal of the applicant as her continued employment was dependent on a suspensive condition [the final post allocation] that had not been fulfilled as the number of post had been reduced in the final approved documents.
43. As to the procedure followed it is abundantly clear that none was followed. The applicant and two colleagues were called to the office [on Thursday the 28th of May 2015] and unceremoniously informed that there services were terminated with effect from the next day, Friday, the 29th of May 2015. There was no adherence to any procedure recognised in law as fair nor any notice given as required.
44. The dismissal of the applicant although substantively fair was procedurally unfair.
FINDING
The dismissal of the applicant was substantively fair but procedurally unfair.
REMEDY
The applicant initially indicated that she wanted to be reinstated or paid the full amount she would have been paid until the date the contract was supposed to terminate that according to her would have been on the 31st of December 2015.
She however, during the arbitration accepted that there is no post and that reinstatement could not be ordered.
As there is also no evidence that the contract was to last until the 31st of December 2015 this claim can also not be honoured.
Compensation is regulated by section 193[1] [c] of the LRA to order that states:
[1] “If the Labour Court or arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or arbitrator may –
[c] Order the employer to pay compensation to the employee.”
Section 194 limits compensation and states as follows:
“ The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
The applicant earned R16 547, 00 per month on the date of dismissal, had been employed by the respondent for a period of approximately 3 months and had been unemployed since the dismissal during May 2015 thus a period of approximately 3 months.
In considering compensation that is just and equitable I have taken into account the applicant’s period of service as well as the fact that the dismissal was only procedurally unfair.
In view of this I deem it just and equitable to award the applicant compensation equivalent to 1 months’ remuneration.
The applicant is also entitled to be paid one weeks’ notice and this amount is to be paid in addition to the one months’ compensation.
AWARD
I therefore make the following award:
“The respondent, THE DEPARTMENT OF EDUCATION – NORTH WEST is ordered to pay the applicant, MAKUPU LYDIA GONYANE, compensation to the amount of R16547, 00 as well as one weeks’ notice to the amount of R3821, 47 [R16547, 00 ÷ 4.33];
The payment of the compensation [R16547, 00] as well as the payment of one weeks’ notice [R3821, 47] to be effected within 14 days from the date on which this award is served on the respondent’’.
DATED AT PRETORIA ON THIS 30th DAY OF AUGUST 2015
PANELIST
E MAREE