GAAR 003617
GAAR 003617
Award Date:
6 October 1999
Case Number: GAAR 003617
Province: Gauteng
Applicant: MR MODZUKA
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: PRETORIA / CENTURION
Award Date: 6 October 1999
Arbitrator: M DOLLIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003617
In the arbitration between:
MS MODZUKA APPLICANT
and
DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTION:
The arbitration was conducted on 3 May, 17 May, 18 May and 7 September 1999, at the Gauteng Department of Education at 111 Commissioner Street, Johannesburg, on 7 July 1999 at the Soshanguve College, North Pretoria and on 8 July at the ELRC offices in Centurion.
2 . HEARING AND REPRESENTATION:
The applicant, Mr MC Modzuka was represented by Mr Sunil Narian of Cheadle Thompson and Haysom, a firm of attorneys that were instructed by the South African Democratic Teachers Union (SADTU). The Department of Education was represented by Mr Jeff Thipe
3 . BACKGROUND:
.1 Mr Modzuka, in response to and advert in the Pretoria News on the 25th of April 1997, was interviewed by the College during May of that year for a position as a workshop lecturer in the Fitting and Turning Workshop.
.2 Mr Modzuka was telephonically informed after the interview by Mr Prins, the Deputy Principal at the time, that a position would be offered and that Mr Modzuka was to start at the college on the 1st of August 1997.
.3 On the 4th of August 1997, a document was sent by Mrs Grove, that listed a number of positions and the nature of the appointments with the starting dates, to the Department for processing. Mr Modzuka’s position was listed as a temporary, starting date, 1st of August 1997.
.4 The exact nature of the appointment is an issue for this arbitration to determine. According to Mr Modzuka, the position was on a permanent basis, however, according to the College and the Department of Education the position was initially of an open-ended temporary nature that was later changed to a fixed term temporary contract. This was determined with notice on the 31st of December 1998.
.5 Mr Modzuka was appointed one week prior to the end of the second trimester in 1997 and continued to work till the end of second trimester in 1998.
.6 During his employment Mr Modzuka made several staff matter enquiries, two of which were presented during the arbitration.
.7 These addressed two issues:
3.7.1 A letter of appointment was not issued, and
3.7.2 Pension fund deductions were not effected.
.8 These were processed at the satellite campus for the attention of Mrs Grove at the main campus. However, no responses were received to these enquiries.
.9 A request was made to extend contracts in January of 1998 when employees on open ended temporary contracts did not receive their salaries. Mr Modzuka’s contract fell into this category, as he was not paid at the end of January 1998.
.10 Mr Modzuka attended a course in Japan that was approved by the Principal. The course started on the 6th of January 1998 and ended on the 10th of March 1998.
.11 On the 23rd of March 1998, a circular was addressed to, among others, Rectors of Colleges and Educators. Mr Modzuka denied knowledge of this circular that contained information of the status of educators employed in a temporary capacity with open-ended contracts.
.12 On the 31st of March 1998, a request was sent to Mrs Konig by Mrs Grove, extending the contract of Mr Modzuka with other employees. These requests for extensions were open ended as time frames were not stated therein.
.13 Mr Modzuka, was then presented with a signed contract on the 25th of May 1998, stating that his services would be terminated on the 30th of June 1998. This was in line with the Department circular addressed above.
.14 Prior to this, no other documents were signed by Mr Modzuka, indicating the nature of employment or period of employment.
.15 On the 22nd of June 1998, prior to the expiry of the contract, of Mr Modzuka on the 30th of June 1998, the college requested an extension of the contract to the 30th of August 1998. This contract was extended to the 31st of December 1998, unbeknown to the College or to Mr Modzuka. This had surfaced later as a result of Mr Modzuka’s enquiries at the Department.
.16 Mr Modzuka then received a letter from the college, dated 30 July 1998, stating that his services were terminated. This he received on the 11th of August 1998. The date affecting the termination was to be the 31st of August 1998. The Modzuka assumed it was for him as it arrived with other documentation addressed to him. The other documents were the contracts of employment that indicated his employment till the end of June 1998 (signed on the 25th of May 1998) and the request for an extension to the 30th of August 1998, addressed to Mrs Konig.
.17 On receipt of this document Mr Modzuka went to see Mr Mabena at his home. At that meeting he met Mr Mbokane and Mr Seema. Mr Mbokane was at that stage the Divisional Head of Engineering Studies.
.18 Mr Modzuka addressed his queries to Mr Mbokane. According to Mr Modzuka, Mr Mbokane stated that he was unaware of what was happening at the satellite campus and signed the letter only as part of the management.
.19 Mr Modzuka then referred his query to the administration of the satellite campus, Mr Orsmond and Mr Mokoena. Their response was that the Department had cancelled the contract and there was nothing further for them to do.
.20 Mr Modzuka then called the Department directly who had informed him that he was still on the system and was unaware of the termination.
.21 On 1 September 1998, Mr Modzuka had a short meeting with various representatives of the college management. According to Mr Modzuka, the following things were said by Mr van Randburg, the Principal:
3.21.1 The Department cancelled the contract and there was nothing the college could do.
3.21.2 That Mr Modzuka was a “time bomb”.
3.21.3 The Department would not be asked to extend the contract, and
3.21.4 That a permanent position was out of the question, on enquiry of Mr Modzuka.
.22 Other aspects of the conversation noted were, that the Principal said that he should not have gone to Japan. Mr Mabena said that he should be removed because he was not capable of anything and that he could not cope in the classroom.
.23 Mr Modzuka was then dismissed from the meeting.
.24 Mr Modzuka then met with Mr Mogale, a Department representative on the 2nd of September 1998 and was later handed a letter indicating that he was not as yet removed from the system at the Department. Thus, the contract could not have been cancelled by the Department.
.25 When this document was brought to the attention of the Principal, Mr van Randburg, he wanted to verify its contents before any further action was to be taken.
.26 Once it was confirmed that the document was valid, Mr Modzuka was reinstated in his post and made an offer to teach any four subjects at the main campus of the College.
.27 This was rejected by Mr Modzuka on the grounds that this was not the post he applied for.
.28 A letter was written by Mr Ngomane to the College which was submitted on the 23rd of September 1999. No responses were forthcoming from the College.
.29 On the 2nd of October, a meeting was held with the college representatives and Mr Modzuka’s union representatives from SADTU, to find a solution to two problems. They were,
3.29.1 the status of Mr Modzuka’s post, and
3.29.2 that he had not accepted the offer to teach at the main campus.
.30 It was agreed that Mr Cassel would be approached to tach at the main campus and Mr Modzuka would resume duty at the workshop. This was subject to the acceptance of Mr Cassel of this arrangement.
.31 A follow up meeting was held on the 7th of October 1998. Among other issues the following was decided:
3.31.1 Due to the fact that Mr Cassel had refused for the sake of one person, Mr Modzuka would be assigned to assist Mr Mabena, and a meeting would be held to correct the relationship between the Principal and Mr Modzuka. That meeting did not take place.
.32 Mr Modzuka was presented with another contract indicating his position as a temporary educator and that termination would be effective as at the 31st of December 1998. This document was signed by Mr Modzuka on the 29th of October 1998.
.33 On the 1st of December 1998, Mr Modzuka received a letter from the Department, stating that his contract to the 31st of December 1998, would not be renewed. A dispute was then lodged with the ELRC for resolution. A conciliation was held without success and the parties agree to final and binding arbitration.
4 . ISSUE AND POWERS:
.1 The dispute before me concerns the alleged unfair dismissal of Mr Modzuka from the Soshanguve College of Vocational Education. The complainant claims that the dismissal was both procedurally and substantively unfair. My powers are to determine whether in fact the dismissal was fair or not and make an appropriate award regarding the remedy available to Mr Modzuka.
5 . EVIDENCE PRESENTED FOR THE APPLICANT:
.1 Mr Modzuka appeared as the first witness.
.2 When presented with contracts to sign in May 1998 and October 1998, Mr Modzuka enquired as to the nature of his employment. The explanation he was provided with, was that the payment of salary was dependent on it being signed and had nothing to do with his position. Further, Mr Ngomane of the South African Democratic Teachers Union, advised Mr Modzuka to sign the one presented in October and provided Mr Modzuka with the same reason as stated before, the payment of salary. Further, Mr Modzuka testified that according to Mr Ngomane, the contract would have no effect on his appointment.
