ELRC 521-2021WC
Text
Award Date:
20 June 2021
Case No: ELRC 521-2021WC
In the matter between:
ELSEMA FILANDER Applicant
and
HOD, DEPARTMENT OF EDUCATION, WC Respondent
ARBITRATOR: D P Van Tonder
HEARD: 6 April 2021; 26 May 2021
FINALISED: 7 June 2021
DELIVERED: 20 June 2021
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1)(b) – Alleged Unfair Dismissal – Whether employee had a reasonable expectation of a further fixed term contract – Factors to be taken into account to establish whether employee has such reasonable expectation
ARBITRATION AWARD
I THE PARTIES
Applicant
[1] The applicant is Mrs Elesma Filander who appeared in person and represented herself.
Respondent
[2] Respondent is Head of the Western Cape Education Department, who was represented by an employee Mr Muller.
II PROCEDURAL HISTORY
[3] This matter was conciliated before another panellist but could not be settled. I was appointed as arbitrator and heard evidence on 6 April and 26 May 2021 via Zoom. The proceedings were digitally recorded. I received the final written closing arguments on 7 June 2021.
III THE ISSUES TO BE DETERMINED
[4] I am required to determine whether the applicant was dismissed and if so, whether such dismissal was fair, and if not, the appropriate relief.
IV BACKGROUND TO THE DISPUTE
[5] The applicant was employed by respondent on the following fixed term contracts as post level 1 educator at HP Williams Primary School in Stompneus Bay at a monthly salary of R25 661,47:
• 01/07/2019 – 30/09/2019
• 01/10/2019 – 31/12/2019
• 01/01/2020 – 30/06/2020
[6] Applicant’s contract was not renewed after it expired at the end of June 2020. Applicant claims that she had a reasonable expectation that her contract would be renewed until the end of December 2020 and that she was accordingly dismissed in terms of section 186(1)(b) of the LRA when her contract was not renewed. She accordingly asks for compensation equal to six months’ salary. Respondent disputes that applicant had any reasonable expectation of renewal and disputes that applicant was dismissed.
V THE EVIDENCE
Documentary evidence
[7] The parties handed in four pdf bundles of documents marked A1-20, A21-41, B 1-19 and C.
[8] I do not intend to summarise all the documentary evidence here, but will only refer to the most relevant documents:
• Letter of the SGB of HP Williams, dated 4 June 2020 addressed to applicant in which applicant is reminded that her contract is expiring on 30 June 2020 and in which she is advised that she can apply for any other post at the school;
• Letter signed by applicant on 13 January 2020 in which she accepts the nomination for a post level 1 educator post at HP Williams from 1 January until 30 June 2020;
• Nomination by the SGB of HP Williams for the appointment of applicant from 1 January 2020 until 30 June 2020;
• Staff establishment for 2020 issued by the WCED for HP Williams;
• Letter of appointment from the WCED appointing applicant at HP Williams for the period 1 January 2020 until 30 June 2020;
• Letter dated 11 June 2020 from applicant to the SGB about the nonrenewal of her contract and asking for certain information;
• Minutes of the SGB for a meeting held on 29 June 2020 during which meeting the advertisement for an English teacher was discussed, and during which applicant and her performance was also discussed;
• Circular 30/2019 issued by the WCED concerning post provisioning for 2020;
• Advertisement for a contract post at HP Williams from 1 July to 31 December 2020 for an English teacher in the Intersen phase;
• Letter dated 15 July 2020 by the SGB of HP Williams, addressed to applicant and advising her that she has not been successful for the position for which she applied and was interviewed.
Evidence on behalf of applicant
[9] Elesma Filander, the applicant testified that she was contacted in 2019 by the principal of HP Williams Primary, Mr Erasmus who asked her whether she was interested in a contract post at the school. She applied for the post and was recommended and appointed as a post level 1 educator at the school in two consecutive fixed term contracts during 2019. She was advised that the reasons why the school required a fixed term contract educator for 2019 was because the school was waiting for an HOD post level 2 educator to commence working at the school.
[10] She was however not required to perform the work of a post level 2 educator. Another educator at the school was doing the work of the HOD while the school was waiting for the HOD to commence duties. She was again approached and asked whether she was wiling to accept another fixed term contract appointment from January until June 2020 to teach the grade 6 class, which she taught in 2019 in grade 5. Discipline was a problem with that specific class and she was told that it was observed that she was good with discipline. The SGB then nominated her for a fixed term contract for the period January 2020 until 30 June 2020, which nomination she accepted, whereafter she was issued with an appointment letter for that period.
[11] In 2019 the school had a post establishment of 9 educators and for the 2020 year this increased to 10 educators. This was in terms of the post establishment that was issued to the school. After the principal received the new post establishment, he came to speak to her around the 27th of June 2020 and advised her that the school has received an additional post for 2020. He also advised her that Ms Golden is coming back into the HOD post and that applicant would now be at the school on a fixed term contract until December 2020.
[12] The way that she understood him is that Ms Golden would be appointed in the HOD post and she (applicant) would act in the additional new post until December 2020. She said to the principal that she accepts the offer to work at the school until December 2020. She was not asked to sign any new documents or contracts and the documentation still reflected that her nomination and contract was from January until June 2020. However, through this conversation with the principal and the promises he had made to her, an expectation was created with her that she would be employed at the school until December 2020.
[13] Mrs Golden returned to the school and commenced working at the school during early February 2020. Due to Covid19, the schools closed towards the end of February 2020 and they commenced working from home. While they were working from home, she became concerned about the documentation that had to be completed in respect of the extension of her contract from July until December 2020.
[14] She managed to make contact with Mr Erasmus, the school principal by 30 April 2020. She discussed the issue with him and he said that nothing is on the system yet but that there is still sufficient time left to complete the documents. During May 2020 she again spoke to Mr Erasmus and he then said to her that there was a new SGB and that he must speak to them.
[15] She advised Mr Erasmus that an expectation was created and that he must speak to the new SGB and advise them accordingly. The schools started on 1 June 2020 when some children started to return to school. After the SGB had a meeting in June 2020 she wanted to know from the principal what progress had been made. He did not answer her. When she heard from one SGB member, Ms van der Mest, that it was decided not to renew her contract, but that no reasons were provided, she confronted Mr Bester from the SGB who confirmed that her contract was not extended, but added that reasons were given, and that he cannot tell her what those reasons were.
[16] She then approached the principal in the presence of Mr Bester. The principal then confirmed that her contract was not extended. He said to her that if she is unhappy she must write to the SGB. She did write a letter to the SGB and handed it to Mr Bester. The letter is in the bundles of documents. To date she has not received a response to that letter to the SGB. She later saw in the minutes of the SGB, contained in the bundles, that during June 2020 they discussed her performance and absenteeism. She denies that there were issues with her performance and attendance and she was never counselled or disciplined.
[17] She is of the view that the circular of the employer contained in the bundle, more specifically paragraphs 4.2 and 4.3 supports her expectation that her contract had to be extended until December 2020 since the post was vacant for the entire duration of 2020.
[18] Her post was advertised as an English home language post for the period July to December 2020. She applied and was interviewed, but was not appointed. Mr Olivier was appointed. However, after he was appointed, he never taught English home language, but instead taught all the subjects that she had previously taught, and he taught those subjects in Afrikaans. She is of the view that the principal and SGB were looking for a way to get rid of her. They then re-advertised her post as an English home language post, appointed another educator in that post, and then did not require the successful candidate to teach English, but instead he taught exactly what she had taught before.
[19] She admits that she has received a letter during early June 2020, advising her that her contract is coming to an end, and that she did not receive similar letters in the past. After her contract was not renewed she managed to find employment for 3 weeks during which time she earned R11 700. She is still unemployed.
[20] She is basing her expectation of renewal on the promises made by the principal, the circular of the WCED, the renewal of the contracts in the past, and the continued existence of the post. She even turned down other work because of the expectation that was created. She asks for compensation, equivalent to 6 months’ salary.
[21] Jacques Olivier testified that he is qualified to teach languages. He has previously taught English Home language at other schools and has taught in English in Cape Town. During 2020 he saw an advertisement for an English teacher at HP Williams. The post was from July until December 2020. He applied for the post. He was interviewed. He believes that the SGB would have known after the interviews that he can teach English. He was successful and appointed to the post and worked at the school from July until December 2020. After he started at the school, he was however never required to teach English. Instead he was only required to teach subjects in Afrikaans and never English Home language at HP Williams.
