PSES 978-19/20WC

Panelist : Alta Reynolds

Case Number : PSES 978-19/20WC

Date of Award : 28 September 2021


In the ARBITRATION between:


Matiso, Silas Siphiwo
(Union/Applicant)

and

Department of Education – Western Cape
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair dismissal relating to the non-renewal of a fixed-term contract of employment or retention in indefinite employment in terms of sections 186 (1) (b) (i) and (ii) of the Labour Relations Act 66 of 1995 as amended (the LRA) at the premises of the Department of Education- Western Cape at York Park Building, St John’s Street, in George, Western Cape, and was concluded over two sittings on 25 and 26 August 2021.

2. Present for the referring employee (the Applicant) were Ms Roemé van der Merwe (Attorney with R van der Merwe Attorneys as representative) and Mr Silas Siphiwo Matiso (the Applicant). Present for the employer the Department of Education – Western Cape (the Respondent) were Mr Roy Jansen (Employee Relations Officer as representative), Mr Anwar Allie (Assistant Director : Employee Relations as observer) and Ms Danielle Volkwyn-Frans (Employee Relations Officer as observer). Legal representation of the Applicant was permitted due to the nature of the dispute.

3. It is noted that this matter was previously withdrawn by the Applicant at arbitration on 25 January 2021. The Applicant had thereafter applied for reinstatement of the dispute in terms of clause 50 of the Dispute Resolution Rules of the ELRC Constitution. I subsequently issued a ruling on 20 April 2021 that the ELRC may reinstate the Applicant’s referral and set it down again for arbitration, as has been done. The parties did not object to me as the Panelist who had dealt with the previous proceedings relating to this dispute to also arbitrate the dispute.

4. The proceedings were conducted in English, with digital and electronic recordings made. It was agreed that Mr Jansen for the Respondent could also make a recording of the proceedings, on the understanding that the official digital record will be that of the Panelist. Ms van der Merwe for the Applicant elected to not also make their own recording of the proceedings.

5. The parties did not require an explanation of the arbitration proceedings.

6. Reference was made to the Pre-Arbitration Minutes dated 15 October 2020, of which certain amendments were made in the facts established as common cause and in dispute as detailed in this award.

7. No preliminary issues required to be addressed.

8. Written closing arguments were requested and agreed to at the last sitting of the arbitration. It was agreed by both parties that they would submit their closing arguments simultaneously to the ELRC’s Case Management Officer for forwarding to the Panelist and one another via e-mail, by not later than 10 September 2021. The parties were informed that the award due date would be amended accordingly. The parties’ written closing arguments were received on the due date.

ISSUE TO BE DECIDED

9. The purpose of this arbitration is to determine whether a dismissal had taken place as contemplated in terms of sections 186 (1) (b) (i) and (ii) of the LRA relating to a reasonable expectation by the Applicant, Mr S S Matiso, that his fixed-term contract would be renewed, or that his employment would be retained on an indefinite basis by the Respondent, the Department of Education – Western Cape. Further, that should a dismissal have taken place, whether it was fair on both procedural and substantive grounds. It was confirmed that the onus of proof would be on the Applicant in this matter. The relief sought was compensation if a dismissal was established and unfairness was found.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

10. The Applicant was employed on fixed-term contracts of employment with the Respondent as follows: 9 March 2016 to 31 March 2016 for 24 days; 15 August 2016 to 26 August 2016 for 11 days; 1 March 2017 to 30 June 2017 for one school term; 1 July 2017 to 31 Dec 2017 for two school terms; 1 January 2018 to 31 December 2018 for a full school year; 1 January 2019 to 30 June 2019 for 6 months; and then from 1 July 2019 to 31 December 2019 for 6 months. The Applicant was not appointed on a fixed-term contract in January 2020. He served as a post level 1 Educator in these fixed-term contracts at Isalathiso Primary School in Mossel Bay. His Persal number was 12084956 and he earned R37 7643.00 per annum or R31 470.25 per month as at 31 December 2019. In his last fixed-term contract he reported to Ms Betty Fipaza, the School Principal of Isalathiso Primary School. Two permanent Educator posts at the same school were advertised in vacancy list 1 of 2019, being posts 621 and 622, which were both post level 1 positions. The Applicant applied for the two posts, was shortlisted and interviewed and was the second nomination for both posts, but was not appointed as the successful candidate in either post. Ms Lusanda Mkhetshane was subsequently appointed in post number 621 effective from 1 September 2019 and Ms Funeka Msengana was appointed in post number 622 effective from 1 October 2019.