.3 Further, with respect to the May contract, Mr Modzuka said that he had signed the contract because they did not want to be out of the system.
.4 With respect to the notice terminating his services on the 31st of August 1998, Mr Modzuka denied knowledge of the agreement being held and therefore was surprised at the termination.
.5 On Mr Modzuka’s return to the College in September, he denied any knowledge of and offer being made to teach any four subjects at the main campus and in his version indicated that, with reference to the timetable that he was asked to me Mr X, a position predetermined by management.
.6 Under cross examination the following aspects were addressed:
5.6.1 Mr Modzuka was not a teacher by profession and in fact he did not meet the minimum requirements to be appointed to the position form the advertisement that was placed.
5.6.2 Mr Modzuka’s application was completed on 12 May 1997, on the same day that the interview took place. However, Mr Modzuka met with members of the interviewing panel prior to the interview and also admitted knowing some of them.
5.6.3 When Mr Prins called to inform Mr Modzuka of the appointment after the interview, Mr Modzuka testified that Mr Prins, said the following:
5.6.3.1 “Congratulations, you have succeeded in the interview and appointed as a permanent lecturer.”
5.6.4 When Mr Modzuka reported for duty on 1 August 1997, he met with Mr Cassel and other where Mr Prins clarified the status of a permanent post.
5.6.5 Mr Modzuka was questioned as to why he only enquired why an appointment letter and pension fund deduction were not attended to on the 10th of November 1997, three months after appointment, to which he replied because it was at this stage that he had started to worry.
5.6.6 With respect to the contract signed on the 29th of October 1998 for the period, 1 July 19998 to 31 December 1998, Mr Modzuka says that he had conferred with his union representative and that the reason for the contract was for the payment of salary. A reason consistent with the one supplied by Management, according to Mr Modzuka. The union representative, Mr Ngomane, according to Mr Modzuka, did not place any pressure on him to sign the document.
.7 Other incidental matters:
5.7.1 Mr Modzuka was called on to assist at the main campus to lecture as a result of staff shortages there. This was considered a temporary measure and if such shortages were experienced again Mr Cassel would be asked to assist, not Mr Modzuka.
5.7.2 During the employment of Mr Modzuka at the college, he performed carious tasks. One such task was that of a project coordinator of a joint project between the Department of Public Works and the College and signed the correspondence between the parties as “Lecturer” and “Project Coordinator”.
5.7.3 Mr Johny Radebe, was the second witness for the complainant, who was an office bearer of SADTU and a deputy principal. Mr Modzuka approached him in the presence of Mr Ngomane with regard to the contract that was presented during October of 1998.
5.7.4 According to Mr Radebe, Mr Ngomane had indicated that the contract was for the purposes of salary payment only. However, under cross examination and as a deputy principal, Mr Radebe stated that permanent employees were not asked to sign this type of contract for any reason and that he had presented similar contracts to temporary employees. Furthermore, Mr Radebe said that in his opinion, Mr Ngomane had not advised Mr Modzuka correctly.
5.7.5 Mr Isaac Dibakwane an office bearer of SADTU, was the third witness for the complainant, and was approached by Mr Modzuka to assist him with respect to the dismissal. According to Mr Dibakwane the post Mr Modzuka applied for was advertised and therefore, it was permanent in nature.
5.7.6 Mr Dibakwane also questioned the move of Mr Modzuka to the main campus to lecture and Mr Modzuka’s refusal of this as being justified as he had not been employed for that purpose. Mr Dibakwane also alluded to the proposition that the treatment of Mr Modzuka was racially based and therefore he was being victimised.
5.7.7 Under cross examination, Mr Dibakwane stated that he was not aware of the position, Mr Modzuka was appointed in. The contract that was signed by Mr Modzuka on 29 October 1998, was sent to so called “unprotected educators” who joined the Department after the 30th of June 1996.
5.7.8 On being presented with Mr Modzuka’s letter of appointment that was dated, 2 September 1998, Mr Dibakwane indicated that if he had been made aware of the contents of the letter, it would have changed the nature of the discussion with respect to Mr Modzuka’s position.
5.7.9 Under re-examination of Mr Dibakwane, the question of the date of the letter of appointment was addressed as it looked as though the letter could have been backdated.
5.7.10 Mr Dibakwane also said that if there had been a delay in issuing the letter of appointment, it would have been done at the very latest two months after the date of appointment.
6 . EVIDENCE PRESENTED FOR THE DEPARTMENT:
.1 The first witness for the Department was Mr Konig. Mrs Konig’s testimony centered around the nature of appointment of Mr Modzuka. According to her he was appointed on a temporary basis, in accordance with the request of the College.
.2 They were:
6.2.1 Permanent appointment
6.2.2 Substitute appointment
6.2.3 Temporary appointment
.3 There was difficulty in the third type of appointment as no fixed date was set for the termination of the appointment and therefore it was regarded as an open-ended temporary contract. Mrs Konig indicated that as of April 1998, this had been addressed and all temporary appointments were closed fixed term contracts. This was in pursuance of trade union objections to a nature of a temporary appointment. Therefor all educators appointed on a temporary basis where given contracts to sign that had fixed dates of termination, as was done with Mr Modzuka. The contracts he had signed in 25 May 1998 and 29 October 1998, was in compliance with the requirement of the department regulations as noted in circular 29 of 1998. Also had Mr Modzuka been appointed on a permanent position he would have been given a different letter of appointment from the one that was dated, 2 September 1998.
.4 Under cross examination, Mrs Konig could not confirm or deny that a letter of appointment was sent to Mr Modzuka or the college, on his appointment.
.5 Further, that the contract sent to Mr Modzuka during May and October 1998, was sent as extensions of his original temporary appointment. Contract issued to temporary educators were in line with policy changes affected through circular 29 of 1998, dated 23 March 1998.
.6 Mrs Konig also stated that the letter of appointment given to MR Modzuka on, 2 September 1998, must be rad in conjunction with the contracts provide and not in isolation of them, thus indicating the date of termination.
.7 The letter ostensibly sent by Mrs Grove to Mrs Konig, requesting an extension of Mr Modzuka’s contract to 31 August 1998, must also be considered in light of the fact that schools and colleges operate on semester and trimester basis respectively and thus Mr Modzuka’s contract would have been extended on a semester basis, even though it was requested that it be extended to the end of the trimester.
.8 In regard to the date of the letter of appointment, Mrs Konig had no response as to why the letter were dated a year and a month after appointment.
.9 Mr Modzuka, was sent a notice indicating that his appointment would expire on, 3 December 1998. This was a general letter sent to all temporary educators whose employment contracts were going to expire and would not be renewed.
.10 Under re-examination of Mrs Konig, she indicated that the College decides whether a post would be temporary or permanent, given among other factors the staff establishment and the number of students. Thus, the Department would not unilaterally appoint or fail to appoint given a request for the College. Further, if the recommendation made by the College was in line with Department policy, the Department would not, necessarily act in contravention of such a request.
.11 The second witness called for the Department was Mr Mbokane. Mr Mbokane did not, according to his evidence, know the circumstances of the appointment of Mr Modzuka, as he only supervised Mr Modzuka from May 1998 to December 1998.
.12 Mr Modzuka’s notice of expiry of the contract was signed by Mr Mbokane and he also confirmed that discussions were held with Mr Modzuka in this regard as referred to in that notice to terminate on, 31 August 1998.
.13 The offer made to Mr Modzuka, in September on his return, to teach any four subjects was clearly recalled without hesitation and he also confirmed that lecturers were given the opportunity to teach subjects they were comfortable with.
.14 According to Mr Mbokane, Mr Modzuka did not cooperate and stormed out of a meeting that was held to discuss his position.
.15 At the meeting of, 2 October 1998, the College tried to solve the issue with SADTU and look for alternatives, however, these could not be found.
.16 Under cross examination the reason for paying, Mr Modzuka to the end of August and not at the 7th of August 1998, when the College trimester ended was questioned at length and the answer provided by Mr Mbokane was that it was not for humane reason. This was not consistent with Department policy.
.17 With respect to the discussion referred to between Mr Modzuka and the College management regarding the expiry of the contract, on 31 August 1998, Mr Mbokane could not state the date of the discussion as it was an ongoing process.