[22] Hendrik Leonard Haas testified that he was a member of the SGB of HP Williams in 2020. His children go to that school and he wants them to be taught in English. Unfortunately his experience was that even the English teacher Mr Bester cannot speak English properly. He therefore supported the move during the middle of 2020 to advertise for an English teacher.
[23] The post that was advertised and into which Mr Olivier was appointed was different from the post that applicant occupied. The school needed an English teacher.
[24] He has however come to the conclusion that the English teacher post was simply advertised in order to get rid of applicant and appoint another educator. He had formed that opinion because when Mr Olivier started working, it transpired that he was then not required to teach English but to teach subjects in Afrikaans.
[25] During a SGB meeting in in 2020 the performance and attendance of applicant was discussed. His view was that if there was a problem with attendance and performance, and if indeed there was counselling for that, and there is proof of all of this on record, then there was no need to renew applicant’s post. Apparently such proof did not exist.
Evidence on behalf of respondent
[26] Leonard Erasmus testified that he is the school principal of HP Williams and that he has been in that position since 2012. During 2019 the school approached applicant to enquire whether she was interested in a contract post at the school. Applicant was first employed at the school between June and December 2019 in a contract post.
[27] The reason why applicant was appointed in a contract post in 2019 was because a new HOD educator was appointed in 2019 after the school was allocated an additional new HOD post. An educator who resides in Gauteng was appointed to that post, but he could not commence immediately and therefore, the school required an external post level 1 educator to work on fixed term contract at the school against that post, while they are waiting for the newly appointed HOD to commence duties. In the meantime, another educator at the school would fulfil the HOD functions attached to the post.
[28] The new HOD would have commenced duties in January 2020. However, towards the end of 2019 the newly appointed HOD decided that he no longer wanted this post. Hence on very short notice, they became aware that the post would still be vacant as from January 2020 and that they would again require an educator to be appointed on fixed term contract. It is for this reason that they again approached applicant and asked whether she was prepared to work in the post from January until June 2020. She agreed and the necessary documents were signed.
[29] After the successful candidate indicated that he would no longer accept the HOD post, the WCED said that the post must be re-advertised. Towards the end of January 2020 the WCED however changed its mind and said the second best candidate who applied for the HOD post, which was Ms Golden, must be appointed to the post. Ms Golden previously worked at the school but transferred to another school in Velddrift from 1 June 2019. Ms Golden was only at the other school for the remaining few months of 2019, During 2019 she applied to come back to HP Williams.
[30] Ms Golden commenced duties in the HOD post at HP Williams as from February 2020. By then applicant was already appointed for the 6 months period until June 2020 and they had to honour that contract. He denies that he ever told applicant that her contract would be extended from July until December 2020. He has no such authority. He did not and could not have known in January 2020 that the school would as from July 2020 again have vacancies for which they can appoint fixed term contract educators. The post which applicant filled previously, was no longer available after Ms Golden was appointed. Applicant only remained in that post after Ms Golden commenced working because by then applicant had signed a fixed term contract until June 2020.
[31] Although he marked applicant’s contract appointment as an additional post on the WCED nomination forms it is only because the template form provided by the WCED only has four options namely additional post, leave, temporary appointment expires and death. None of these options were really applicable to applicant’s contract but the other three options were even less applicable and he then marked additional post. Applicant was however never appointed against an additional post.
[32] He can recall that at some stage during 2020 applicant came to his office and wanted to know if her contract would be extended. This was after Ms Reinecke resigned at the end of the first quarter of 2020 and the post of Ms Reinecke became vacant. Applicant then came to him with Mr Bester and thought that her contract could continue in the post of Ms Reinecke. She accused him of having promised her that her contract would be extended until December 2020. He denied that he had said that to her. There was also another post that became vacant in 2020 when an educator in the foundation phase, Ms Wilson resigned. In order to fill these two vacancies, the two posts were advertised, and candidates were interviewed.
[33] It was decided to advertise the one post as an English teacher post in the Intersen phase on a fixed term contract basis from 1 July to 31 December 2020. It was felt that the school needed an educator who has experience in teaching in English Home Language. Several candidates applied for this post and were interviewed. Applicant was one of the candidates who applied and was interviewed. Mr Olivier and Ms Van der Westhuizen were also amongst the candidates who applied for this post and were interviewed. They both had experience in teaching in English. Ms Van der Westhuizen had taught in English overseas and Mr Olivier had taught in English in Cape Town. Mr Olivier was the best candidate for this post and Ms van der Westhuizen was the second best candidate. Mr Olivier was accordingly appointed.
[34] The second post that became vacant was also advertised and after the interviews Ms Marie Van Zyl was appointed to that post. Ms Marie van Zyl then declined the appointment. When Ms Van Zyl declined the appointment, the school made several operational decisions. The first decision was to appoint Ms Van der Westhuizen, in this post. The reason for this was that Ms van der Westhuizen also had experience in teaching in English, was the second best candidate during the interviews for the post in which Mr Olivier was appointed, and the school required more teachers who have experience in teaching in English.
[35] He denies that the English post was created and advertised in order to get rid of applicant. He concedes that applicant’s performance and attendance was discussed at SGB meetings, but because her contract and post came to an end in any event, it was not really an issue that needed to be debated.
[36] He was asked to explain how it happened that Mr Olivier who was appointed to teach English, then ended up not teaching English, but teaching more or less the same subjects and grades in Afrikaans that applicant taught until June 2020. He explained that due to the fact that Ms Marie Van Zyl resigned, the school had to make operational changes. Those operational changes included the appointment of Ms Van der Westhuizen to the post into which Ms Van Zyl was appointed. The operational changes also included moving several educators who were moved to teach other subjects and other classes. Mr Olivier, Ms Van der Westhuizen and other educators, including a governing body educator were all affected by these operational decisions.
[37] As from July 2020 Ms Golden was actually supposed to teach the subjects and classes that applicant had taught but because Ms Golden felt that she (Ms Golden) had been building a relationship with the learners that she had been teaching since the beginning of 2020, she felt that it would be better for her to continue with those learners and classes that she had started teaching in February 2020.
[38] It is as a result of the operational moves that had to be made after the resignation of Ms Van Zyl, as well as the desire of Ms Golden to keep on teaching the learners that she had been teaching since February 2020, that Mr Olivier ended up teaching the classes and subjects in Afrikaans that applicant had taught until June 2020.
[39] Applicant was interviewed before she was appointed in June 2019. She was not again interviewed before her appointment for the period January to June 2020. She was again interviewed for the English contract post to be filled from July 2020 until December 2020, but she was unsuccessful.
VI ARGUMENTS
[40] Applicant submitted that she has proved a reasonable expectation of renewal and asked for compensation equivalent to six months’ salary. Mr Muller submitted that applicant did not have any reasonable expectation, that no dismissal took place and that her claim should be dismissed.
VII DISCUSSION
[41] The dispute that was referred to arbitration is an unfair dismissal dispute. It is in dispute whether applicant was dismissed. In terms of the Labour Relations Act the onus is on applicant to prove that she was dismissed. If she succeeds in proving this, the onus is on respondent to prove that the dismissal was fair. Section 186 of the LRA creates several forms of dismissal. Applicants’ claim is based on section 186(1)(b) of the LRA which reads as follows:
186 Meaning of dismissal
(1) 'Dismissal' means that-
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer-
(i) 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; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee;
[42] The applicant claims that when her contract was not renewed for the period 1 July 2020 until 31 December 2020, she was unfairly dismissed. She claims that she had a reasonable expectation based on promises made by the principal, but also based on a circular of the WCED, the renewal of the contract in the past, and the continued existence of the post.
[43] The applicant bears the onus of establishing that she had a reasonable expectation as contemplated in section 186(1)(b). In civil cases, factual findings are made based on a balance probabilities. Where the probabilities are evenly balanced an arbitrator may only find for the party upon whom the onus rests (which in this case is applicant), if he is satisfied on a balance of probabilities that the story of that party is true and the other is false.
[44] The enquiry to be conducted in determining whether an employee had a reasonable expectation as intended in section 186(1)(b) consists of both subjective and objective factors. The employee must have the subjective expectation that his contract would be renewed indefinitely, and that expectation must objectively be a reasonable expectation. The employee must in other words prove an objective basis for the creation of this expectation, apart from the subjective say-so or perception of the employee. The objective test requires a determination whether a reasonable employee in the circumstances prevailing at the time would have expected the renewal of the contract.