The following facts were in dispute:

11. Whether the Respondent had created a reasonable expectation that the Applicant’s fixed-term contract would be renewed or that he would be offered indefinite employment.

12. Whether a dismissal had taken place as contemplated in terms of 186(1) (b) (i) or (ii) of the LRA, and if so, whether this dismissal was fair on both procedural and substantive grounds.

SURVEY OF EVIDENCE AND ARGUMENT

13. The Applicant, Mr Silas Siphiwo Matiso, testified under oath for himself and did not call any other witnesses.

14. Ms Rozelle Smith-Neethling Circuit Manager of Circuit 2 and Ms Betty Fipaza, the Principal of Isalathiso Primary School, testified under oath for the Respondent.

15. Documents were handed in by the Respondent, which the Applicant party confirmed that they would also rely upon, and were admitted as evidence. Mr Anwar Allie for the Respondent explained the documentation required for the filling of contract posts whether they are substantive vacant posts, substitute posts or posts additional to establishment such as growth posts and that this process is outside that of advertised posts for permanent or promotional posts as advertised in bulletins. It was agreed that evidence would be led with respect to these fixed-term contracts and the rollover of contracts.

16. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

17. The Applicant’s case was that fixed-term appointments can have many benefits when utilised for proper and lawful purposes, but that these contracts are frequently abused by employers and are generally regarded as providing less security to employees than permanent employment. Section 186(1)(b) of the LRA provided an exception to the general common law position that an employer’s failure to renew a contract or to renew it on less favourable terms constituted unfair and actionable conduct. In the circumstances that section 186(1)(b) of the LRA did not apply, an employer could free itself of an unwanted employee on the automatic termination of a fixed-term contract without having to follow the required process for fair dismissal as provided for in the LRA. The amendments to section 186(1)(b) of the LRA included that if there was a reasonable expectation by an employee that a fixed-term contract would be renewed and that it was not renewed or that it was renewed on less favourable terms, or that the employee had a reasonable expectation that the contract would be made permanent, constitutes a dismissal. The Applicant would lead evidence that he had a reasonable expectation that the fixed-term contract would be renewed, alternatively that the contract would be made permanent, which evidence would in itself confirm the unfair dismissal of the Applicant. The Applicant would also show that the Respondent was in a position to provide indefinite employment, which the Respondent was responsible for creating an expectation that indefinite employment would be offered and that the expectation held by the Applicant was reasonable. The relief sought was compensation, not re-employment nor reinstatement.