.18 Mr Mbokane also indicated that on occasion, Mr Modzuka as to how he may be appointed as a permanent staff member.
.19 After the initial termination of the contract on, 31 August 1998, Mr Modzuka went to the Department and retrieved a document, stating that he was still in the employment of the Department and therefore the College was obliged to take him back. This was his letter of appointment that was dated, 2 September 1998.
.20 On the question of Mr Modzuka’s competency to teach and the alleged complaint of the students, Mr Mbokane state that the decision not to renew his contract was not related to competency.
.21 Further with respect to the move of MR Modzuka to the main campus and not Mr Casses. Mr Modzuka maintained that the move of Mr Modzuka was due to the fact that Mr Cassel had established a relationship with the students at the workshop and this could not be interrupted in the third trimester.
.22 Also, the move of MR Modzuka was required and he was a temporary staff member and therefore would be moved where necessary prior to full time employees being moved.
.23 Further, a need existed for him to be at the main campus and as he was employed as a lecturer and should have been competent to lecture at the main campus as well.
.24 Further, under re-examination of Mr Mbokane, he maintained that Mr Modzuka knew that he was temporary because Mr Modzuka cam te Mr Mbokane in 1997, after his appointment and asked how he could be made permanent.
.25 The third witness called by the Department was the rector of the College, Mr Van Rensburg. According to Mr Van Rensburg, Mr Modzuka was employed as a temporary lecturer because there was a possibility that student numbers would increase in the last trimester of 1997.
.26 Mr Van Rensburg was aware of the nature of temporary posts being open ended and also confirmed that Mrs Grove would have informed all employees on appointment what the nature of the position would be. According to Mr Van Rensburg, Mrs Grove did in fact, do this with Mr Modzuka.
.27 Mr Van Rensburg stated with regard to the contracts that were presented to Mr Modzuka during May and October 1998, that all temporary educators either had to accept the terms of the contract or resign in line with circular 29 of 1998.
.28 Mr Van Rensburg indicated that it was the intension of the College to extend the contract of Mr Modzuka, only till the end of the second trimester. However, due to the fact that the Department works on a semester basis for schools, the contract was extended to the 30th of June 1998 and then to the 31st December 1998.
.29 Mr Van Rensburg, also confirmed Mr Modzuka’s position with regard to the option that was provide and corroborated what the previous witness said that Mr Modzuka had refused to elect any four subjects for lecturing at the main campus.
.30 Under cross examination, Mr Van Rensburg said that, Mr Modzuka was removed from classes due to the fact that numerous complaints were received from students. Mr Van Rensburg could also not recall all the details of the events that occurred during June and December of 1998. According to Mr Modzuka, he testified that Mr Van Rensburg said firstly that Mr Modzuka was a “time bomb” and secondly that Mr Van Rensburg would see it that Mr Modzuka was removed form his position. Mr Van Rensburg denied making either of these comments.
.31 With respect to the circumstances that led to the College accepting Mr Modzuka back in September 1998, Mr Van Rensburg confirmed that it was due to the fact that the Department had extended his contract till the end of the year.
.32 Further the question was raised as to why Mr Modzuka was offered to teach any subjects, even though there were doubts as to his ability. Mr Van Rensburg did not respond.
.33 The reason provided as to why Mr Modzuka was appointed on a temporary basis in August of 1997 and not on a permanent basis was because he had come second in the interview and there was a need for another lecturer at the workshop in a temporary capacity.
.34 Mr Van Rensburg, stated that he had instructed Mr Prins to offer Mr Modzuka an appointment after the panel decided that a vacancy existed for a temporary position.
.35 On re-examination of Mr Van Rensburg, he had pointed out that Mr Modzuka, was evaluated. Like all other lecturers, on a regular basis. Where deficiencies were discovered, they were addressed through correctional measures.
.36 Disciplinary action in Mr Modzuka’s case was not instituted and if there were problems that required termination of service only the Department would have the right to do so.
.37 Further, in the case of the status of the employee only the Department can change that status from temporary to permanent and vice versa.
.38 The fourth witness called on behalf of the Department was Mr Prins, who was a member of the panel that interviews Mr Modzuka for a lecturing post for the Fitting and Turning Workshop.
.39 Mr Prins also called Mr Modzuka to inform him of the appointment and the starting date.
.40 Mr Prins stated that he did not know whether Mr Modzuka was aware of the nature of the position or not and that he could not recall whether he had said anything to Mr Modzuka regarding the nature of the appointment.
.41 Mr Prins quite clearly stated that he could not recall ever informing any candidates about the nature of the post they were appointed to, according to him it was a staffing matter.
.42 The fifth witness for the department was Mrs Grove.
.43 On the 4th of August 1991, Mrs Grove sent a document through to the Department, indicating the appointments made and the starting date. Mr Modzuka’s was listed as temporary with a starting date of, 1 August 1997.
.44 Under cross examination, Mrs Grove also testified that she was sure that the document was received by the Department as it was processed. Mrs Grove, under cross examination, stated that she was told what the status of the posts was after discussions with the interview panel.
.45 Mrs Grove also testified that she had also sent two other letters of request for the extension of Mr Modzuka’s contract on instructions of the Divisional Head as the College had further need for the post to be filled.
.46 On Mr Modzuka’s arrival at the College, Mrs Grove could not recall whether he was specifically told what the status of the post was, however, stated that it is normal practice for all new employees to be informed.
.47 Contracts were extended in January 1998 at the request of the College of a few employees because they were all working at the time, salaries were not received and the posts could be justified.
.48 According to Mrs Grove, temporary posts would be open ended till the need for the post fell away, or the post was advertised for permanent position. The Department would usually be notified though it was not necessary to do so while the posts were temporarily filled. In Mr Modzuka’s case the need for the post fell away.
.49 Mr Modzuka was notified that his contract would expire at the end of the second trimester, being 31 August 1998 and had he not been informed, this would not have made a difference to his position, the contract would have expired anyway.
.50 Mr Modzuka was however, reinstated due to the fact that his contract was extended to the end of the year by the Department.
7 . ANALYSIS OF EVIDENCE AND CLOSING ARGUMENTS:
.1 The applicant contends that there were two permanent positions advertised in the Fitting and Turning Workshop and Mr Modzuka was appointed on a permanent basis to the one post. I disagree for two reasons,
7.1.1 Firstly, the advertisement does not state that two or more positions are being filled. It only states “Lecturers” and then the two workshops in which vacancies will be filled are named. I can therefore not conclude that two vacancies existed in the Fitting and Turning Workshop for which Mr Modzuka applied and was interviewed. At best I can conclude that vacancies existed in two different workshops.
7.1.2 Secondly, the applicant was ranked as candidate number two and on this point there was no dispute. I will therefore accept the explanation presented that the applicant was offered a temporary position due to the expectation of an increase in the number of students.
.2 Furthermore the testimony of Mr Prins, that two permanent posts were vacant in the Fitting and Turning Workshop is doubtful. Mr Prins did testify that two appointments were made. That the two were both permanent, was not put beyond doubt as claimed by Mr Narian in his closing argument.
.3 The applicant argues that he was never informed about being temporarily employed, even after enquiring as to the letter of appointment and the failure to deduct pension fund contributions from his salary. There is no clear evidence that Mr Modzuka was never informed.
.4 He contends that Mr Prins informed him that he was appointed as a permanent lecturer when he was telephoned after the interview. Mr Prins in his testimony was quite clear on this point, that it was not his practice to inform successful applicants of the nature of their appointments. Mr Narian agrees with me on this.
.5 Further, Mrs Grove did state that it was policy to inform all applicants what the nature of their appointments is when they start. Though she could not remember if this was done with Mr Modzuka or not. Mr Van Rensburg did corroborate this part of the evidence. He stated that Mrs Grove informed him that she informed Mr Modzuka what the status of his post was.
.6 Further, a document was sent to the Department informing them of the nature of the appointment of Mr Modzuka and others, and of this I am absolutely clear for two reasons.
7.6.1 Firstly, Mr Modzuka was paid a salary. The Department would pay unless a persal number was allocated and they would also not act out of their own without a recommendation from the College.
7.6.2 Secondly, the letter of appointment retrieved by the applicant dated, 2 September 1998, reflects all the details corroborating the letter Mrs Grove says she sent to the Department. That information would have to be sourced from the College.