[45] Whether or not an expectation is reasonable depends on the conduct of the employer, what it had committed itself to, and what the applicant expected and was entitled to expect. Thus it cannot be based upon a misinterpretation of an assurance, undertaking or dealing, or a mere unsubstantiated belief of the person asserting it.
[46] Over the years a number of factors have been considered by the courts in assessing whether or not a reasonable expectation exists. These include, but are not limited to the following:
• The surrounding circumstances;
• The terms of the contract;
• Past practice or custom in regard to renewal;
• Promises or undertakings;
• Continued availability of the position;
• Whether reasonable notice of non-renewal was given;
• The reason for concluding the fixed term contract;
• The reason for termination;
The renewals of the fixed term contracts
[47] The contract of the applicant was renewed twice. She had contracts for the following periods at HP Williams:
• 01/07/2019 – 30/09/2019
• 01/10/2019 – 31/12/2019
• 01/01/2020 – 30/06/2020
[48] Frequent renewals of fixed term contracts may, depending on the circumstances weigh in favour of a reasonable expectation of further employment. However, the mere fact that a contract has been renewed a number of times is not in itself indicative of the existence of a reasonable expectation as intended in section 186(1)(b). All the other surrounding factors must also be considered.
The terms of the last contract between the parties
[49] The written terms of the contract between the parties clearly stipulate that the contract was a fixed term contract for the period 1 January 2020 to 30 June 2020. There is no suggestion in any of the documents relating to this contract that any undertaking was given to applicant that this contract will or may be renewed. Applicant also conceded that at the time when the contract was concluded, she knew that the contract would terminate at the end of June 2020.
The purpose for which the fixed term contract was concluded
[50] It is common cause that when applicant was appointed on contracts for the period 1 June 2019 to 31 December 2019, that was in order to act against the HOD post, in which an educator from Gauteng was appointed, but who had not commenced duties yet. As to why applicant was appointed on a fixed term contract for the period for 1 January to 30 June 2020, there is nothing in the evidence to suggest that the version of Mr Erasmus on this point is false or that his version is less probable than that of applicant. I therefore accept Mr Erasmus’ version in this regard.
[51] I accept the evidence of Mr Erasmus that the reason why applicant was again appointed on fixed term contract for the period 1 January 2020 to 30 June 2020, is because unexpectedly, towards the end of 2019, the educator from Gauteng who was appointed in the HOD post, advised that he would no longer be taking up that post. The WCED first indicated that this post must be re-advertised. Pending the filling of the HOD post, which was clearly not going to happen by 1 January 2020, the school again required the services of a fixed term contract educator and it was based on this that the fixed term contract of applicant for the period 1 January to 30 June 2020 was concluded.
[52] When the WCED later changed its mind and indicated that Ms Golden, the second best candidate who applied for the HOD post (which the Gauteng educator no longer wanted) may be appointed, applicant had already accepted an offer from the WCED to work on contract at the school until June 2020 and that contract had to be honoured, irrespective of whatever the 2020 post establishment for the school had said. Ms Golden only filled that position since February 2020. While it is so that the 2020 post establishment for the school reflected 10 educators, the WCED could not after it appointed Ms Golden in the HOD post, not honour the contract of applicant who already had a contract for the period January to June 2020 as this would have amounted to breach of contract. Neither could the WCED delay the appointment of Ms Golden until July 2020 when applicant’s contract expired, because the school required an educator who could perform the functions of an HOD and it is common cause that applicant could never and did not perform the HOD functions attached to the post.
[53] I also accept the evidence from Mr Erasmus that applicant was not appointed in an additional post. This evidence is supported by the findings I have made in the previous paragraphs.
[54] I also accept the explanations of Mr Erasmus that he selected the “additional post” block on the recommendation forms for the period January to June 2020 because the other options were even less applicable to applicant’s situation. When reading this form, it is clear that the evidence of Mr Erasmus in this regard is correct, and that his explanation in this respect is plausible.
[55] I accordingly find that applicant was not appointed in an additional post in 2020. Applicant was appointed against the post of the HOD for the period January 2020 to June 2020 because that post could still not be filled by 1 January 2020.
[56] When Ms Golden was appointed to that post in 2020, applicant already had a contract with the WCED for the period January 2020 to July 2020 and accordingly that contract had to be honoured.
[57] That was the rationale for applicant’s fixed term contract for the period January to June 2020. Accordingly, the rationale for applicant working on fixed term contract at the school, fell away as from 1 July 2020. This factor counts against a reasonable expectation of renewal.
The alleged promises
[58] The applicant claims that the principal Mr Erasmus promised her during January 2020 that her contract would be renewed again from July 2020 until December 2020. Mr Erasmus denies that he had ever made such promises to applicant.
[59] It is improbable that Mr Erasmus made such promises. He has no authority to appoint educators. Only the HOD of the Western Cape Education Department has jurisdiction to appoint educators, and may only do so once the SGB had recommended that educator for appointment. It would therefore be pointless for Mr Erasmus to make promises to applicant that she would be appointed, because he is neither the employer (the HOD of the WCED) and nor is he the SGB. He is merely one member of the SGB.
[60] Furthermore, Mr Erasmus would not have known in January 2020 that by July 2020 there would be another vacancy against which applicant’s contract could possibly be renewed.
[61] Lastly, if indeed such promises were made and applicant “accepted” such promises as she claims, then surely a written recommendation to record this would have been made, which applicant would have accepted. There is no such written recommendation.
[62] My finding is therefore that applicant has failed to prove the promises that she alleges Mr Erasmus had made to her. However, nothing turns on this. Even if I am wrong in this finding and even if Mr Erasmus did make such promises, then such promises by Mr Erasmus cannot in law give rise to a reasonable expectation and are simply irrelevant.
[63] It is trite law that in order for an expectation to be regarded as legitimate or reasonable, any promises or representations on which reliance is placed, must have been made by a person who actually has the lawful authority to implement those promises or expectations. Hence, unless the person who makes promises of appointment has the authority to make appointments, such promises cannot form the basis of any reasonable expectation of appointment or continued employment (either permanent or fixed term).
[64] The employer of educators who can appoint them is the provincial HOD of that education department. Only he or she has the power to appoint educators. Mr Erasmus is not the provincial HOD. He cannot and does not employ and appoint educators paid by the WCED. Neither is the SGB the employer of such educators. Mr Erasmus can only complete forms and process the recommendation of the SGB about the candidate that the SGB is recommending to the employer to appoint. He himself however does not have authority to make appointments. Only the HOD of the WCED can do that. Not even the SGB can make such an appointment. They only make a recommendation, and the employer is at liberty to refuse to make an appointment.
[65] Mr Erasmus does not even have the authority on his own to make recommendations to the WCED for the appointment of an educator. Only the SGB can do that, and although the principal is a member of the SGB he is only one member of the SGB. For the SGB to take decisions they must act through resolutions by majority vote. Educators who do not bother to read the Employment of Educators Act, which will tell them in no uncertain terms who can make appointments and how such appointments are made, only have themselves to blame if they rely on promises of individuals who have no authority to make appointments.
[66] For these reasons applicant’s reliance on alleged promises made by Mr Erasmus, does not assist her in proving a reasonable expectation.
The past practice and the legislation
[67] Applicant was well aware that in the past, before she could be appointed on a fixed term contract, several forms were completed. This included the written recommendation from the SGB for her appointment, and the letter of acceptance of such recommendation, signed by herself. And there is a reason why these forms are required and that is because of the legislative prescripts that I have already discussed.
[68] The legislation provides that it is the provincial HOD that makes an appointment and that he may only appoint an educator who has been recommended by the SGB of that school. Without such a recommendation from the SGB, he acts unlawfully and ultra vires if he makes an appointment. The SGB can however not make the appointment themselves, and cannot force the employer to appoint a specific candidate that they have recommended.
[69] Cooperation and agreement between the employer and the SGB is therefore necessary in order for a specific educator to be appointed and without such cooperation and agreement, that educator cannot be appointed.
[70] Applicant should have known that unless and until the SGB has completed a nomination form, nominating her for appointment for a specific period, and she has in writing accepted that nomination, she can not begin to commence forming any expectation of further employment, and that even if such documents are completed, it is the employer who has the final say and that completion of such forms cannot on its own give rise to any reasonable expectation.
[71] It is common cause that the SGB at no stage recommended applicant’s appointment for the period July to December 2020, and that applicant was at no stage asked to accept such a recommendation in writing, and in fact never did sign any document in which she has accepted such nomination in writing. She could not and did not because such nomination never existed.