18. Mr Silas Siphiwo Matiso, the Applicant, testified as follows under oath in her evidence in chief: He confirmed his qualifications, registration with the South African Council of Educators and continuous training and development courses sponsored by the Respondent. He provided his experience as an Educator, which was as follows: He started his career as an Educator in 1992 at Indwe Secondary School in Mossel Bay and joined Isalathiso Primary School in Mossel Bay in 1994. End of 2002/beginning of 2003, he resigned to relocate with his family to Manchester, England, when his wife, who is a registered nurse, had acquired a nursing post there. Whilst he qualified to teach in England he for three months worked for British Gas. He stayed in England for a decade until 2013 and returned to South Africa in July 2013. Upon his return he roamed around and worked at several schools, such as Garden Route Primary School since 2013 and Thembalethu Primary School in George from 2014. From around August 2014 he was loaned to Indwe Secondary School where he first taught. From August 2014 to December 2015 he was remunerated by the Respondent. Whilst at Tembalethu Primary School he was remunerated primarily by the School Governing Body (SGB). From March 2016 he was back at Isalathiso Primary School in a SGB post where he had a dispute about being partially paid. Since he started with the SGB post he had been continuously with Isalathiso until December 2019. He was at home in January 2020. Since he was known in the community he was called by Garden Route Primary School to help them from February 2020 for the rest of 2020, when he was remunerated by the SGB. He was called back to Garden Route Primary School in February 2021 to help out again until March 2021 in a SGB post. From April 2021 he was appointed in a post level 1 Educator post with Garden Route Primary School and paid by the school, which post he still occupied. He had checked with his representative regarding this, who had advised him that it would not unfluence his case if he took up this appointment. He had made an error on his CV when he was under stress to apply for the advertised posts in March 2019 when he indicated that he was appointed as Acting Deputy Principal at Isalathiso Primary School from 22 July 1994 to 22 July 2016 whereas he had been out of the country from 2003 to 2013. The Respondent had his records of employment and physical qualifications at the time and should have queried this before he was invited for an interview. The subjects that he taught according to his CV were however correctly reflected. When he was approached by the former Principal of Isalathiso Primary School to go back to that school in 2016 he did not complete a DPE1 Application for an Advertised Teaching Post form since he was then appointed in a SGB position and had written a letter to the SGB, not an application form. He was appointed in March 2017 in a growth post and he completed a form similar to the DPE1 Application for an Advertised Teaching Post. He only recalled that he completed a DPE1 form once for the Administrator at the school (Isalathiso) for the remainder of his contracts with the school in February/March 2017 when he was to be remunerated by the Respondent and then again in December 2018 for January 2019. In 2019 it was the first time he completed a DPE1 or similar form twice in one year. As to the specific reason that he was appointed on a fixed-term contract and why this post was available since March 2017, his response was the he was invited to the school because they knew his abilities and that there was no teacher for that class and he had been with the school on the outside (with the SGB) since 2016. His Line Managers/Heads of Department had never queried his performance as Educator. To his knowledge there was no difference in the duties of himself and his colleagues who were appointed permanently from March 2017 to 31 December 2019. He believed that his contract that ended 31 December 2019 would be renewed and indefinitely because they were happy with his performance, which applied to all the previous times when his contract was renewed. As to whether there was any action from the Respondent that made him believe that his contract would be renewed indefinitely, it was based on the response that the Respondent was pleased with his teaching experience. He was aware in 2019 of the two permanent posts that became available. He did apply for the two posts on the last day of closure after the Principal told him to apply on the due date and colleagues had told him to apply. As to whether he had an expectation to get one of the permanent posts, he did not know why he was called for an interview since he was under the impression that his contract would be renewed indefinitely. As he was previously in a Deputy Principal post the increase in learner numbers could only be assessed once a cycle had run for a year to see if the increase remained, and cannot be dealt with in two months. His contract was always renewed due to the growth and the increase in learner numbers, but the post did exist. He was eligible for conversion as a post level 1 Educator from temporary to permanent employment in terms of the ELRC Collective Agreement 4 of 2018 (the Collective Agreement) relating to the appointment and conversion ot temporary educators to posts on the educator establishment, since he had been employed in a temporary capacity for a continuous period of three months and had met the criteria to be considered for conversion. He was referred to the relevant factors to determine a reasonable expectation in terms of the Collective Agreement. He signed contracts at the beginning of each year and was informed when he signed when the contract would end. Despite this, he got the impression that his contract would be renewed, since every year when the school closed a new timetable for the next year was prepared and when your name appeared there you became a need. According to his knowledge as a former Deputy Principal this was the strict procedure and process to be followed if someone was to be appointed. Although he was informed that his contract would end at a certain date he still believed it would be renewed based on satisfactory feedbacks relating to his performance from his Line Managers and Heads of Department (HODs). He did not know why in certain instances the appointment process was only started after a contract was renewed. From March 2017 to December 2019 the Respondent acted consistently in renewing his contracts and he signed once at the beginning of the year and he was just informed that he would be needed all the time. He was shocked that he had to apply for the two permanent posts since he expected that his contract would be renewed because the school and HODs were satisfied with his performance and he did not expect to ever be invited for an interview since he had been with the school continuously and expected to be granted the position. The Principal had told him in the last week of September 2019 that based on the school establishment he would still be needed in 2020, which he was always informed about in the past.