.7 Mr Modzuka on occasion, did inquire of Mr Mbokane about the possibility of being made permanent. This was brought up twice during the cross examination of Mr Mbokane however, left unchallenged by the Applicant.
.8 Mr Modzuka also alluded to this in his evidence. He said that on, 1 September 1998, when he had a meeting with the College management a number fo issues were addressed among them his enquiry of Mr Van Rensburg what he possibility was that he could be made permanent. To which Mr Van Rensburg replied that, that was out of the question. It was at this meeting that Mr Modzuka claimed that Mr Van Rensburg stated that he was a “time bomb”.
.9 Given this overwhelming evidence and Mr Modzuka’s own admission, his version is to be rejected that he had no knowledge of the status of his appointment.
.10 When asked to sign a contract of employment during May 1998, he had so after the explanation was given to him that it was for the purposes of salary payment only and if he did not sign his salary would not be paid. The same applied to the contract that was signed in October 1998. Mr Modzuka also made the claim that he had signed under duress.
.11 The contract presented to him in May 1998, was handed to him on a Friday. He claimed that he enquired as to the reasons for the contract and was told that it was for the purposes fo salary payment. It is the uncorroborated evidence of the applicant that these enquiries were made prior to him signing.
.12 The claim of duress is also doubtful as the contract was signed and returned the next Monday. Surely he would not have signed after careful consideration and aware, no doubt of its implications, if it incorrectly reflected his position.
.13 Yet, after signing nor further enquiries were made to any person regarding his position.
.14 With regard to the contract signed in October, Mr Modzuka had already at that stage, challenged the nature of the post through his union representative. It was also clear that he was given incorrect advice by Mr Ngomane to sign, as corroborated by Mr Dibakwane.
.15 The reason Mr Modzuka claims for signing the contract being the non-payment of salary is surely to be rejected because there is no evidence advanced at all that he did not receive his salary for June, July, August and September.
.16 He should have therefore rejected the reason for non payment of salary out of hand as he was paid and should also have enquired as to the real reason for the signing of the contract. It is therefore my conclusion that the applicant signed with the knowledge that his position was not permanent.
.17 With regard to the requests for extensions of his contract at various time during January 1998 (January, March and June) and the inconsistencies related thereto, the applicant contends that these so-called requests did not take place due to the fact that no proof existed for sending them or for them having been received by the Department. As stated earlier, the Department acted on these requests and therefore even though no proof was advanced that they were in fact sent, the Department’s representative would not have acted at all had there been no requests. Further I cannot see how that in itself, would affect the status of the applicant’s position.
.18 After the applicant’s initial termination on, 31 August 1998, he was reinstated due to the fact that he produced a letter from the Department stating that he was still in their employment. The applicant contends that the reinstatement was not on the basis of a fixed term contract. The Department generated a contract stating that the applicant was to be employed from, 1 July to 31 December 1998 and this was signed by the applicant. On what possible basis could be the applicant have assumed that he was re-instated on a different basis, for example, a full time permanent appointment?
.19 In examining the applicable legal principles advanced by the applicant, I respectfully agree with the judgment in Smit vs Workmen’s Compensation Commission 1979 (1) Sa 51 (A) that the objective of the contract is one of the most important legal characteristics of the contract of employment. Further, Brassey’s article in the 1990 (1) ILK at 889 considers that the object of the contract should determine its character. The applicability of these principles in this case, lends itself to interpretation as the objective of the contract of employment offered to Mr Modzuka, may have had differing interpretations fo reach of the parties. However, in light of the above facts as adduced in evidence and the weight I have granted to the various testimonies presented, I cannot conclude that Mr Modzuka was absolutely clear in his mind that the contract was one of permanent employment. In fact I can say without hesitation that I believe that the contract was one of a temporary nature.
.20 The same would apply to the extent that the cases were cited of Borcherds vs CW Pearce and J Shewar t/a Luberite Distributors (1993) 14 IJL 1262 (LAC) at 1277 H and Goldberg vs Durban City Council 1970 (3) SA 325 (N)
.21 Proof of the fixed term contract must be established in that the parties must be aware about the nature of the contract particularly with regard to its duration. Department policy of open-ended temporary contracts was certainly repugnant to this principle. However, this was changed and resulted in circular 29 of 1998 after a collective bargaining process was embarked on by the trade unions in the Department to correct the situation.
.22 Circular 29 of 1998 applied to Mr Modzuka and stated clearly that temporary appointments will be terminated with an end date of, 30 April 1998 at par 2. Further, new letters of appointment will be generated with an end date of, 30 June 1998 at par 5. It was also stated that the fixed term contract was a new appointment at par 6.
.23 This does not contradict with the fact that Mr Modzuka was employed in a temporary capacity. It is only his knowledge of the situation that needs to be addressed. It can therefore be concluded that Mr Modzuka’s contract started as one of an open-ended temporary appointment but changed in essence with the signing of a new contract during May 1998 and again in October 1998 to a contract of a fixed duration. Therefore, Mr Modzuka was aware of the new fixed term contract. The cases as cited by the application have reference DeSousa vs Wonder Air (Pty) Ltd. 1995 BLLR 49 (IC) and Mackay and Another vs Comtec Holdings (Pty) Ltd. 1996 BLLR 863 (ic).
.24 It was not claimed at any stage by the College of the Department that Mr Modzuka’s termination as based on misconduct or incapacity.
.25 Mr Modzuka’s denial of the offer made to teach any four subjects on his return to the College in September must be considered in the light that Mr Mbokane, Mr Van Rensburg and Mrs Grove, all testified to this and also a document dated, 16 September 1998 confirms this. In addition the minutes of 2 October 1998 refer to this. Thus, Mr Modzuka’s refusal to accept the offer to teach any four subjects at the College is deemed to be unreasonable.
.26 The decision to terminate Mr Modzuka’s services at the end of the second trimester, it is claimed, was after it had been discussed and agreed to. Though I will accept that Mr Modzuka did not agree to it I am of the opinion that such a discussion was held as evidenced by Mr Mbokane, a more reliable witness. The fact that this was recorded in a letter of notice is also evidence as a contemporaneous document received by Mr Modzuka.
.27 It was also submitted that MR Modzuka could not have been appointed in a permanent position, as he did not meet the minimum requirements of the advertisement. This was clearly addressed in the cross examination of Mr Modzuka’s evidence and was not challenge by the Applicant.
.28 The date of the letter of appointment was also questioned. The 2nd of September 1998, is in all likelihood the date the letter was retrieved from the system. It is not probable that Mr Modzuka’s appointment letter was backdated as all the details are correct and consistent with the letter that Mrs Grove sent to the Department on, 4 August 1997.
8 . FINDING:
.1 After carefully considering all the evidence adduced before me, I find that the version of the facts of the applicant is not consistent and corroboration is spares and at times non existent. Mr Modzuka was warned about being evasive in his answering and I gave his representative and opportunity to consult with him on this.
.2 Nevertheless, the Department would however, not be absolved of its onus to provide a fair reason for the termination and so demonstrate that if followed a fair procedure. This onus I have found to be adequately discharged to render to termination of Mr Modzuka’s temporary fixed tem contract of employment fair as at the 31st of December 1998
MUHAMMED DOLLIE
ARBITRATOR
DATED: 06 OCTOBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER GAAR 003617
APPLICANT MR MODZUKA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL
ARBITRATOR M DOLLIE
DATE OF ARBITRATION 21 MAY 1997
VENUE PRETORIA/CENTURION
REPRESENTATION:
APPLICANT MR SUNIL NARIAN
RESPONDENT MR J THIPE
AWARD:
1 After carefully considering all the evidence adduced before me, I find that the version of the facts of the applicant is not consistent and corroboration is spares and at times non existent. Mr Modzuka was warned about being evasive in his answering and I gave his representative and opportunity to consult with him on this.