The notice reminding applicant of the termination of her contract
[72] On 4 June 2020 the SGB wrote a letter to applicant in which they reminded her that her fixed term contract was terminating on 30 June 2020. It also invited her to apply for any other contracts at the school and wished her all the best of luck for the future. She conceded that this is the first time that she received a letter of this nature from the SGB of this school.
[73] While this factor its own can never determine the outcome of a dispute of this nature, notice of termination is a factor that can weigh in favour of concluding that the employee did not have a reasonable expectation of renewal, while failure to give notice is a factor that could weigh in favour of concluding that a reasonable expectation of renewal existed.
The alleged continued existence of the post
[74] Continued existence of the post after the employee’s contract has expired, is generally one of the factors that may, together with others, count in favour of a finding that the employee had a reasonable expectation of renewal of her contract.
[75] It is common cause that Mr Olivier who was appointed to teach in English between 1 July and 31 December, eventually taught in Afrikaans for that period and that he taught more or less the same subjects and classes that applicant taught until June 2020.
[76] Based on these facts, applicant submits that the post in which she had taught until June 2020 continued to exist between July and December 2020 and that the school only advertised the post as an English post in order to get rid of her. Mr Haas also testified that for the same reasons he is of the opinion that the school only advertised the post as an English post in order to get rid of applicant. I disagree with these opinions expressed by Mr Haas and applicant
[77] I have already held that applicant was never appointed on an additional post on 2020 and that she was merely appointed to act against the HOD post, and that by the time that the WCED appointed Ms Golden to the HOD post in February 2020, applicant was already appointed on a fixed term contract at the school until June 2020 and that this contract had to be honoured, despite the 2020 post establishment for the school.
[78] As to how it happened that Mr Olivier ended up not teaching in English but teaching in Afrikaans, and teaching the same subjects and classes that applicant taught until June 2020, Mr Erasmus gave an explanation, which I find probable.
[79] My finding is that there is no basis to find that Mr Erasmus’ version in this regard was not the truth or that it is less probable than applicant’s version. Since the onus rests on applicant, it means that also in this regard, I accept the version of respondent and not applicant’s version.
[80] The version of Mr Erasmus, which I accept is that in essence two posts, which had nothing to do with the post in which applicant was teaching until June 2020, became vacant at the school as a result of the resignations of Ms Wilson and Ms Reinecke. It was decided to advertise the one post as an English post and it is in this post that Mr Olivier was appointed. In the other post of Ms Reinecke that became vacant, Ms Marie Van Zyl was appointed, but after her appointment Ms Van Zyl declined the appointment. I accept the evidence of Mr Erasmus that due to the resignation of Ms Van Zyl, several operational decisions were taken.
[81] The first operational decision that was taken, was to appoint Ms Van der Westhuizen, the second best candidate who applied for the English post in which Mr Olivier was appointed to act in the post of Ms Van Zyl, the reason being that she had previously taught in English overseas.
[82] I pause here to remark that it seems common cause that there was a need at the school to appoint educators who have actual experience in teaching in English. Even Mr Haas, applicant’s own witness confirmed this. In fact he even testified that he wants his own children to be taught in English but that there were simply just no educators at the school who were capable of doing that. While applicant can speak English, she has no actual experience in having taught in English as a medium of instruction. Being able to speak English and having actual experience in teaching in English as a medium of instruction, is not the same thing. Hence, given the fact that both Mr Olivier and Ms van der Westhuizen had actual experience in teaching in English, it makes sense that the two of them were both appointed when Ms Van Zyl declined her appointment.
[83] Mr Erasmus testified that further operational decisions were made when Ms van Zyl declined the appointment, and when they decided to appoint Ms Van der Westhuizen. These operational changes included moving several educators who were then moved to teach other subjects and other classes. Mr Olivier, Ms Van der Westhuizen and other educators, including even a governing body educator were all affected by these operational decisions. I pause here to remark that managers have the right to re-arrange working structures due to the operational needs of the workplace.
[84] The operational needs that had to be addressed further included the fact that as from July 2020 Ms Golden was actually supposed to teach the subjects and classes that applicant had taught but because Ms Golden felt that she (Ms Golden) had been building a relationship with the children that she has been teaching since the beginning of the year, she felt that it would be better for her to continue with the children and classes that she had started teaching in February 2020. This seems to me to be a sensible operationally justifiable decision.
[85] It is as a result of the operational moves that had to be made after the resignation of Ms Van Zyl, as well as the desire of Ms Golden to keep on teaching the learners that she had been teaching since February 2020, that Mr Olivier then ended up teaching the classes and subjects in Afrikaans that applicant had taught until June 2020.
[86] I find that on a balance of probabilities these are the reasons why Mr Olivier did not in fact teach in English after his appointment, and why he ended up teaching the same subjects and classes as applicant had taught until June 2020.
[87] I find that the post that applicant had worked in until June 2020, no longer existed since July 2020. Mr Olivier was not appointed in the post in which applicant worked until June 2020. There was never any intention to advertise a post, simply in order to get rid of applicant. It is purely because of operational requirements, and operational decisions that had to be made, as well as the fact that Ms Golden had built up a relationship with her learners since February 2020, that Mr Olivier taught the same subjects and same classes as applicant had taught until June.
[88] I therefore find that the post in which Mr Olivier was appointed was not the post in which applicant worked until June 2020. It was a completely different post. Applicant applied for that post, was interviewed, and was not successful.
[89] It has therefore not been established that the post in which applicant had previously worked was still available between July and December 2020 and that another person then worked in that post. It was a completely different post in which Mr Olivier was appointed, and it is purely through coincidence, as a result of operational requirements that Mr Olivier taught the subjects and classes that applicant had taught previously. This factor weighs against a reasonable expectation of renewal.
Applying for a post and taking part in a recruitment process
[90] Before applicant first started working at the school in June 2019, she had to apply for the post, and was then interviewed. She was not again interviewed for the appointment for the period January 2020 to June 2020 and the reason for this was obviously that it was the same post and simply a renewal of the contract of 2019.
[91] However in respect of the post in which Mr Olivier was appointed as from July 2020 there was an advertisement, for which applicant applied, and was interviewed. Unfortunately applicant was not one of the best candidates and was not appointed. She was not even the second best candidate.
[92] The expectation provided for in section 186(1)(b) of the LRA is based on a “renewal” of the same contract. Where the contract is a completely new contract, section 186(1)(b) is generally not applicable because a new contract is not the same as the renewal of an existing contract and where an employee applies for an advertised position and submits herself to interviews, this is inconsistent with a reasonable expectation of automatic renewal . Given the fact that applicant applied for the post and even submitted herself to interviews, she must have realized that this is a new contract, that there was no question of an automatic renewal, and that unless she is the best of all the candidates who apply for the post, she cannot be appointed to the post. In this regard Mr Justice Tlhotlhalemaje has made the following remarks in Pikitup Johannesburg v Muguto:
To the extent that she had applied for the position, was shortlisted, interviewed and was unsuccessful, there can be no talk of a legitimate expectation, as any outcome related to that recruitment process led to a new dispute. Her conduct in relation to her active participation in the recruitment process is irreconcilable with her contentions that she had a legitimate expectation of a renewal of her fixed-term contract. (emphasis added)
Reliance on the Circular 0030/209 of the WCED
[93] Applicant has placed reliance on clauses 4.2 and 4.3 of the above circular. Clause 4.2 is not applicable because my finding is that the post in which applicant was appointed was not an additional contract post. Clause 4.3 is also not applicable because my finding is that the post against which applicant was appointed for the period January to June 2020, was no longer available between July and December 2020.
Concluding remarks
[94] When taking into account all the relevant factors, surrounding circumstances and complete factual matrix, I am satisfied that it has been established on a balance of probabilities that applicant never had any reasonable expectation of further fixed term employment after her last contract expired on 30 June 2020. Whatever expectations she might have formed, were simply her own subjective expectations. Objectively, these expectations were not realistic, reasonable or legitimate expectations. Accordingly applicant has failed to prove that she was dismissed. Therefore her claim must be dismissed.
AWARD
In the premises I make and publish the following order and award:
1. The applicant, Elsema Filander, was not dismissed as intended in section 186 of the LRA and did not have a reasonable expectation of further employment after 30 June 2020.