19. Mr Matiso testified as follows under cross-examination: He regarded himself as an honest person. During the time that he was previously Deputy Principal at Isalathiso Primary School he also acted as Principal for the few days when the Principal was not present, but did not act as Deputy Principal in any other school. In the employment history of his Curriculum Vitae (CV) he had stated that he acted as Deputy Principal from 1995 to 1996, but this was an error. He had aligned his CV to the advertised vacant posts but it had never been in his mind to apply for a post, and based on the advertisement he met its needs. As to whether he had stated in his CV that he obtained two degrees in one year, it was not to mislead the Respondent, but because of human error because he had applied on the evening of the closure for applications. When he had signed that he declared that the information provided was complete and correct to the best of his knowledge, he regarded his CV as correct because he made sure that the information supplied was correct, although it was a human error on the evening of the application. He did not have Social Science as a major subject, but it was his teaching experience that counted. As Deputy Principal he was part of the School Management Team (SMT) and knew that a substitute post was for when a female Educator went on maternity leave and a male Educator went on paternity leave. One could not expect a substitute post to be made permanent. He explained that a growth post was created when there was an increased number of learners in a school establishment and that one could not be appointed permanent in a growth post. A substantive vacant post was one that was vacant and a person could be appointed permanently in the post. He agreed that he was appointed in a growth post in 2018. He responded to the question on whether he agreed that there was no expectation that he could be appointed permanently in a growth post that his expectation was the continuous renewal of his contract. He agreed that if a growth post is taken away that there would not longer be a need for his services. He also agreed that they were informed in January 2019 that the school would be given two posts on establishment to replace the growth posts. He agreed too that the needs of the school can change. They were not told in January 2019 that the two posts would be advertised, but were told this as the year continued. He was told that his contract related to one of the two growth posts which had now become permanent on establishment, and would be advertised, but he had no intention to apply for any post. In the event that he did not apply for the two posts and other candidates were nominated he did not believe that it would be the end of his services with the Respondent due to the continuous renewal of his contracts. It was the School Principal who made him believe this. He was aware that he could apply for a post but it did not give him the right to the post. He responded to the question whether his expectation was very subjective that the continuous renewal of contracts at the school led to this expectation. In 2017 if he was on contract for a year and in 2018 there was another contract and the school decided not to renew it for him. He would not be satisfied if someone else was appointed in the contract. He understood a fixed-term contract was fixed with with a start and end date. He did not know that because it was important to have a body teaching in a class while the Respondent’s administrative processes were slow, that it was allowed for someone to take up the post and the paperwork would only be completed afterwards. He was aware that if you taught in one of the Respondent’s posts that you would not get paid if the nomination forms were not completed and that every time he got a contract post he had to complete the nomination forms, which he completed during his service with the Respondent. He did not agree as a Deputy Principal that an Educator with good performance and experience should be wasted and not be appointed permanently, like him. His legitimate expectation was however not based on doing a good job, but on continuous renewal of his contracts. With respect to the conversion provisions from temporary to permanent employment, he agreed that he was not appointed in an approved substantive vacant post, but in a growth post. He confirmed that his dispute did not relate to the interpretation and application of a collective agreement but to the non-renewal of a contract in terms of the certificate of non-resolution issued for the dispute. He was informed in 2019 that his contract was not going to be renewed in 2020 but it came as a shock to him in the manner that it happened and he was only informed in the corridors and by his Line Manager as delegated by the Principal about this in September 2019. Nobody every informed him that his contract was indefinite and he signed a contract for a specific period. He did not get a salary advice in January 2019 which he only received in July 2019. When he signed for this he was shocked to see his name amongst the list of permanent Educators, which contributed to the expectation of the continuous renewal of his contracts. He confirmed that he was presently employed by the Respondent at the present school (Garden Route Primary School) from April 2021 on contract, but could not recall the end date. He was paid end April 2021 which meant that he had completed nomination forms. He considered himself out of work since 2020 because of the notion of expectation of continuous renewal of his contract in a specified institution. At the present school he started from recall in March 2020 and a SGB post in February 2021 and in April 2021 he completed the nomination form in the school he was currently with. He had both a subjective and objective expectation that he would be made permanent because of the continuous renewal of his contract. He confirmed again that the legitimate expectation for the renewal of his contract was not based on his performance and experience but on the continuous renewal of his contracts.

20. Mr Matiso testified as follows in re-examination: Apart from the points he indicated as human error in his CV he did not lie in his application for the advertised posts. He had considerable experience in all subjects such as social sciences which he taught even before he left the country. The two qualifications in the same year as indicated in his CV were also due to human error. When the two permanent posts became available in 2019 he was still under the impression that the post that he was in would still be available after 2019 due to the continuous renewal of his contracts since that class was always his class, even when bursary holders were appointed. He was shocked when he signed for his January salary advice in July that he had to sign on the sheet amongst the permanent employees, which contributed to his expectation. Although he had testified that he was in a growth post and knew it could not become permanent, he expected it to become permanent in 2019 when it was declared as such and there was still the continuous renewal of his contract. He understood the legitimate expectation to be based on the continuous renewal of contracts and the subjective expectation to be based on the feelings associated with this expectation.

