PSES 557 – 12/13 GP
PSES 557 – 12/13 GP
Award Date:
24 June 2013
Case Number: PSES 557 – 12/13 GP
Province: Gauteng
Applicant: Ms. RT Mkabile
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Johannesburg
Award Date: 24 June 2013
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION BETWEEN:
Ms. RT MKABILE “the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: PSES 557 – 12/13 GP
Date of arbitration: 31 May 2013
Date of award: 24 June 2013 (extension arranged)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
The hearing of the arbitration took place on 31 May 2013 at the offices of the Gauteng Department of Education in Johannesburg. The Applicant is Ms. RT Mkabile. She was not represented. The Respondent is the Gauteng Department of Education, represented by Mr. J Motale.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the alleged unfair dismissal dispute by the Applicant.
The Respondent disputes that the Applicant was dismissed, as her temporary contract ended automatically. Therefore the issue in dispute is whether the termination of the Applicant’s employment falls within the definition of dismissal as defined in section 186 of the Labour Relations Act, no. 66 of 1995.
The parties also agreed on the following:
To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
To empower the arbitrator to award an appropriate remedy.
The Respondent tabled documents contained in bundle A, pages 1 to 34, and Bundle B.
PRELIMINARY ISSUES
During her opening statement the Applicant stated that she was permanently employed on 1 July 2011. She was terminated on 10 January 2013. She bases her case on the original permanent employment letter. Her salary was R71 664 P/A when she was terminated. Her dispute is about the termination in January 2013. She requests to be reinstated.
The Respondent stated in opening that the Applicant was never permanently employed. The 1st letter was erroneously issued and was withdrawn on the basis of the error. The withdrawal and the reasons for it was communicated to her. Subsequently she was appointed on a fixed term contract. The renewal was done to afford her the opportunity to qualify for permanent appointment on PL 1. The termination on 31 December 2012 was as a result of her post being redundant due to learner numbers. There was no dismissal, the contract came to a natural end. She still has not obtained the requisite qualification.
SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a summary of the Applicant’s and Respondent’s witnesses’ evidence follows below.
ROSELINE MKABILE testified that she initially joined the Department of Education in 2010 to relieve another lady. On 01 July 2010 she was appointed permanently as per the letter on page 14 of Bundle A. In March 2011 the Department informed her she is being terminated because of her qualification. She received no letter of termination. She went back to the school in April 2011 because she still waited for a termination letter. She received it on 03 June 2011. It contradicted her permanent appointment letter. She received several letters with contradicting information from different officials. They did say she must go the NWU to upgrade her qualification. She did enroll but could not afford it due to the cut in salary. During cross – examination she testified that she has REQV 12. She was informed that she was erroneously appointed because it was discovered that she did not have REQV 13. She accepted the evaluation that she was only REQV 12. She agrees with the clause 2.2(a)(1) that states she must have at least REQV 13. Her permanent appointment was withdrawn as a result thereof. She agrees that her temporary appointment on page 19 clearly states in paragraph 3 her appointment is temporary on condition that she meet the minimum requirements, and that she had to submit proof of registration. She was reminded of that conditions as per the letter on page 21. In June 2012 she was again reminded and warned that her service could be terminated if she does not comply. She did not comply. She agrees that her initial permanent appointment was cancelled because of incorrect information. She was then appointed on a temporary basis from 28 February 2012 to 31 December 2012 as per page 25. She still does not have REQV 13.
BOBBY SELLO testified that he is the Circuit Manager for Gauteng East. The Applicant had a temporary appointment for 28 February 2012 to 31 December 2012 as per page 25. The contract ended in line with the contract provisions. Due to reduced learner numbers the post establishment changed and her post no longer existed. During cross-examination he testified that the initial permanent appointment was an error and it was rescinded on that basis. She then got a temporary appointment subject to upgrading her qualification. All the letters made her aware of the nature and condition of her appointment.
SUMMARY OF ARGUMENT
APPLICANT submitted the following in her closing arguments:
She is not satisfied and happy with the proceedings.
RESPONDENT submitted the following in its closing arguments:
There was no dismissal. The Applicant’s contract came to a natural end.
ANALYSIS OF EVIDENCE AND ARGUMENT
The Applicant has alleged that she was unfairly dismissed. Section 192 of the Labour Relations Act, no. 66 of 1995 (the Act) deals with the onus in dismissal disputes and places the onus on the employee to prove the existence of the dismissal. Once the existence of the dismissal is established, the onus shifts it to the employer to show the dismissal was fair, both substantively and procedurally. The Respondent claims that the Applicant was employed on a temporary contract basis and that her contract expired. There was no dismissal. The existence of a dismissal is therefore placed in dispute by the Respondent.