2. The applicant’s claim is dismissed.
3. No order as to costs is made.
______________________________ D P Van Tonder
ELRC Senior Panellist
In the matter between:
ELSEMA FILANDER Applicant
and
HOD, DEPARTMENT OF EDUCATION, WC Respondent
ARBITRATOR: D P Van Tonder
HEARD: 6 April 2021; 26 May 2021
FINALISED: 7 June 2021
DELIVERED: 20 June 2021
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1)(b) – Alleged Unfair Dismissal – Whether employee had a reasonable expectation of a further fixed term contract – Factors to be taken into account to establish whether employee has such reasonable expectation
ARBITRATION AWARD
I THE PARTIES
Applicant
[1] The applicant is Mrs Elesma Filander who appeared in person and represented herself.
Respondent
[2] Respondent is Head of the Western Cape Education Department, who was represented by an employee Mr Muller.
II PROCEDURAL HISTORY
[3] This matter was conciliated before another panellist but could not be settled. I was appointed as arbitrator and heard evidence on 6 April and 26 May 2021 via Zoom. The proceedings were digitally recorded. I received the final written closing arguments on 7 June 2021.
III THE ISSUES TO BE DETERMINED
[4] I am required to determine whether the applicant was dismissed and if so, whether such dismissal was fair, and if not, the appropriate relief.
IV BACKGROUND TO THE DISPUTE
[5] The applicant was employed by respondent on the following fixed term contracts as post level 1 educator at HP Williams Primary School in Stompneus Bay at a monthly salary of R25 661,47:
• 01/07/2019 – 30/09/2019
• 01/10/2019 – 31/12/2019
• 01/01/2020 – 30/06/2020
[6] Applicant’s contract was not renewed after it expired at the end of June 2020. Applicant claims that she had a reasonable expectation that her contract would be renewed until the end of December 2020 and that she was accordingly dismissed in terms of section 186(1)(b) of the LRA when her contract was not renewed. She accordingly asks for compensation equal to six months’ salary. Respondent disputes that applicant had any reasonable expectation of renewal and disputes that applicant was dismissed.
V THE EVIDENCE
Documentary evidence
[7] The parties handed in four pdf bundles of documents marked A1-20, A21-41, B 1-19 and C.
[8] I do not intend to summarise all the documentary evidence here, but will only refer to the most relevant documents:
• Letter of the SGB of HP Williams, dated 4 June 2020 addressed to applicant in which applicant is reminded that her contract is expiring on 30 June 2020 and in which she is advised that she can apply for any other post at the school;
• Letter signed by applicant on 13 January 2020 in which she accepts the nomination for a post level 1 educator post at HP Williams from 1 January until 30 June 2020;
• Nomination by the SGB of HP Williams for the appointment of applicant from 1 January 2020 until 30 June 2020;
• Staff establishment for 2020 issued by the WCED for HP Williams;
• Letter of appointment from the WCED appointing applicant at HP Williams for the period 1 January 2020 until 30 June 2020;
• Letter dated 11 June 2020 from applicant to the SGB about the nonrenewal of her contract and asking for certain information;
• Minutes of the SGB for a meeting held on 29 June 2020 during which meeting the advertisement for an English teacher was discussed, and during which applicant and her performance was also discussed;
• Circular 30/2019 issued by the WCED concerning post provisioning for 2020;
• Advertisement for a contract post at HP Williams from 1 July to 31 December 2020 for an English teacher in the Intersen phase;
• Letter dated 15 July 2020 by the SGB of HP Williams, addressed to applicant and advising her that she has not been successful for the position for which she applied and was interviewed.
Evidence on behalf of applicant
[9] Elesma Filander, the applicant testified that she was contacted in 2019 by the principal of HP Williams Primary, Mr Erasmus who asked her whether she was interested in a contract post at the school. She applied for the post and was recommended and appointed as a post level 1 educator at the school in two consecutive fixed term contracts during 2019. She was advised that the reasons why the school required a fixed term contract educator for 2019 was because the school was waiting for an HOD post level 2 educator to commence working at the school.
[10] She was however not required to perform the work of a post level 2 educator. Another educator at the school was doing the work of the HOD while the school was waiting for the HOD to commence duties. She was again approached and asked whether she was wiling to accept another fixed term contract appointment from January until June 2020 to teach the grade 6 class, which she taught in 2019 in grade 5. Discipline was a problem with that specific class and she was told that it was observed that she was good with discipline. The SGB then nominated her for a fixed term contract for the period January 2020 until 30 June 2020, which nomination she accepted, whereafter she was issued with an appointment letter for that period.
[11] In 2019 the school had a post establishment of 9 educators and for the 2020 year this increased to 10 educators. This was in terms of the post establishment that was issued to the school. After the principal received the new post establishment, he came to speak to her around the 27th of June 2020 and advised her that the school has received an additional post for 2020. He also advised her that Ms Golden is coming back into the HOD post and that applicant would now be at the school on a fixed term contract until December 2020.
[12] The way that she understood him is that Ms Golden would be appointed in the HOD post and she (applicant) would act in the additional new post until December 2020. She said to the principal that she accepts the offer to work at the school until December 2020. She was not asked to sign any new documents or contracts and the documentation still reflected that her nomination and contract was from January until June 2020. However, through this conversation with the principal and the promises he had made to her, an expectation was created with her that she would be employed at the school until December 2020.
[13] Mrs Golden returned to the school and commenced working at the school during early February 2020. Due to Covid19, the schools closed towards the end of February 2020 and they commenced working from home. While they were working from home, she became concerned about the documentation that had to be completed in respect of the extension of her contract from July until December 2020.
[14] She managed to make contact with Mr Erasmus, the school principal by 30 April 2020. She discussed the issue with him and he said that nothing is on the system yet but that there is still sufficient time left to complete the documents. During May 2020 she again spoke to Mr Erasmus and he then said to her that there was a new SGB and that he must speak to them.
[15] She advised Mr Erasmus that an expectation was created and that he must speak to the new SGB and advise them accordingly. The schools started on 1 June 2020 when some children started to return to school. After the SGB had a meeting in June 2020 she wanted to know from the principal what progress had been made. He did not answer her. When she heard from one SGB member, Ms van der Mest, that it was decided not to renew her contract, but that no reasons were provided, she confronted Mr Bester from the SGB who confirmed that her contract was not extended, but added that reasons were given, and that he cannot tell her what those reasons were.
[16] She then approached the principal in the presence of Mr Bester. The principal then confirmed that her contract was not extended. He said to her that if she is unhappy she must write to the SGB. She did write a letter to the SGB and handed it to Mr Bester. The letter is in the bundles of documents. To date she has not received a response to that letter to the SGB. She later saw in the minutes of the SGB, contained in the bundles, that during June 2020 they discussed her performance and absenteeism. She denies that there were issues with her performance and attendance and she was never counselled or disciplined.
[17] She is of the view that the circular of the employer contained in the bundle, more specifically paragraphs 4.2 and 4.3 supports her expectation that her contract had to be extended until December 2020 since the post was vacant for the entire duration of 2020.
[18] Her post was advertised as an English home language post for the period July to December 2020. She applied and was interviewed, but was not appointed. Mr Olivier was appointed. However, after he was appointed, he never taught English home language, but instead taught all the subjects that she had previously taught, and he taught those subjects in Afrikaans. She is of the view that the principal and SGB were looking for a way to get rid of her. They then re-advertised her post as an English home language post, appointed another educator in that post, and then did not require the successful candidate to teach English, but instead he taught exactly what she had taught before.
[19] She admits that she has received a letter during early June 2020, advising her that her contract is coming to an end, and that she did not receive similar letters in the past. After her contract was not renewed she managed to find employment for 3 weeks during which time she earned R11 700. She is still unemployed.
[20] She is basing her expectation of renewal on the promises made by the principal, the circular of the WCED, the renewal of the contracts in the past, and the continued existence of the post. She even turned down other work because of the expectation that was created. She asks for compensation, equivalent to 6 months’ salary.
[21] Jacques Olivier testified that he is qualified to teach languages. He has previously taught English Home language at other schools and has taught in English in Cape Town. During 2020 he saw an advertisement for an English teacher at HP Williams. The post was from July until December 2020. He applied for the post. He was interviewed. He believes that the SGB would have known after the interviews that he can teach English. He was successful and appointed to the post and worked at the school from July until December 2020. After he started at the school, he was however never required to teach English. Instead he was only required to teach subjects in Afrikaans and never English Home language at HP Williams.