THE RESPONDENT’S EVIDENCE

21. The Respondent’s case was that the Applicant was never dismissed by them and that his contract came to an end. When he was appointed, as will be testified by the Principal and the Circuit Manager, the Applicant was appointed in a growth post. The Principal and Circuit Manager would explain that the Respondent allocates temporary posts to a school. Isalathiso Primary School was allocated two growth posts based on the fluctuation of learner numbers, of which the Applicant occupied one. The Applicant was previously a Deputy Principal before he re-entered the Department of Education as a post level 1 Educator and he knew he could not be made permanent in a growth post. In 2019 the Respondent allocated the school two permanent posts and had to do a needs analysis on how to utilise the two posts. The Principal would testify that the Applicant was informed that the school got two posts which will be advertised and that he could apply for both the posts. The Applicant was also made aware that when dealing with an appointment in an advertised post that the Respondent had to give preference to bursary holders and new entrants in education. With regard to legitimate expectation, the Applicant was kept advised of the situation during discussions with the Principal and Circuit Manager and the Respondent would prove that there was no legitimate expectation (of contract renewal or indefinite employment). The Respondent’s position was that the Applicant’s contract came to an end, that he was not dismissed and that he was not entitled to any compensation. They pointed out that after 2020 the Applicant was still employed for periods on contract with the Respondent.

22. Ms Rozelle Smith-Neethling, Circuit Manager of the Respondent, testified as follows under oath in her evidence in chief: She was employed with the Respondent as Circuit Manager for Circuit 2 in Mossel Bay. She explained her duties as, amongst others, being the management and governance of leadership in public schools, which includes nomination processes and admission at schools. Her role in nomination processes was to act as resource person into promotional posts. She had been employed with the Respondent a total of 31 years in the teaching profession and the last five years as a Circuit Manager. As Circuit Manager she managed the Principals of 24 schools in the circuit. She had knowledge of the procedures to appoint someone on contract and explained that contract posts normally occurred in schools on several conditions. For example when a person is sick and a substitute is needed the SGB will do a nomination and she would sign off the recommendation for the contract appointment. Contract appointments are also made when schools have a growth post when there is an increase in learner numbers, which is normally in the first term and a person will be nominated in a contract position in such a post. The nominated person will complete a form and the Principal will inform the the person in the contract post what the duration of the contract will be. At some stage it was recommended to only have a contract appointment for a growth position per term, but was then awarded a longer contract until the end of the year as some form of continuity was needed for learners. In the event that an Educator was urgently needed such as due to illness, an appointment would be made and the forms would be completed afterwards for Head Office approval. A person could even be in the class for several months without pay until all the documents are completed. When faced with an advertisement for a post, you could not write yourself into a post that you did not qualify for or align your CV with what is in the advertisement. She confirmed that she knew the Applicant and had read through the advertisement for the posts and the Applicant’s CV, as well as the attached qualifications. She was referred to the Applicant’s qualifications, his subjects, the contents of the CV and the advertisement and commented that the subjects that he was qualified in did not match the advertisement, although in his CV the subjects of Social Science and English would have matched the advertisement. When you applied for a post you do not submit copies of qualifications, only the CV consisting of the different sections and your teaching and work experience and positions held, with the last thing to be done on the CV is that you declare that the information provided is complete and correct and if it is found to be false then your application could be denied or you could be put out of the post. On the day of the selection shortlisting process the SGB nomination committee only sits with the candidate’s CV, which they take as a true reflection and the candidate could be shortlisted for interviewing, with the certified copies of all documents only submitted when he/she is interviewed. Based on his CV the Applicant would have been shortlisted, but it was drafted in such a way to match the advertisement and was not a true reflection of his qualifications. No other problems were found with the other sections of the Applicant’s CV. Given that the Applicant had testified that he was in a growth post in 2017 and 2018 she did not believe that it would have been possible that the Applicant could have a legitimate expectation that he would be made permanent because a growth post is a contract post with a start and end date. A growth post only becomes part of the staff establishment when the school maintains the growth in numbers and will then become a vacant substantive post.

23. Ms Smith-Neethling testified as follows under cross-examination: She was referred to the Criteria for Post Profile: Teacher PL1 for post number 622 of vacancy list 1 of 2019 for the Applicant dated 16 May 2019, which contained the shortlist criteria for that post. She could not comment why there were no scores for the Applicant for three of the criteria without studying the Applicant’s CV, but assumed that those elements were not captured in the Applicant’s CV and that no score would be zero. When the Respondent made appointments they did not only look at qualifications but also experience, with experience taken into account at certain posts levels, with the level for Principal needing seven years’ experience, Deputy Principal needing five years and a Head of Department three years’ experience. Experience is not taken into account at post level 1, when the recruitment and selection process is aimed to get bursary holders and new entrants into the system, and it is looked at whether the candidate is qualified for the phase and subjects to be taught. She saw alignment of the CV with the advertisement when the advertisement required something and this is then put in the CV and it would be lying if you did not possess those qualifications and experience. A growth post usually became available during the year. It happened in most of their schools that learner numbers decline during the year due to migration and drop outs, which differs from school to school and community to community. She was aware that the Applicant was appointed in a growth position in March 2017 and that he was again appointed in growth posts during 2018 and 2019. She responded to the question that since there was a pattern of an excess in learners over the three years, whether there was also an excess of learners in 2020, that the two growth posts became part of the staff establishment at end 2018 and were added as substantive vacant posts to the staff establishment. These two posts were were then advertised in the 2019 vacancy list, which the Applicant applied for and were both subsequently filled.