Section 186 of the Act defines “dismissal” in the following manner:
“Dismissal” means that -
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she -
(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to reemploy another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”.
I have to decide on a balance of probabilities whether the termination of the Applicant’s employment relationship falls within the ambit of the definition above, and whether she was dismissed by the Respondent. The Applicant did not allege constructive dismissal and there is therefore no need to consider it.
The Applicant was initially appointed on 01 July 2010 on a permanent basis. The appointment was rescinded due to the fact that it was based on incorrect information. The appointment letter clearly states that the appointment may be cancelled if it was based on incorrect information. The Applicant was informed of the reasons for the cancellation. She did not lodge any dispute at that stage against the rescission of the permanent appointment. She therefore has no basis to claim unfair dismissal as a result of that cancellation now.
She was then appointed on a fixed term basis to allow her to obtain the requisite minimum qualification of REQV13 as prescribed by PAM for permanent appointment. The contract was renewed to afford her more opportunity to comply with that condition. She all along knew what the condition was, as she was reminded of it several times in letters. She never obtained the requisite qualification, even up to the date of the arbitration. Due to the reduction in learner numbers her post fell away, and it then resulted in her contract not being renewed at the end of the contract period.
There is no evidence upon which I can find on a balance of probabilities that the Respondent created a reasonable expectation with the Applicant that her fixed term contract will be renewed, and then failed to renew it, or offered to renew it on less favourable terms. I accept the Respondent’s version that the Applicant was informed of the termination, and that her contract of employment ended legally. She never met the condition of obtaining the prerequisite minimum qualification for permanent employment, and her post became redundant operationally due to the decline in learner numbers, and could thus not be renewed again to afford her yet another opportunity to meet the condition.
The onus of proving the existence of a dismissal lies with the Applicant, and she did not discharge that onus. I find that the Applicant did not prove on a balance of probabilities that she was dismissed as defined in section 186(1)(a) of the LRA. She is not entitled to relief.
7 AWARD
1. The application is dismissed.
2. No order is made as to costs.
C0EN HAVENGA
ARBITRATOR 24 JUNE 2013
Province: Gauteng
Applicant: Ms. RT Mkabile
Respondent: Department of Education, Gauteng
Issue: Unfair Dismissal - Non-renewal of fixed term contract
Venue: Johannesburg
Award Date: 24 June 2013
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION BETWEEN:
Ms. RT MKABILE “the Applicant”
and
DEPARTMENT OF EDUCATION – GAUTENG PROVINCE “the Respondent”
ARBITRATION AWARD
Case Number: PSES 557 – 12/13 GP
Date of arbitration: 31 May 2013
Date of award: 24 June 2013 (extension arranged)
COEN HAVENGA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
The hearing of the arbitration took place on 31 May 2013 at the offices of the Gauteng Department of Education in Johannesburg. The Applicant is Ms. RT Mkabile. She was not represented. The Respondent is the Gauteng Department of Education, represented by Mr. J Motale.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the alleged unfair dismissal dispute by the Applicant.
The Respondent disputes that the Applicant was dismissed, as her temporary contract ended automatically. Therefore the issue in dispute is whether the termination of the Applicant’s employment falls within the definition of dismissal as defined in section 186 of the Labour Relations Act, no. 66 of 1995.
The parties also agreed on the following:
To empower the arbitrator to determine the substantive and procedural fairness of the dismissal;
Annexure B of Collective agreement no. 1 of 2006 governs the procedure of the arbitration hearing; and
To empower the arbitrator to award an appropriate remedy.
The Respondent tabled documents contained in bundle A, pages 1 to 34, and Bundle B.
PRELIMINARY ISSUES
During her opening statement the Applicant stated that she was permanently employed on 1 July 2011. She was terminated on 10 January 2013. She bases her case on the original permanent employment letter. Her salary was R71 664 P/A when she was terminated. Her dispute is about the termination in January 2013. She requests to be reinstated.
The Respondent stated in opening that the Applicant was never permanently employed. The 1st letter was erroneously issued and was withdrawn on the basis of the error. The withdrawal and the reasons for it was communicated to her. Subsequently she was appointed on a fixed term contract. The renewal was done to afford her the opportunity to qualify for permanent appointment on PL 1. The termination on 31 December 2012 was as a result of her post being redundant due to learner numbers. There was no dismissal, the contract came to a natural end. She still has not obtained the requisite qualification.
SUMMARY OF EVIDENCE
The proceedings have been recorded digitally, and a summary of the Applicant’s and Respondent’s witnesses’ evidence follows below.