[22] Hendrik Leonard Haas testified that he was a member of the SGB of HP Williams in 2020. His children go to that school and he wants them to be taught in English. Unfortunately his experience was that even the English teacher Mr Bester cannot speak English properly. He therefore supported the move during the middle of 2020 to advertise for an English teacher.
[23] The post that was advertised and into which Mr Olivier was appointed was different from the post that applicant occupied. The school needed an English teacher.
[24] He has however come to the conclusion that the English teacher post was simply advertised in order to get rid of applicant and appoint another educator. He had formed that opinion because when Mr Olivier started working, it transpired that he was then not required to teach English but to teach subjects in Afrikaans.
[25] During a SGB meeting in in 2020 the performance and attendance of applicant was discussed. His view was that if there was a problem with attendance and performance, and if indeed there was counselling for that, and there is proof of all of this on record, then there was no need to renew applicant’s post. Apparently such proof did not exist.
Evidence on behalf of respondent
[26] Leonard Erasmus testified that he is the school principal of HP Williams and that he has been in that position since 2012. During 2019 the school approached applicant to enquire whether she was interested in a contract post at the school. Applicant was first employed at the school between June and December 2019 in a contract post.
[27] The reason why applicant was appointed in a contract post in 2019 was because a new HOD educator was appointed in 2019 after the school was allocated an additional new HOD post. An educator who resides in Gauteng was appointed to that post, but he could not commence immediately and therefore, the school required an external post level 1 educator to work on fixed term contract at the school against that post, while they are waiting for the newly appointed HOD to commence duties. In the meantime, another educator at the school would fulfil the HOD functions attached to the post.
[28] The new HOD would have commenced duties in January 2020. However, towards the end of 2019 the newly appointed HOD decided that he no longer wanted this post. Hence on very short notice, they became aware that the post would still be vacant as from January 2020 and that they would again require an educator to be appointed on fixed term contract. It is for this reason that they again approached applicant and asked whether she was prepared to work in the post from January until June 2020. She agreed and the necessary documents were signed.
[29] After the successful candidate indicated that he would no longer accept the HOD post, the WCED said that the post must be re-advertised. Towards the end of January 2020 the WCED however changed its mind and said the second best candidate who applied for the HOD post, which was Ms Golden, must be appointed to the post. Ms Golden previously worked at the school but transferred to another school in Velddrift from 1 June 2019. Ms Golden was only at the other school for the remaining few months of 2019, During 2019 she applied to come back to HP Williams.
[30] Ms Golden commenced duties in the HOD post at HP Williams as from February 2020. By then applicant was already appointed for the 6 months period until June 2020 and they had to honour that contract. He denies that he ever told applicant that her contract would be extended from July until December 2020. He has no such authority. He did not and could not have known in January 2020 that the school would as from July 2020 again have vacancies for which they can appoint fixed term contract educators. The post which applicant filled previously, was no longer available after Ms Golden was appointed. Applicant only remained in that post after Ms Golden commenced working because by then applicant had signed a fixed term contract until June 2020.
[31] Although he marked applicant’s contract appointment as an additional post on the WCED nomination forms it is only because the template form provided by the WCED only has four options namely additional post, leave, temporary appointment expires and death. None of these options were really applicable to applicant’s contract but the other three options were even less applicable and he then marked additional post. Applicant was however never appointed against an additional post.
[32] He can recall that at some stage during 2020 applicant came to his office and wanted to know if her contract would be extended. This was after Ms Reinecke resigned at the end of the first quarter of 2020 and the post of Ms Reinecke became vacant. Applicant then came to him with Mr Bester and thought that her contract could continue in the post of Ms Reinecke. She accused him of having promised her that her contract would be extended until December 2020. He denied that he had said that to her. There was also another post that became vacant in 2020 when an educator in the foundation phase, Ms Wilson resigned. In order to fill these two vacancies, the two posts were advertised, and candidates were interviewed.
[33] It was decided to advertise the one post as an English teacher post in the Intersen phase on a fixed term contract basis from 1 July to 31 December 2020. It was felt that the school needed an educator who has experience in teaching in English Home Language. Several candidates applied for this post and were interviewed. Applicant was one of the candidates who applied and was interviewed. Mr Olivier and Ms Van der Westhuizen were also amongst the candidates who applied for this post and were interviewed. They both had experience in teaching in English. Ms Van der Westhuizen had taught in English overseas and Mr Olivier had taught in English in Cape Town. Mr Olivier was the best candidate for this post and Ms van der Westhuizen was the second best candidate. Mr Olivier was accordingly appointed.
[34] The second post that became vacant was also advertised and after the interviews Ms Marie Van Zyl was appointed to that post. Ms Marie van Zyl then declined the appointment. When Ms Van Zyl declined the appointment, the school made several operational decisions. The first decision was to appoint Ms Van der Westhuizen, in this post. The reason for this was that Ms van der Westhuizen also had experience in teaching in English, was the second best candidate during the interviews for the post in which Mr Olivier was appointed, and the school required more teachers who have experience in teaching in English.
[35] He denies that the English post was created and advertised in order to get rid of applicant. He concedes that applicant’s performance and attendance was discussed at SGB meetings, but because her contract and post came to an end in any event, it was not really an issue that needed to be debated.
[36] He was asked to explain how it happened that Mr Olivier who was appointed to teach English, then ended up not teaching English, but teaching more or less the same subjects and grades in Afrikaans that applicant taught until June 2020. He explained that due to the fact that Ms Marie Van Zyl resigned, the school had to make operational changes. Those operational changes included the appointment of Ms Van der Westhuizen to the post into which Ms Van Zyl was appointed. The operational changes also included moving several educators who were moved to teach other subjects and other classes. Mr Olivier, Ms Van der Westhuizen and other educators, including a governing body educator were all affected by these operational decisions.
[37] As from July 2020 Ms Golden was actually supposed to teach the subjects and classes that applicant had taught but because Ms Golden felt that she (Ms Golden) had been building a relationship with the learners that she had been teaching since the beginning of 2020, she felt that it would be better for her to continue with those learners and classes that she had started teaching in February 2020.
[38] It is as a result of the operational moves that had to be made after the resignation of Ms Van Zyl, as well as the desire of Ms Golden to keep on teaching the learners that she had been teaching since February 2020, that Mr Olivier ended up teaching the classes and subjects in Afrikaans that applicant had taught until June 2020.
[39] Applicant was interviewed before she was appointed in June 2019. She was not again interviewed before her appointment for the period January to June 2020. She was again interviewed for the English contract post to be filled from July 2020 until December 2020, but she was unsuccessful.
VI ARGUMENTS
[40] Applicant submitted that she has proved a reasonable expectation of renewal and asked for compensation equivalent to six months’ salary. Mr Muller submitted that applicant did not have any reasonable expectation, that no dismissal took place and that her claim should be dismissed.
VII DISCUSSION
[41] The dispute that was referred to arbitration is an unfair dismissal dispute. It is in dispute whether applicant was dismissed. In terms of the Labour Relations Act the onus is on applicant to prove that she was dismissed. If she succeeds in proving this, the onus is on respondent to prove that the dismissal was fair. Section 186 of the LRA creates several forms of dismissal. Applicants’ claim is based on section 186(1)(b) of the LRA which reads as follows:
186 Meaning of dismissal
(1) 'Dismissal' means that-
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer-
(i) 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; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee;
[42] The applicant claims that when her contract was not renewed for the period 1 July 2020 until 31 December 2020, she was unfairly dismissed. She claims that she had a reasonable expectation based on promises made by the principal, but also based on a circular of the WCED, the renewal of the contract in the past, and the continued existence of the post.
[43] The applicant bears the onus of establishing that she had a reasonable expectation as contemplated in section 186(1)(b). In civil cases, factual findings are made based on a balance probabilities. Where the probabilities are evenly balanced an arbitrator may only find for the party upon whom the onus rests (which in this case is applicant), if he is satisfied on a balance of probabilities that the story of that party is true and the other is false.
[44] The enquiry to be conducted in determining whether an employee had a reasonable expectation as intended in section 186(1)(b) consists of both subjective and objective factors. The employee must have the subjective expectation that his contract would be renewed indefinitely, and that expectation must objectively be a reasonable expectation. The employee must in other words prove an objective basis for the creation of this expectation, apart from the subjective say-so or perception of the employee. The objective test requires a determination whether a reasonable employee in the circumstances prevailing at the time would have expected the renewal of the contract.