24. Ms Smith-Neethling testified as follows under re-examination: The staff establishment is issued at the end of the year for the next year. If the learner numbers remain stable over time the growth posts will be added to the staff establishment, which happened end 2018 for 2019, whereafter the two posts were advertised in 2019.

25. Ms Betty Fipaza, Principal of Isalathiso Primary School, testified as follows under oath in her evidence in chief: She confirmed she was employed by the Respondent as Principal at Isalathiso Primary School and that she knew the Applicant. The Applicant previously held the position of Deputy Principal at the school and when he returned in 2016 he was appointed in a SGB post and was then appointed in a growth post in 2017 and 2018 until 31 December 2018. He was aware that he was in a growth post. The post that he held was advertised in 2019, he was not appointed in the post and he acted in this post until end 2019 when his contract ended. He was aware end 2019 that his contract would not be renewed in 2020 and knew that he was in a growth post which could not become permanent. The post was advertised in 2019 in the vacancy list as a permanent vacant post. She confirmed the Applicant’s testimony that she informed him in September 2019 that his contract would not be renewed. There was no response from the Applicant since he knew the post was advertised and he had applied for the post. She did not instruct him to apply for the post. It is their duty to inform the Educators that a vacancy list is out, which is printed out and raised in staff meetings and briefings. They did not go to individuals and tell them the vacancy is there. The Applicant knew the vacancy list was there and he applied like anybody else. The Applicant did not lodge a grievance or complain as to why the post is being advertised when he was informed that it was going to be advertised.

26. Ms Fipaza testified as follows under cross-examination: She confirmed that the Applicant was in a growth post in 2017 and 2018 and in a substantive vacant post in 2019.

27. No re-examination of this witness was required by the Respondent.

CLOSING ARGUMENT

28. Written closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here for the sake of brevity, but have been referred to and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

29. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the Respondent, the Department of Education –Western Cape, had created a reasonable expectation to the Applicant, Mr Silas Siphiwo Matiso, that his fixed-term contract would be renewed in 2020, or that his employment would be retained on an indefinite basis in 2020 after his last fixed-term contract terminated on 31 December 2019. Further, if it is found that such an expectation had been created, whether a dismissal took place when his contract was not renewed and when he was not offered indefinite employment and finally, whether such dismissal was fair on both procedural and substantive grounds and to grant the appropriate relief if unfairness is found.

30. The relevant provisions in terms of section 186 Meaning of dismissal and unfair labour practice and meaning of ‘Dismissal’ at section 186(1) of the LRA, are the following:

(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;

31. It was common cause that the Applicant was employed on seven fixed-term contracts as a post level 1 Educator at Isalathiso Primary School in Mossel Bay over the period from 9 March 2016 to 31 December 2019 and that he was not appointed again on a fixed-term contract in January 2020. The dates and duration of these contracts were as follows:

9 March 2016 to 31 March 2016 for 24 days
15 August 2016 to 26 August 2016 for 11 days
1 March 2017 to 30 June 2017 for one school term
1 July 2017 to 31 Dec 2017 for two school terms
1 January 2018 to 31 December 2018 for a full school year
1 January 2019 to 30 June 2019 for six months
1 July 2019 to 31 December 2019 for six months

It was confirmed in the parties’ evidence that the Applicant’s fixed-term contracts from 1 March 2017 to 31 December 2018 were in growth posts and that he in the last two contracts from 1 January 2019 to 31 December 2019 acted in a substantive vacant post.

32. It was also common cause that the Applicant had during this period applied for two permanent level 1 Educator posts at Isalathiso Primary School advertised in vacancy list 1 of 2019, being posts 621 and 622, for appointment in 2019 and that he was shortlisted, interviewed and recommended by the Interviewing Panel as the second nomination for both posts. He was however unsuccessful and appointments were subsequently made in the two posts during September 2019 and October 2019.

33. It is noted that the Applicant did not dispute the interviewing and selection process for the advertised posts in the arbitration proceedings, nor did he aver that he was the most suitable candidate for appointment in either of those positions, which would in any event have been the subject matter of a different dispute for an alleged unfair labour practice relating to promotion.