ROSELINE MKABILE testified that she initially joined the Department of Education in 2010 to relieve another lady. On 01 July 2010 she was appointed permanently as per the letter on page 14 of Bundle A. In March 2011 the Department informed her she is being terminated because of her qualification. She received no letter of termination. She went back to the school in April 2011 because she still waited for a termination letter. She received it on 03 June 2011. It contradicted her permanent appointment letter. She received several letters with contradicting information from different officials. They did say she must go the NWU to upgrade her qualification. She did enroll but could not afford it due to the cut in salary. During cross – examination she testified that she has REQV 12. She was informed that she was erroneously appointed because it was discovered that she did not have REQV 13. She accepted the evaluation that she was only REQV 12. She agrees with the clause 2.2(a)(1) that states she must have at least REQV 13. Her permanent appointment was withdrawn as a result thereof. She agrees that her temporary appointment on page 19 clearly states in paragraph 3 her appointment is temporary on condition that she meet the minimum requirements, and that she had to submit proof of registration. She was reminded of that conditions as per the letter on page 21. In June 2012 she was again reminded and warned that her service could be terminated if she does not comply. She did not comply. She agrees that her initial permanent appointment was cancelled because of incorrect information. She was then appointed on a temporary basis from 28 February 2012 to 31 December 2012 as per page 25. She still does not have REQV 13.
BOBBY SELLO testified that he is the Circuit Manager for Gauteng East. The Applicant had a temporary appointment for 28 February 2012 to 31 December 2012 as per page 25. The contract ended in line with the contract provisions. Due to reduced learner numbers the post establishment changed and her post no longer existed. During cross-examination he testified that the initial permanent appointment was an error and it was rescinded on that basis. She then got a temporary appointment subject to upgrading her qualification. All the letters made her aware of the nature and condition of her appointment.
SUMMARY OF ARGUMENT
APPLICANT submitted the following in her closing arguments:
She is not satisfied and happy with the proceedings.
RESPONDENT submitted the following in its closing arguments:
There was no dismissal. The Applicant’s contract came to a natural end.
ANALYSIS OF EVIDENCE AND ARGUMENT
The Applicant has alleged that she was unfairly dismissed. Section 192 of the Labour Relations Act, no. 66 of 1995 (the Act) deals with the onus in dismissal disputes and places the onus on the employee to prove the existence of the dismissal. Once the existence of the dismissal is established, the onus shifts it to the employer to show the dismissal was fair, both substantively and procedurally. The Respondent claims that the Applicant was employed on a temporary contract basis and that her contract expired. There was no dismissal. The existence of a dismissal is therefore placed in dispute by the Respondent.
Section 186 of the Act defines “dismissal” in the following manner:
“Dismissal” means that -
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she -
(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or
(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to reemploy another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”.
I have to decide on a balance of probabilities whether the termination of the Applicant’s employment relationship falls within the ambit of the definition above, and whether she was dismissed by the Respondent. The Applicant did not allege constructive dismissal and there is therefore no need to consider it.
The Applicant was initially appointed on 01 July 2010 on a permanent basis. The appointment was rescinded due to the fact that it was based on incorrect information. The appointment letter clearly states that the appointment may be cancelled if it was based on incorrect information. The Applicant was informed of the reasons for the cancellation. She did not lodge any dispute at that stage against the rescission of the permanent appointment. She therefore has no basis to claim unfair dismissal as a result of that cancellation now.
She was then appointed on a fixed term basis to allow her to obtain the requisite minimum qualification of REQV13 as prescribed by PAM for permanent appointment. The contract was renewed to afford her more opportunity to comply with that condition. She all along knew what the condition was, as she was reminded of it several times in letters. She never obtained the requisite qualification, even up to the date of the arbitration. Due to the reduction in learner numbers her post fell away, and it then resulted in her contract not being renewed at the end of the contract period.
There is no evidence upon which I can find on a balance of probabilities that the Respondent created a reasonable expectation with the Applicant that her fixed term contract will be renewed, and then failed to renew it, or offered to renew it on less favourable terms. I accept the Respondent’s version that the Applicant was informed of the termination, and that her contract of employment ended legally. She never met the condition of obtaining the prerequisite minimum qualification for permanent employment, and her post became redundant operationally due to the decline in learner numbers, and could thus not be renewed again to afford her yet another opportunity to meet the condition.
The onus of proving the existence of a dismissal lies with the Applicant, and she did not discharge that onus. I find that the Applicant did not prove on a balance of probabilities that she was dismissed as defined in section 186(1)(a) of the LRA. She is not entitled to relief.
7 AWARD
1. The application is dismissed.
2. No order is made as to costs.
C0EN HAVENGA
ARBITRATOR 24 JUNE 2013