[45] Whether or not an expectation is reasonable depends on the conduct of the employer, what it had committed itself to, and what the applicant expected and was entitled to expect. Thus it cannot be based upon a misinterpretation of an assurance, undertaking or dealing, or a mere unsubstantiated belief of the person asserting it.
[46] Over the years a number of factors have been considered by the courts in assessing whether or not a reasonable expectation exists. These include, but are not limited to the following:
• The surrounding circumstances;
• The terms of the contract;
• Past practice or custom in regard to renewal;
• Promises or undertakings;
• Continued availability of the position;
• Whether reasonable notice of non-renewal was given;
• The reason for concluding the fixed term contract;
• The reason for termination;
The renewals of the fixed term contracts
[47] The contract of the applicant was renewed twice. She had contracts for the following periods at HP Williams:
• 01/07/2019 – 30/09/2019
• 01/10/2019 – 31/12/2019
• 01/01/2020 – 30/06/2020
[48] Frequent renewals of fixed term contracts may, depending on the circumstances weigh in favour of a reasonable expectation of further employment. However, the mere fact that a contract has been renewed a number of times is not in itself indicative of the existence of a reasonable expectation as intended in section 186(1)(b). All the other surrounding factors must also be considered.
The terms of the last contract between the parties
[49] The written terms of the contract between the parties clearly stipulate that the contract was a fixed term contract for the period 1 January 2020 to 30 June 2020. There is no suggestion in any of the documents relating to this contract that any undertaking was given to applicant that this contract will or may be renewed. Applicant also conceded that at the time when the contract was concluded, she knew that the contract would terminate at the end of June 2020.
The purpose for which the fixed term contract was concluded
[50] It is common cause that when applicant was appointed on contracts for the period 1 June 2019 to 31 December 2019, that was in order to act against the HOD post, in which an educator from Gauteng was appointed, but who had not commenced duties yet. As to why applicant was appointed on a fixed term contract for the period for 1 January to 30 June 2020, there is nothing in the evidence to suggest that the version of Mr Erasmus on this point is false or that his version is less probable than that of applicant. I therefore accept Mr Erasmus’ version in this regard.
[51] I accept the evidence of Mr Erasmus that the reason why applicant was again appointed on fixed term contract for the period 1 January 2020 to 30 June 2020, is because unexpectedly, towards the end of 2019, the educator from Gauteng who was appointed in the HOD post, advised that he would no longer be taking up that post. The WCED first indicated that this post must be re-advertised. Pending the filling of the HOD post, which was clearly not going to happen by 1 January 2020, the school again required the services of a fixed term contract educator and it was based on this that the fixed term contract of applicant for the period 1 January to 30 June 2020 was concluded.
[52] When the WCED later changed its mind and indicated that Ms Golden, the second best candidate who applied for the HOD post (which the Gauteng educator no longer wanted) may be appointed, applicant had already accepted an offer from the WCED to work on contract at the school until June 2020 and that contract had to be honoured, irrespective of whatever the 2020 post establishment for the school had said. Ms Golden only filled that position since February 2020. While it is so that the 2020 post establishment for the school reflected 10 educators, the WCED could not after it appointed Ms Golden in the HOD post, not honour the contract of applicant who already had a contract for the period January to June 2020 as this would have amounted to breach of contract. Neither could the WCED delay the appointment of Ms Golden until July 2020 when applicant’s contract expired, because the school required an educator who could perform the functions of an HOD and it is common cause that applicant could never and did not perform the HOD functions attached to the post.
[53] I also accept the evidence from Mr Erasmus that applicant was not appointed in an additional post. This evidence is supported by the findings I have made in the previous paragraphs.
[54] I also accept the explanations of Mr Erasmus that he selected the “additional post” block on the recommendation forms for the period January to June 2020 because the other options were even less applicable to applicant’s situation. When reading this form, it is clear that the evidence of Mr Erasmus in this regard is correct, and that his explanation in this respect is plausible.
[55] I accordingly find that applicant was not appointed in an additional post in 2020. Applicant was appointed against the post of the HOD for the period January 2020 to June 2020 because that post could still not be filled by 1 January 2020.
[56] When Ms Golden was appointed to that post in 2020, applicant already had a contract with the WCED for the period January 2020 to July 2020 and accordingly that contract had to be honoured.
[57] That was the rationale for applicant’s fixed term contract for the period January to June 2020. Accordingly, the rationale for applicant working on fixed term contract at the school, fell away as from 1 July 2020. This factor counts against a reasonable expectation of renewal.
The alleged promises
[58] The applicant claims that the principal Mr Erasmus promised her during January 2020 that her contract would be renewed again from July 2020 until December 2020. Mr Erasmus denies that he had ever made such promises to applicant.
[59] It is improbable that Mr Erasmus made such promises. He has no authority to appoint educators. Only the HOD of the Western Cape Education Department has jurisdiction to appoint educators, and may only do so once the SGB had recommended that educator for appointment. It would therefore be pointless for Mr Erasmus to make promises to applicant that she would be appointed, because he is neither the employer (the HOD of the WCED) and nor is he the SGB. He is merely one member of the SGB.
[60] Furthermore, Mr Erasmus would not have known in January 2020 that by July 2020 there would be another vacancy against which applicant’s contract could possibly be renewed.
[61] Lastly, if indeed such promises were made and applicant “accepted” such promises as she claims, then surely a written recommendation to record this would have been made, which applicant would have accepted. There is no such written recommendation.
[62] My finding is therefore that applicant has failed to prove the promises that she alleges Mr Erasmus had made to her. However, nothing turns on this. Even if I am wrong in this finding and even if Mr Erasmus did make such promises, then such promises by Mr Erasmus cannot in law give rise to a reasonable expectation and are simply irrelevant.
[63] It is trite law that in order for an expectation to be regarded as legitimate or reasonable, any promises or representations on which reliance is placed, must have been made by a person who actually has the lawful authority to implement those promises or expectations. Hence, unless the person who makes promises of appointment has the authority to make appointments, such promises cannot form the basis of any reasonable expectation of appointment or continued employment (either permanent or fixed term).
[64] The employer of educators who can appoint them is the provincial HOD of that education department. Only he or she has the power to appoint educators. Mr Erasmus is not the provincial HOD. He cannot and does not employ and appoint educators paid by the WCED. Neither is the SGB the employer of such educators. Mr Erasmus can only complete forms and process the recommendation of the SGB about the candidate that the SGB is recommending to the employer to appoint. He himself however does not have authority to make appointments. Only the HOD of the WCED can do that. Not even the SGB can make such an appointment. They only make a recommendation, and the employer is at liberty to refuse to make an appointment.
[65] Mr Erasmus does not even have the authority on his own to make recommendations to the WCED for the appointment of an educator. Only the SGB can do that, and although the principal is a member of the SGB he is only one member of the SGB. For the SGB to take decisions they must act through resolutions by majority vote. Educators who do not bother to read the Employment of Educators Act, which will tell them in no uncertain terms who can make appointments and how such appointments are made, only have themselves to blame if they rely on promises of individuals who have no authority to make appointments.
[66] For these reasons applicant’s reliance on alleged promises made by Mr Erasmus, does not assist her in proving a reasonable expectation.
The past practice and the legislation
[67] Applicant was well aware that in the past, before she could be appointed on a fixed term contract, several forms were completed. This included the written recommendation from the SGB for her appointment, and the letter of acceptance of such recommendation, signed by herself. And there is a reason why these forms are required and that is because of the legislative prescripts that I have already discussed.
[68] The legislation provides that it is the provincial HOD that makes an appointment and that he may only appoint an educator who has been recommended by the SGB of that school. Without such a recommendation from the SGB, he acts unlawfully and ultra vires if he makes an appointment. The SGB can however not make the appointment themselves, and cannot force the employer to appoint a specific candidate that they have recommended.
[69] Cooperation and agreement between the employer and the SGB is therefore necessary in order for a specific educator to be appointed and without such cooperation and agreement, that educator cannot be appointed.
[70] Applicant should have known that unless and until the SGB has completed a nomination form, nominating her for appointment for a specific period, and she has in writing accepted that nomination, she can not begin to commence forming any expectation of further employment, and that even if such documents are completed, it is the employer who has the final say and that completion of such forms cannot on its own give rise to any reasonable expectation.
[71] It is common cause that the SGB at no stage recommended applicant’s appointment for the period July to December 2020, and that applicant was at no stage asked to accept such a recommendation in writing, and in fact never did sign any document in which she has accepted such nomination in writing. She could not and did not because such nomination never existed.