2 Nevertheless, the Department would however, not be absolved of its onus to provide a fair reason for the termination and so demonstrate that if followed a fair procedure. This onus I have found to be adequately discharged to render to termination of Mr Modzuka’s temporary fixed tem contract of employment fair as at the 31st of December 1998
DATE OF AWARD 06 OCTOBER 1999
Province: Gauteng
Applicant: MR MODZUKA
Respondent: Department of Education
Issue: Unfair Dismissal - Constructive Dismissal
Venue: PRETORIA / CENTURION
Award Date: 6 October 1999
Arbitrator: M DOLLIE
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER : PSES GAAR 003617
In the arbitration between:
MS MODZUKA APPLICANT
and
DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATOR’S AWARD
1 . INTRODUCTION:
The arbitration was conducted on 3 May, 17 May, 18 May and 7 September 1999, at the Gauteng Department of Education at 111 Commissioner Street, Johannesburg, on 7 July 1999 at the Soshanguve College, North Pretoria and on 8 July at the ELRC offices in Centurion.
2 . HEARING AND REPRESENTATION:
The applicant, Mr MC Modzuka was represented by Mr Sunil Narian of Cheadle Thompson and Haysom, a firm of attorneys that were instructed by the South African Democratic Teachers Union (SADTU). The Department of Education was represented by Mr Jeff Thipe
3 . BACKGROUND:
.1 Mr Modzuka, in response to and advert in the Pretoria News on the 25th of April 1997, was interviewed by the College during May of that year for a position as a workshop lecturer in the Fitting and Turning Workshop.
.2 Mr Modzuka was telephonically informed after the interview by Mr Prins, the Deputy Principal at the time, that a position would be offered and that Mr Modzuka was to start at the college on the 1st of August 1997.
.3 On the 4th of August 1997, a document was sent by Mrs Grove, that listed a number of positions and the nature of the appointments with the starting dates, to the Department for processing. Mr Modzuka’s position was listed as a temporary, starting date, 1st of August 1997.
.4 The exact nature of the appointment is an issue for this arbitration to determine. According to Mr Modzuka, the position was on a permanent basis, however, according to the College and the Department of Education the position was initially of an open-ended temporary nature that was later changed to a fixed term temporary contract. This was determined with notice on the 31st of December 1998.
.5 Mr Modzuka was appointed one week prior to the end of the second trimester in 1997 and continued to work till the end of second trimester in 1998.
.6 During his employment Mr Modzuka made several staff matter enquiries, two of which were presented during the arbitration.
.7 These addressed two issues:
3.7.1 A letter of appointment was not issued, and
3.7.2 Pension fund deductions were not effected.
.8 These were processed at the satellite campus for the attention of Mrs Grove at the main campus. However, no responses were received to these enquiries.
.9 A request was made to extend contracts in January of 1998 when employees on open ended temporary contracts did not receive their salaries. Mr Modzuka’s contract fell into this category, as he was not paid at the end of January 1998.
.10 Mr Modzuka attended a course in Japan that was approved by the Principal. The course started on the 6th of January 1998 and ended on the 10th of March 1998.
.11 On the 23rd of March 1998, a circular was addressed to, among others, Rectors of Colleges and Educators. Mr Modzuka denied knowledge of this circular that contained information of the status of educators employed in a temporary capacity with open-ended contracts.
.12 On the 31st of March 1998, a request was sent to Mrs Konig by Mrs Grove, extending the contract of Mr Modzuka with other employees. These requests for extensions were open ended as time frames were not stated therein.
.13 Mr Modzuka, was then presented with a signed contract on the 25th of May 1998, stating that his services would be terminated on the 30th of June 1998. This was in line with the Department circular addressed above.
.14 Prior to this, no other documents were signed by Mr Modzuka, indicating the nature of employment or period of employment.
.15 On the 22nd of June 1998, prior to the expiry of the contract, of Mr Modzuka on the 30th of June 1998, the college requested an extension of the contract to the 30th of August 1998. This contract was extended to the 31st of December 1998, unbeknown to the College or to Mr Modzuka. This had surfaced later as a result of Mr Modzuka’s enquiries at the Department.
.16 Mr Modzuka then received a letter from the college, dated 30 July 1998, stating that his services were terminated. This he received on the 11th of August 1998. The date affecting the termination was to be the 31st of August 1998. The Modzuka assumed it was for him as it arrived with other documentation addressed to him. The other documents were the contracts of employment that indicated his employment till the end of June 1998 (signed on the 25th of May 1998) and the request for an extension to the 30th of August 1998, addressed to Mrs Konig.
.17 On receipt of this document Mr Modzuka went to see Mr Mabena at his home. At that meeting he met Mr Mbokane and Mr Seema. Mr Mbokane was at that stage the Divisional Head of Engineering Studies.
.18 Mr Modzuka addressed his queries to Mr Mbokane. According to Mr Modzuka, Mr Mbokane stated that he was unaware of what was happening at the satellite campus and signed the letter only as part of the management.
.19 Mr Modzuka then referred his query to the administration of the satellite campus, Mr Orsmond and Mr Mokoena. Their response was that the Department had cancelled the contract and there was nothing further for them to do.
.20 Mr Modzuka then called the Department directly who had informed him that he was still on the system and was unaware of the termination.
.21 On 1 September 1998, Mr Modzuka had a short meeting with various representatives of the college management. According to Mr Modzuka, the following things were said by Mr van Randburg, the Principal:
3.21.1 The Department cancelled the contract and there was nothing the college could do.
3.21.2 That Mr Modzuka was a “time bomb”.
3.21.3 The Department would not be asked to extend the contract, and
3.21.4 That a permanent position was out of the question, on enquiry of Mr Modzuka.
.22 Other aspects of the conversation noted were, that the Principal said that he should not have gone to Japan. Mr Mabena said that he should be removed because he was not capable of anything and that he could not cope in the classroom.
.23 Mr Modzuka was then dismissed from the meeting.
.24 Mr Modzuka then met with Mr Mogale, a Department representative on the 2nd of September 1998 and was later handed a letter indicating that he was not as yet removed from the system at the Department. Thus, the contract could not have been cancelled by the Department.
.25 When this document was brought to the attention of the Principal, Mr van Randburg, he wanted to verify its contents before any further action was to be taken.
.26 Once it was confirmed that the document was valid, Mr Modzuka was reinstated in his post and made an offer to teach any four subjects at the main campus of the College.
.27 This was rejected by Mr Modzuka on the grounds that this was not the post he applied for.
.28 A letter was written by Mr Ngomane to the College which was submitted on the 23rd of September 1999. No responses were forthcoming from the College.
.29 On the 2nd of October, a meeting was held with the college representatives and Mr Modzuka’s union representatives from SADTU, to find a solution to two problems. They were,
3.29.1 the status of Mr Modzuka’s post, and
3.29.2 that he had not accepted the offer to teach at the main campus.
.30 It was agreed that Mr Cassel would be approached to tach at the main campus and Mr Modzuka would resume duty at the workshop. This was subject to the acceptance of Mr Cassel of this arrangement.
.31 A follow up meeting was held on the 7th of October 1998. Among other issues the following was decided:
3.31.1 Due to the fact that Mr Cassel had refused for the sake of one person, Mr Modzuka would be assigned to assist Mr Mabena, and a meeting would be held to correct the relationship between the Principal and Mr Modzuka. That meeting did not take place.
.32 Mr Modzuka was presented with another contract indicating his position as a temporary educator and that termination would be effective as at the 31st of December 1998. This document was signed by Mr Modzuka on the 29th of October 1998.
.33 On the 1st of December 1998, Mr Modzuka received a letter from the Department, stating that his contract to the 31st of December 1998, would not be renewed. A dispute was then lodged with the ELRC for resolution. A conciliation was held without success and the parties agree to final and binding arbitration.
4 . ISSUE AND POWERS:
.1 The dispute before me concerns the alleged unfair dismissal of Mr Modzuka from the Soshanguve College of Vocational Education. The complainant claims that the dismissal was both procedurally and substantively unfair. My powers are to determine whether in fact the dismissal was fair or not and make an appropriate award regarding the remedy available to Mr Modzuka.
5 . EVIDENCE PRESENTED FOR THE APPLICANT:
.1 Mr Modzuka appeared as the first witness.
.2 When presented with contracts to sign in May 1998 and October 1998, Mr Modzuka enquired as to the nature of his employment. The explanation he was provided with, was that the payment of salary was dependent on it being signed and had nothing to do with his position. Further, Mr Ngomane of the South African Democratic Teachers Union, advised Mr Modzuka to sign the one presented in October and provided Mr Modzuka with the same reason as stated before, the payment of salary. Further, Mr Modzuka testified that according to Mr Ngomane, the contract would have no effect on his appointment.