34. It became common cause during the arbitration proceedings that the Applicant was since 1992 employed as an Educator, commencing at Indwe Secondary School in Mossel Bay and since 1994 held appointments as Head of Department and finally as Deputy Principal at Isalathiso Primary School at the time he resigned to relocate in 2003 to the United Kingdom with his family upon his wife taking up employment there in the nursing profession. Further, that when he returned to South Africa in 2013 after around ten years in the teaching profession in the United Kingdom, he was employed in temporary teachings posts as a post level 1 Educator at schools such as Garden Route Primary School, Thembalethu Primary School and again at Indwe Secondary School.

35. The Applicant confirmed during his testimony in the arbitration proceedings that since his last fixed-term contract with the Respondent terminated on 31 December 2019, he had occupied temporary School Governing Body (SGB) Educator posts with Garden Route Primary School in Mossel Bay from February 2020, which was a school that he had been previously taught at. Further, that he was appointed in a post level 1 Educator position on contract at this school since April 2021, where he was still currently employed and remunerated again by the Respondent.

36. The Applicant party’s version was that the he in 2019 had no intention to apply for the two vacant positions at Isalathiso Primary School since he was under the impression that his fixed-term contract would still be renewed, despite the two vacant posts which were advertised, and that he at the last minute had applied for the vacant posts on the recommendation of the School Principal Ms Betty Fipaza, in the course of which late application he made certain errors on his Curriculum Vitae (CV) relating to his date of employment and qualifications. He ascribed these mistakes due to human error and did not misrepresent himself nor mislead the Respondent by aligning his CV with the advertisements. When the Principal encouraged him to apply for the permanent vacant posts it created the expectation to him of indefinite employment. The fact that he saw his name on the permanent employees’ pay sheet during 2019 when he signed for his pay slip also made him believe that his employment would be indefinite. He furthermore was not exluded from the conversion measures from temporary to permanent post level 1 Educators in terms of section 6B of the Employment of Educators Act 76 of 1998 (the EEA) and contended that he met the criteria to be considered for conversion from temporary status to that of permanent status.

37. With regard to the expectation that his fixed-term contract would be renewed, the Applicant party had contended that although the he was aware that his appointments were of a fixed-term nature, the Respondent kept on renewing his contracts, which he believed was due to his qualifications, experience and good performance of his duties, and created the legitimate expectation that his contract would once again be renewed in January 2020, without the necessary procedures having to be followed for these appointments. Although the Applicant’s fixed-term contracts related to growth positions based on a temporary increase in learner numbers, which he understood could not become a permanent position as also testified by Ms Smith-Neethling the Circuit Manager, Ms Fipaza the School Principal had testified that the growth position that the Applicant occupied had become a substantive vacant post (which was subsequently advertised and was one of the posts that he applied for).

38. The Applicant party argued further that in terms of section 198B(3) of the amended LRA (relating to fixed-term contracts with employees earning below the earnings threshold) where an employee is employed for a period exceeding three months, the employer is required to show that the work that an employee is employed to do is of a limited or definite duration or to provide any other justifiable reason for the continued use of a fixed-term contract. Should the employer fail to do that, then in terms of section 198B(5) the employee’s employment will be deemed to be of indefinite duration. The Applicant party made reference to case law relating to the factors to be considered in determining the existence of a reasonable expectation of the renewal of a fixed-term contract or permanent employment and that a subjective expectation must be objectively justifiable. The Applicant party in argument also referred to case law relating to the lawfulness of automatic termination clauses in contracts of employment such as fixed-term contracts and in which it was found that such automatic termination clauses were against public policy, also that the wording in a fixed-term contract that renewal of the contract or permanent employment should not be expected, is not sufficient to exclude the expectation of renewed employment when the employer’s practice contradicts this.

39. The Applicant party also referred to the Employment Equity Act 55 of 1998 (the EEQA), with the distinction made between equality versus equity in the workplace, with reference to case law which highlighted that unfair indirect discrimination could apply when a fixed-term employment relationship is repeatedly renewed for years and an employee is deprived of the benefits associated with permanent employment.

40. The Respondent’s version and argument in turn was that the Applicant was never dismissed but that his fixed-term contract came to an end and that a fixed-term contract will automatically terminate when the end date agreed between the parties is reached, with no need for notice to be given. No legitimate expectation was created by the Respondent that the Applicant would be appointed permanently. The Applicant had testified that he was previously a Deputy Principal and was familiar with the purpose of growth posts, and confirmed that he was contracted in growth posts which he knew could not be made permanent.