The notice reminding applicant of the termination of her contract
[72] On 4 June 2020 the SGB wrote a letter to applicant in which they reminded her that her fixed term contract was terminating on 30 June 2020. It also invited her to apply for any other contracts at the school and wished her all the best of luck for the future. She conceded that this is the first time that she received a letter of this nature from the SGB of this school.
[73] While this factor its own can never determine the outcome of a dispute of this nature, notice of termination is a factor that can weigh in favour of concluding that the employee did not have a reasonable expectation of renewal, while failure to give notice is a factor that could weigh in favour of concluding that a reasonable expectation of renewal existed.
The alleged continued existence of the post
[74] Continued existence of the post after the employee’s contract has expired, is generally one of the factors that may, together with others, count in favour of a finding that the employee had a reasonable expectation of renewal of her contract.
[75] It is common cause that Mr Olivier who was appointed to teach in English between 1 July and 31 December, eventually taught in Afrikaans for that period and that he taught more or less the same subjects and classes that applicant taught until June 2020.
[76] Based on these facts, applicant submits that the post in which she had taught until June 2020 continued to exist between July and December 2020 and that the school only advertised the post as an English post in order to get rid of her. Mr Haas also testified that for the same reasons he is of the opinion that the school only advertised the post as an English post in order to get rid of applicant. I disagree with these opinions expressed by Mr Haas and applicant
[77] I have already held that applicant was never appointed on an additional post on 2020 and that she was merely appointed to act against the HOD post, and that by the time that the WCED appointed Ms Golden to the HOD post in February 2020, applicant was already appointed on a fixed term contract at the school until June 2020 and that this contract had to be honoured, despite the 2020 post establishment for the school.
[78] As to how it happened that Mr Olivier ended up not teaching in English but teaching in Afrikaans, and teaching the same subjects and classes that applicant taught until June 2020, Mr Erasmus gave an explanation, which I find probable.
[79] My finding is that there is no basis to find that Mr Erasmus’ version in this regard was not the truth or that it is less probable than applicant’s version. Since the onus rests on applicant, it means that also in this regard, I accept the version of respondent and not applicant’s version.
[80] The version of Mr Erasmus, which I accept is that in essence two posts, which had nothing to do with the post in which applicant was teaching until June 2020, became vacant at the school as a result of the resignations of Ms Wilson and Ms Reinecke. It was decided to advertise the one post as an English post and it is in this post that Mr Olivier was appointed. In the other post of Ms Reinecke that became vacant, Ms Marie Van Zyl was appointed, but after her appointment Ms Van Zyl declined the appointment. I accept the evidence of Mr Erasmus that due to the resignation of Ms Van Zyl, several operational decisions were taken.
[81] The first operational decision that was taken, was to appoint Ms Van der Westhuizen, the second best candidate who applied for the English post in which Mr Olivier was appointed to act in the post of Ms Van Zyl, the reason being that she had previously taught in English overseas.
[82] I pause here to remark that it seems common cause that there was a need at the school to appoint educators who have actual experience in teaching in English. Even Mr Haas, applicant’s own witness confirmed this. In fact he even testified that he wants his own children to be taught in English but that there were simply just no educators at the school who were capable of doing that. While applicant can speak English, she has no actual experience in having taught in English as a medium of instruction. Being able to speak English and having actual experience in teaching in English as a medium of instruction, is not the same thing. Hence, given the fact that both Mr Olivier and Ms van der Westhuizen had actual experience in teaching in English, it makes sense that the two of them were both appointed when Ms Van Zyl declined her appointment.
[83] Mr Erasmus testified that further operational decisions were made when Ms van Zyl declined the appointment, and when they decided to appoint Ms Van der Westhuizen. These operational changes included moving several educators who were then moved to teach other subjects and other classes. Mr Olivier, Ms Van der Westhuizen and other educators, including even a governing body educator were all affected by these operational decisions. I pause here to remark that managers have the right to re-arrange working structures due to the operational needs of the workplace.
[84] The operational needs that had to be addressed further included the fact that as from July 2020 Ms Golden was actually supposed to teach the subjects and classes that applicant had taught but because Ms Golden felt that she (Ms Golden) had been building a relationship with the children that she has been teaching since the beginning of the year, she felt that it would be better for her to continue with the children and classes that she had started teaching in February 2020. This seems to me to be a sensible operationally justifiable decision.
[85] It is as a result of the operational moves that had to be made after the resignation of Ms Van Zyl, as well as the desire of Ms Golden to keep on teaching the learners that she had been teaching since February 2020, that Mr Olivier then ended up teaching the classes and subjects in Afrikaans that applicant had taught until June 2020.
[86] I find that on a balance of probabilities these are the reasons why Mr Olivier did not in fact teach in English after his appointment, and why he ended up teaching the same subjects and classes as applicant had taught until June 2020.
[87] I find that the post that applicant had worked in until June 2020, no longer existed since July 2020. Mr Olivier was not appointed in the post in which applicant worked until June 2020. There was never any intention to advertise a post, simply in order to get rid of applicant. It is purely because of operational requirements, and operational decisions that had to be made, as well as the fact that Ms Golden had built up a relationship with her learners since February 2020, that Mr Olivier taught the same subjects and same classes as applicant had taught until June.
[88] I therefore find that the post in which Mr Olivier was appointed was not the post in which applicant worked until June 2020. It was a completely different post. Applicant applied for that post, was interviewed, and was not successful.
[89] It has therefore not been established that the post in which applicant had previously worked was still available between July and December 2020 and that another person then worked in that post. It was a completely different post in which Mr Olivier was appointed, and it is purely through coincidence, as a result of operational requirements that Mr Olivier taught the subjects and classes that applicant had taught previously. This factor weighs against a reasonable expectation of renewal.
Applying for a post and taking part in a recruitment process
[90] Before applicant first started working at the school in June 2019, she had to apply for the post, and was then interviewed. She was not again interviewed for the appointment for the period January 2020 to June 2020 and the reason for this was obviously that it was the same post and simply a renewal of the contract of 2019.
[91] However in respect of the post in which Mr Olivier was appointed as from July 2020 there was an advertisement, for which applicant applied, and was interviewed. Unfortunately applicant was not one of the best candidates and was not appointed. She was not even the second best candidate.
[92] The expectation provided for in section 186(1)(b) of the LRA is based on a “renewal” of the same contract. Where the contract is a completely new contract, section 186(1)(b) is generally not applicable because a new contract is not the same as the renewal of an existing contract and where an employee applies for an advertised position and submits herself to interviews, this is inconsistent with a reasonable expectation of automatic renewal . Given the fact that applicant applied for the post and even submitted herself to interviews, she must have realized that this is a new contract, that there was no question of an automatic renewal, and that unless she is the best of all the candidates who apply for the post, she cannot be appointed to the post. In this regard Mr Justice Tlhotlhalemaje has made the following remarks in Pikitup Johannesburg v Muguto:
To the extent that she had applied for the position, was shortlisted, interviewed and was unsuccessful, there can be no talk of a legitimate expectation, as any outcome related to that recruitment process led to a new dispute. Her conduct in relation to her active participation in the recruitment process is irreconcilable with her contentions that she had a legitimate expectation of a renewal of her fixed-term contract. (emphasis added)
Reliance on the Circular 0030/209 of the WCED
[93] Applicant has placed reliance on clauses 4.2 and 4.3 of the above circular. Clause 4.2 is not applicable because my finding is that the post in which applicant was appointed was not an additional contract post. Clause 4.3 is also not applicable because my finding is that the post against which applicant was appointed for the period January to June 2020, was no longer available between July and December 2020.
Concluding remarks
[94] When taking into account all the relevant factors, surrounding circumstances and complete factual matrix, I am satisfied that it has been established on a balance of probabilities that applicant never had any reasonable expectation of further fixed term employment after her last contract expired on 30 June 2020. Whatever expectations she might have formed, were simply her own subjective expectations. Objectively, these expectations were not realistic, reasonable or legitimate expectations. Accordingly applicant has failed to prove that she was dismissed. Therefore her claim must be dismissed.
AWARD
In the premises I make and publish the following order and award:
1. The applicant, Elsema Filander, was not dismissed as intended in section 186 of the LRA and did not have a reasonable expectation of further employment after 30 June 2020.
2. The applicant’s claim is dismissed.
3. No order as to costs is made.
______________________________ D P Van Tonder
ELRC Senior Panellist
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ELRC 302 -20 /21 NW
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