.3 Further, with respect to the May contract, Mr Modzuka said that he had signed the contract because they did not want to be out of the system.
.4 With respect to the notice terminating his services on the 31st of August 1998, Mr Modzuka denied knowledge of the agreement being held and therefore was surprised at the termination.
.5 On Mr Modzuka’s return to the College in September, he denied any knowledge of and offer being made to teach any four subjects at the main campus and in his version indicated that, with reference to the timetable that he was asked to me Mr X, a position predetermined by management.
.6 Under cross examination the following aspects were addressed:
5.6.1 Mr Modzuka was not a teacher by profession and in fact he did not meet the minimum requirements to be appointed to the position form the advertisement that was placed.
5.6.2 Mr Modzuka’s application was completed on 12 May 1997, on the same day that the interview took place. However, Mr Modzuka met with members of the interviewing panel prior to the interview and also admitted knowing some of them.
5.6.3 When Mr Prins called to inform Mr Modzuka of the appointment after the interview, Mr Modzuka testified that Mr Prins, said the following:
5.6.3.1 “Congratulations, you have succeeded in the interview and appointed as a permanent lecturer.”
5.6.4 When Mr Modzuka reported for duty on 1 August 1997, he met with Mr Cassel and other where Mr Prins clarified the status of a permanent post.
5.6.5 Mr Modzuka was questioned as to why he only enquired why an appointment letter and pension fund deduction were not attended to on the 10th of November 1997, three months after appointment, to which he replied because it was at this stage that he had started to worry.
5.6.6 With respect to the contract signed on the 29th of October 1998 for the period, 1 July 19998 to 31 December 1998, Mr Modzuka says that he had conferred with his union representative and that the reason for the contract was for the payment of salary. A reason consistent with the one supplied by Management, according to Mr Modzuka. The union representative, Mr Ngomane, according to Mr Modzuka, did not place any pressure on him to sign the document.
.7 Other incidental matters:
5.7.1 Mr Modzuka was called on to assist at the main campus to lecture as a result of staff shortages there. This was considered a temporary measure and if such shortages were experienced again Mr Cassel would be asked to assist, not Mr Modzuka.
5.7.2 During the employment of Mr Modzuka at the college, he performed carious tasks. One such task was that of a project coordinator of a joint project between the Department of Public Works and the College and signed the correspondence between the parties as “Lecturer” and “Project Coordinator”.
5.7.3 Mr Johny Radebe, was the second witness for the complainant, who was an office bearer of SADTU and a deputy principal. Mr Modzuka approached him in the presence of Mr Ngomane with regard to the contract that was presented during October of 1998.
5.7.4 According to Mr Radebe, Mr Ngomane had indicated that the contract was for the purposes of salary payment only. However, under cross examination and as a deputy principal, Mr Radebe stated that permanent employees were not asked to sign this type of contract for any reason and that he had presented similar contracts to temporary employees. Furthermore, Mr Radebe said that in his opinion, Mr Ngomane had not advised Mr Modzuka correctly.
5.7.5 Mr Isaac Dibakwane an office bearer of SADTU, was the third witness for the complainant, and was approached by Mr Modzuka to assist him with respect to the dismissal. According to Mr Dibakwane the post Mr Modzuka applied for was advertised and therefore, it was permanent in nature.
5.7.6 Mr Dibakwane also questioned the move of Mr Modzuka to the main campus to lecture and Mr Modzuka’s refusal of this as being justified as he had not been employed for that purpose. Mr Dibakwane also alluded to the proposition that the treatment of Mr Modzuka was racially based and therefore he was being victimised.
5.7.7 Under cross examination, Mr Dibakwane stated that he was not aware of the position, Mr Modzuka was appointed in. The contract that was signed by Mr Modzuka on 29 October 1998, was sent to so called “unprotected educators” who joined the Department after the 30th of June 1996.
5.7.8 On being presented with Mr Modzuka’s letter of appointment that was dated, 2 September 1998, Mr Dibakwane indicated that if he had been made aware of the contents of the letter, it would have changed the nature of the discussion with respect to Mr Modzuka’s position.
5.7.9 Under re-examination of Mr Dibakwane, the question of the date of the letter of appointment was addressed as it looked as though the letter could have been backdated.
5.7.10 Mr Dibakwane also said that if there had been a delay in issuing the letter of appointment, it would have been done at the very latest two months after the date of appointment.
6 . EVIDENCE PRESENTED FOR THE DEPARTMENT:
.1 The first witness for the Department was Mr Konig. Mrs Konig’s testimony centered around the nature of appointment of Mr Modzuka. According to her he was appointed on a temporary basis, in accordance with the request of the College.
.2 They were:
6.2.1 Permanent appointment
6.2.2 Substitute appointment
6.2.3 Temporary appointment
.3 There was difficulty in the third type of appointment as no fixed date was set for the termination of the appointment and therefore it was regarded as an open-ended temporary contract. Mrs Konig indicated that as of April 1998, this had been addressed and all temporary appointments were closed fixed term contracts. This was in pursuance of trade union objections to a nature of a temporary appointment. Therefor all educators appointed on a temporary basis where given contracts to sign that had fixed dates of termination, as was done with Mr Modzuka. The contracts he had signed in 25 May 1998 and 29 October 1998, was in compliance with the requirement of the department regulations as noted in circular 29 of 1998. Also had Mr Modzuka been appointed on a permanent position he would have been given a different letter of appointment from the one that was dated, 2 September 1998.
.4 Under cross examination, Mrs Konig could not confirm or deny that a letter of appointment was sent to Mr Modzuka or the college, on his appointment.
.5 Further, that the contract sent to Mr Modzuka during May and October 1998, was sent as extensions of his original temporary appointment. Contract issued to temporary educators were in line with policy changes affected through circular 29 of 1998, dated 23 March 1998.
.6 Mrs Konig also stated that the letter of appointment given to MR Modzuka on, 2 September 1998, must be rad in conjunction with the contracts provide and not in isolation of them, thus indicating the date of termination.
.7 The letter ostensibly sent by Mrs Grove to Mrs Konig, requesting an extension of Mr Modzuka’s contract to 31 August 1998, must also be considered in light of the fact that schools and colleges operate on semester and trimester basis respectively and thus Mr Modzuka’s contract would have been extended on a semester basis, even though it was requested that it be extended to the end of the trimester.
.8 In regard to the date of the letter of appointment, Mrs Konig had no response as to why the letter were dated a year and a month after appointment.
.9 Mr Modzuka, was sent a notice indicating that his appointment would expire on, 3 December 1998. This was a general letter sent to all temporary educators whose employment contracts were going to expire and would not be renewed.
.10 Under re-examination of Mrs Konig, she indicated that the College decides whether a post would be temporary or permanent, given among other factors the staff establishment and the number of students. Thus, the Department would not unilaterally appoint or fail to appoint given a request for the College. Further, if the recommendation made by the College was in line with Department policy, the Department would not, necessarily act in contravention of such a request.
.11 The second witness called for the Department was Mr Mbokane. Mr Mbokane did not, according to his evidence, know the circumstances of the appointment of Mr Modzuka, as he only supervised Mr Modzuka from May 1998 to December 1998.
.12 Mr Modzuka’s notice of expiry of the contract was signed by Mr Mbokane and he also confirmed that discussions were held with Mr Modzuka in this regard as referred to in that notice to terminate on, 31 August 1998.
.13 The offer made to Mr Modzuka, in September on his return, to teach any four subjects was clearly recalled without hesitation and he also confirmed that lecturers were given the opportunity to teach subjects they were comfortable with.
.14 According to Mr Mbokane, Mr Modzuka did not cooperate and stormed out of a meeting that was held to discuss his position.
.15 At the meeting of, 2 October 1998, the College tried to solve the issue with SADTU and look for alternatives, however, these could not be found.
.16 Under cross examination the reason for paying, Mr Modzuka to the end of August and not at the 7th of August 1998, when the College trimester ended was questioned at length and the answer provided by Mr Mbokane was that it was not for humane reason. This was not consistent with Department policy.
.17 With respect to the discussion referred to between Mr Modzuka and the College management regarding the expiry of the contract, on 31 August 1998, Mr Mbokane could not state the date of the discussion as it was an ongoing process.
.18 Mr Mbokane also indicated that on occasion, Mr Modzuka as to how he may be appointed as a permanent staff member.
.19 After the initial termination of the contract on, 31 August 1998, Mr Modzuka went to the Department and retrieved a document, stating that he was still in the employment of the Department and therefore the College was obliged to take him back. This was his letter of appointment that was dated, 2 September 1998.
.20 On the question of Mr Modzuka’s competency to teach and the alleged complaint of the students, Mr Mbokane state that the decision not to renew his contract was not related to competency.
.21 Further with respect to the move of MR Modzuka to the main campus and not Mr Casses. Mr Modzuka maintained that the move of Mr Modzuka was due to the fact that Mr Cassel had established a relationship with the students at the workshop and this could not be interrupted in the third trimester.
.22 Also, the move of MR Modzuka was required and he was a temporary staff member and therefore would be moved where necessary prior to full time employees being moved.
.23 Further, a need existed for him to be at the main campus and as he was employed as a lecturer and should have been competent to lecture at the main campus as well.
.24 Further, under re-examination of Mr Mbokane, he maintained that Mr Modzuka knew that he was temporary because Mr Modzuka cam te Mr Mbokane in 1997, after his appointment and asked how he could be made permanent.
.25 The third witness called by the Department was the rector of the College, Mr Van Rensburg. According to Mr Van Rensburg, Mr Modzuka was employed as a temporary lecturer because there was a possibility that student numbers would increase in the last trimester of 1997.
.26 Mr Van Rensburg was aware of the nature of temporary posts being open ended and also confirmed that Mrs Grove would have informed all employees on appointment what the nature of the position would be. According to Mr Van Rensburg, Mrs Grove did in fact, do this with Mr Modzuka.
.27 Mr Van Rensburg stated with regard to the contracts that were presented to Mr Modzuka during May and October 1998, that all temporary educators either had to accept the terms of the contract or resign in line with circular 29 of 1998.
.28 Mr Van Rensburg indicated that it was the intension of the College to extend the contract of Mr Modzuka, only till the end of the second trimester. However, due to the fact that the Department works on a semester basis for schools, the contract was extended to the 30th of June 1998 and then to the 31st December 1998.
.29 Mr Van Rensburg, also confirmed Mr Modzuka’s position with regard to the option that was provide and corroborated what the previous witness said that Mr Modzuka had refused to elect any four subjects for lecturing at the main campus.
.30 Under cross examination, Mr Van Rensburg said that, Mr Modzuka was removed from classes due to the fact that numerous complaints were received from students. Mr Van Rensburg could also not recall all the details of the events that occurred during June and December of 1998. According to Mr Modzuka, he testified that Mr Van Rensburg said firstly that Mr Modzuka was a “time bomb” and secondly that Mr Van Rensburg would see it that Mr Modzuka was removed form his position. Mr Van Rensburg denied making either of these comments.
.31 With respect to the circumstances that led to the College accepting Mr Modzuka back in September 1998, Mr Van Rensburg confirmed that it was due to the fact that the Department had extended his contract till the end of the year.
.32 Further the question was raised as to why Mr Modzuka was offered to teach any subjects, even though there were doubts as to his ability. Mr Van Rensburg did not respond.
.33 The reason provided as to why Mr Modzuka was appointed on a temporary basis in August of 1997 and not on a permanent basis was because he had come second in the interview and there was a need for another lecturer at the workshop in a temporary capacity.
.34 Mr Van Rensburg, stated that he had instructed Mr Prins to offer Mr Modzuka an appointment after the panel decided that a vacancy existed for a temporary position.
.35 On re-examination of Mr Van Rensburg, he had pointed out that Mr Modzuka, was evaluated. Like all other lecturers, on a regular basis. Where deficiencies were discovered, they were addressed through correctional measures.
.36 Disciplinary action in Mr Modzuka’s case was not instituted and if there were problems that required termination of service only the Department would have the right to do so.
.37 Further, in the case of the status of the employee only the Department can change that status from temporary to permanent and vice versa.
.38 The fourth witness called on behalf of the Department was Mr Prins, who was a member of the panel that interviews Mr Modzuka for a lecturing post for the Fitting and Turning Workshop.
.39 Mr Prins also called Mr Modzuka to inform him of the appointment and the starting date.
.40 Mr Prins stated that he did not know whether Mr Modzuka was aware of the nature of the position or not and that he could not recall whether he had said anything to Mr Modzuka regarding the nature of the appointment.
.41 Mr Prins quite clearly stated that he could not recall ever informing any candidates about the nature of the post they were appointed to, according to him it was a staffing matter.
.42 The fifth witness for the department was Mrs Grove.
.43 On the 4th of August 1991, Mrs Grove sent a document through to the Department, indicating the appointments made and the starting date. Mr Modzuka’s was listed as temporary with a starting date of, 1 August 1997.
.44 Under cross examination, Mrs Grove also testified that she was sure that the document was received by the Department as it was processed. Mrs Grove, under cross examination, stated that she was told what the status of the posts was after discussions with the interview panel.
.45 Mrs Grove also testified that she had also sent two other letters of request for the extension of Mr Modzuka’s contract on instructions of the Divisional Head as the College had further need for the post to be filled.
.46 On Mr Modzuka’s arrival at the College, Mrs Grove could not recall whether he was specifically told what the status of the post was, however, stated that it is normal practice for all new employees to be informed.
.47 Contracts were extended in January 1998 at the request of the College of a few employees because they were all working at the time, salaries were not received and the posts could be justified.
.48 According to Mrs Grove, temporary posts would be open ended till the need for the post fell away, or the post was advertised for permanent position. The Department would usually be notified though it was not necessary to do so while the posts were temporarily filled. In Mr Modzuka’s case the need for the post fell away.
.49 Mr Modzuka was notified that his contract would expire at the end of the second trimester, being 31 August 1998 and had he not been informed, this would not have made a difference to his position, the contract would have expired anyway.
.50 Mr Modzuka was however, reinstated due to the fact that his contract was extended to the end of the year by the Department.
7 . ANALYSIS OF EVIDENCE AND CLOSING ARGUMENTS:
.1 The applicant contends that there were two permanent positions advertised in the Fitting and Turning Workshop and Mr Modzuka was appointed on a permanent basis to the one post. I disagree for two reasons,
7.1.1 Firstly, the advertisement does not state that two or more positions are being filled. It only states “Lecturers” and then the two workshops in which vacancies will be filled are named. I can therefore not conclude that two vacancies existed in the Fitting and Turning Workshop for which Mr Modzuka applied and was interviewed. At best I can conclude that vacancies existed in two different workshops.
7.1.2 Secondly, the applicant was ranked as candidate number two and on this point there was no dispute. I will therefore accept the explanation presented that the applicant was offered a temporary position due to the expectation of an increase in the number of students.
.2 Furthermore the testimony of Mr Prins, that two permanent posts were vacant in the Fitting and Turning Workshop is doubtful. Mr Prins did testify that two appointments were made. That the two were both permanent, was not put beyond doubt as claimed by Mr Narian in his closing argument.
.3 The applicant argues that he was never informed about being temporarily employed, even after enquiring as to the letter of appointment and the failure to deduct pension fund contributions from his salary. There is no clear evidence that Mr Modzuka was never informed.
.4 He contends that Mr Prins informed him that he was appointed as a permanent lecturer when he was telephoned after the interview. Mr Prins in his testimony was quite clear on this point, that it was not his practice to inform successful applicants of the nature of their appointments. Mr Narian agrees with me on this.
.5 Further, Mrs Grove did state that it was policy to inform all applicants what the nature of their appointments is when they start. Though she could not remember if this was done with Mr Modzuka or not. Mr Van Rensburg did corroborate this part of the evidence. He stated that Mrs Grove informed him that she informed Mr Modzuka what the status of his post was.
.6 Further, a document was sent to the Department informing them of the nature of the appointment of Mr Modzuka and others, and of this I am absolutely clear for two reasons.
7.6.1 Firstly, Mr Modzuka was paid a salary. The Department would pay unless a persal number was allocated and they would also not act out of their own without a recommendation from the College.
7.6.2 Secondly, the letter of appointment retrieved by the applicant dated, 2 September 1998, reflects all the details corroborating the letter Mrs Grove says she sent to the Department. That information would have to be sourced from the College.
.7 Mr Modzuka on occasion, did inquire of Mr Mbokane about the possibility of being made permanent. This was brought up twice during the cross examination of Mr Mbokane however, left unchallenged by the Applicant.
.8 Mr Modzuka also alluded to this in his evidence. He said that on, 1 September 1998, when he had a meeting with the College management a number fo issues were addressed among them his enquiry of Mr Van Rensburg what he possibility was that he could be made permanent. To which Mr Van Rensburg replied that, that was out of the question. It was at this meeting that Mr Modzuka claimed that Mr Van Rensburg stated that he was a “time bomb”.
.9 Given this overwhelming evidence and Mr Modzuka’s own admission, his version is to be rejected that he had no knowledge of the status of his appointment.
.10 When asked to sign a contract of employment during May 1998, he had so after the explanation was given to him that it was for the purposes of salary payment only and if he did not sign his salary would not be paid. The same applied to the contract that was signed in October 1998. Mr Modzuka also made the claim that he had signed under duress.
.11 The contract presented to him in May 1998, was handed to him on a Friday. He claimed that he enquired as to the reasons for the contract and was told that it was for the purposes fo salary payment. It is the uncorroborated evidence of the applicant that these enquiries were made prior to him signing.
.12 The claim of duress is also doubtful as the contract was signed and returned the next Monday. Surely he would not have signed after careful consideration and aware, no doubt of its implications, if it incorrectly reflected his position.
.13 Yet, after signing nor further enquiries were made to any person regarding his position.
.14 With regard to the contract signed in October, Mr Modzuka had already at that stage, challenged the nature of the post through his union representative. It was also clear that he was given incorrect advice by Mr Ngomane to sign, as corroborated by Mr Dibakwane.
.15 The reason Mr Modzuka claims for signing the contract being the non-payment of salary is surely to be rejected because there is no evidence advanced at all that he did not receive his salary for June, July, August and September.
.16 He should have therefore rejected the reason for non payment of salary out of hand as he was paid and should also have enquired as to the real reason for the signing of the contract. It is therefore my conclusion that the applicant signed with the knowledge that his position was not permanent.
.17 With regard to the requests for extensions of his contract at various time during January 1998 (January, March and June) and the inconsistencies related thereto, the applicant contends that these so-called requests did not take place due to the fact that no proof existed for sending them or for them having been received by the Department. As stated earlier, the Department acted on these requests and therefore even though no proof was advanced that they were in fact sent, the Department’s representative would not have acted at all had there been no requests. Further I cannot see how that in itself, would affect the status of the applicant’s position.
.18 After the applicant’s initial termination on, 31 August 1998, he was reinstated due to the fact that he produced a letter from the Department stating that he was still in their employment. The applicant contends that the reinstatement was not on the basis of a fixed term contract. The Department generated a contract stating that the applicant was to be employed from, 1 July to 31 December 1998 and this was signed by the applicant. On what possible basis could be the applicant have assumed that he was re-instated on a different basis, for example, a full time permanent appointment?
.19 In examining the applicable legal principles advanced by the applicant, I respectfully agree with the judgment in Smit vs Workmen’s Compensation Commission 1979 (1) Sa 51 (A) that the objective of the contract is one of the most important legal characteristics of the contract of employment. Further, Brassey’s article in the 1990 (1) ILK at 889 considers that the object of the contract should determine its character. The applicability of these principles in this case, lends itself to interpretation as the objective of the contract of employment offered to Mr Modzuka, may have had differing interpretations fo reach of the parties. However, in light of the above facts as adduced in evidence and the weight I have granted to the various testimonies presented, I cannot conclude that Mr Modzuka was absolutely clear in his mind that the contract was one of permanent employment. In fact I can say without hesitation that I believe that the contract was one of a temporary nature.
.20 The same would apply to the extent that the cases were cited of Borcherds vs CW Pearce and J Shewar t/a Luberite Distributors (1993) 14 IJL 1262 (LAC) at 1277 H and Goldberg vs Durban City Council 1970 (3) SA 325 (N)
.21 Proof of the fixed term contract must be established in that the parties must be aware about the nature of the contract particularly with regard to its duration. Department policy of open-ended temporary contracts was certainly repugnant to this principle. However, this was changed and resulted in circular 29 of 1998 after a collective bargaining process was embarked on by the trade unions in the Department to correct the situation.
.22 Circular 29 of 1998 applied to Mr Modzuka and stated clearly that temporary appointments will be terminated with an end date of, 30 April 1998 at par 2. Further, new letters of appointment will be generated with an end date of, 30 June 1998 at par 5. It was also stated that the fixed term contract was a new appointment at par 6.
.23 This does not contradict with the fact that Mr Modzuka was employed in a temporary capacity. It is only his knowledge of the situation that needs to be addressed. It can therefore be concluded that Mr Modzuka’s contract started as one of an open-ended temporary appointment but changed in essence with the signing of a new contract during May 1998 and again in October 1998 to a contract of a fixed duration. Therefore, Mr Modzuka was aware of the new fixed term contract. The cases as cited by the application have reference DeSousa vs Wonder Air (Pty) Ltd. 1995 BLLR 49 (IC) and Mackay and Another vs Comtec Holdings (Pty) Ltd. 1996 BLLR 863 (ic).
.24 It was not claimed at any stage by the College of the Department that Mr Modzuka’s termination as based on misconduct or incapacity.
.25 Mr Modzuka’s denial of the offer made to teach any four subjects on his return to the College in September must be considered in the light that Mr Mbokane, Mr Van Rensburg and Mrs Grove, all testified to this and also a document dated, 16 September 1998 confirms this. In addition the minutes of 2 October 1998 refer to this. Thus, Mr Modzuka’s refusal to accept the offer to teach any four subjects at the College is deemed to be unreasonable.
.26 The decision to terminate Mr Modzuka’s services at the end of the second trimester, it is claimed, was after it had been discussed and agreed to. Though I will accept that Mr Modzuka did not agree to it I am of the opinion that such a discussion was held as evidenced by Mr Mbokane, a more reliable witness. The fact that this was recorded in a letter of notice is also evidence as a contemporaneous document received by Mr Modzuka.
.27 It was also submitted that MR Modzuka could not have been appointed in a permanent position, as he did not meet the minimum requirements of the advertisement. This was clearly addressed in the cross examination of Mr Modzuka’s evidence and was not challenge by the Applicant.
.28 The date of the letter of appointment was also questioned. The 2nd of September 1998, is in all likelihood the date the letter was retrieved from the system. It is not probable that Mr Modzuka’s appointment letter was backdated as all the details are correct and consistent with the letter that Mrs Grove sent to the Department on, 4 August 1997.
8 . FINDING:
.1 After carefully considering all the evidence adduced before me, I find that the version of the facts of the applicant is not consistent and corroboration is spares and at times non existent. Mr Modzuka was warned about being evasive in his answering and I gave his representative and opportunity to consult with him on this.
.2 Nevertheless, the Department would however, not be absolved of its onus to provide a fair reason for the termination and so demonstrate that if followed a fair procedure. This onus I have found to be adequately discharged to render to termination of Mr Modzuka’s temporary fixed tem contract of employment fair as at the 31st of December 1998
MUHAMMED DOLLIE
ARBITRATOR
DATED: 06 OCTOBER 1999
EDUCATION LABOUR RELATIONS COUNCIL
ARBITRATION AWARD
CASE NUMBER GAAR 003617
APPLICANT MR MODZUKA
RESPONDENT DEPARTMENT OF EDUCATION
NATURE UNFAIR DISMISSAL
ARBITRATOR M DOLLIE
DATE OF ARBITRATION 21 MAY 1997
VENUE PRETORIA/CENTURION
REPRESENTATION:
APPLICANT MR SUNIL NARIAN
RESPONDENT MR J THIPE
AWARD:
1 After carefully considering all the evidence adduced before me, I find that the version of the facts of the applicant is not consistent and corroboration is spares and at times non existent. Mr Modzuka was warned about being evasive in his answering and I gave his representative and opportunity to consult with him on this.
2 Nevertheless, the Department would however, not be absolved of its onus to provide a fair reason for the termination and so demonstrate that if followed a fair procedure. This onus I have found to be adequately discharged to render to termination of Mr Modzuka’s temporary fixed tem contract of employment fair as at the 31st of December 1998
DATE OF AWARD 06 OCTOBER 1999