41. The Respondent contended further as follows: Although specific fixed-term contracts of employment were not issued by the Respondent (in response to my question in this regard to view the wording of the contract), that the A3(E) Nomination for Appointment as Teacher nomination forms sufficed for this purpose, that the example provided in the Respondent’s bundle of documents contained a date of appointment and date of termination, that the Applicant was familiar with these forms and had testified that he could not be paid by the Respondent if he did not sign the applicable nomination forms.

42. The Respondent also submitted that the Applicant was well aware that his contract will come to an end at the end of December 2019 and had testified that the Principal of Isalathiso Primary School had informed him that his contract would not be renewed. During cross-examination he had also confirmed that nobody told him that his employment would be indefinite. In the Applicant’s own evidence he confirmed that he was made aware during 2018 that his contract would not be renewed in the growth post that he had occupied since the Respondent had allocated two new posts to the school and would advertise these posts according to the needs of the school in the 2019 vacancy bulletin. The Principal had testified that the Applicant was requested or encouraged to apply for these posts, which he did and was an indication that he knew that he was not going to automatically be appointed permanently. The Applicant furthermore did not lodge a formal grievance when he was told that his contract would not be renewed. Although the two successful candidates were already appointed in the advertised posts from 1 September 2019 and 1 October 2019 respectively, the Applicant was carried additional to establishment to 31 December 2019 for the Respondent to honour its fixed-term contract with the Applicant until the date of its expiry. The Respondent referred to case law in support of their version and argument.

43. The Respondent was also of the view that the Applicant was dishonest in his CV since he had indicated information on his CV which was not true, which he had attributed to human error due to the fact that he was told to apply for the advertised posts and had done this at the last minute. Examples cited were that he had declared in his CV that he had obtained two degrees in the same year and had provided fraudulent information regarding his major subjects at University. The Applicant had further admitted that he aligned his CV to fit the advertisement for the two posts. Ms Smith-Neethling the Circuit Manager had testified that they only considered the CV when they shortlisted candidates and would only request the other relevant documents later, such as proof of qualifications. If the Applicant was the successful candidate nominated by the SGB, the Respondent’s Directorate: Recruitment and Selection would not have appointed him due to the false information and he would have been charged with dishonesty. They submitted that the Applicant was not a credible witness, that he twisted his evidence to suit his case that he had a legitimate expectation to be appointed permanently and that he was evasive in responding to his own representative’s questions.

44. With respect to the parties’ aforementioned averments and the case at hand, I refer to the following extracts from the Employment of Educators Act 76 of 1998 (the EEA) as amended, which governed the Applicant’s employment with the Respondent and are deemed as relevant to this dispute:

Definitions
“educator” means any person who teaches, educates or trains other persons or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education centre and who is appointed in a post on any educator establishment under this Act;

It is noted that this definition would include persons who are appointed on fixed-term contracts on a school’s educator establishment.

5. Educator establishments
(2) The educator establishment of any public school, further education and training institution, departmental office or adult basic education centre under the control of a provincial Department of Basic Education shall, subject to the norms prescribed for the provisioning of posts, consist of the posts allocated to the said school, institution, office or centre by the Head of Department from the educator establishment of that department.
(3) For the purposes of this Act –
(a) the power to create a post under this section shall include the power to grade, to regrade, to designate, to re-designate, to convert or to abolish the post; and
(b) the power to allocate a post under this section shall include the power to re-allocate the post.

It is noted from this section that only the provincial Head of Department has the power to create, amend, abolish and allocate posts at public schools.

6. Powers of employers
(1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator –
(a) in the service of the Department of Basic Education shall be made by the Director-General; or
(b) in the service of a provincial Department of Basic Education shall be made by the Head of Department.
(3) (a) Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.

It is derived from this section that there is no right to automatic appointment in a post on a school’s establishment and that a process needs to be complied with for appointment, which includes that any appointment may only be made on the recommendation of a SGB by the provincial Head of Department. The statute itself therefore does not create the expectation of permanent employment.

6B. Conversion of temporary employment to permanent employment
The Head of Department may, after consultation with the governing body of the public school, convert the temporary appointment of an educator appointed to a post on the educator establishment of the public school into a permanent appointment in that post without the recommendation of the governing body.

Again it is noted that the provincial Head of Department is the official authorised to confirm such a conversion.

7. Appointments and filling of posts
(1) In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution of the Republic of South Africa, 1996 (Act No 108 of 1996), and which include the following factors, namely –
(a) the ability of the candidate; and
(b) the need to redress the imbalances of the past in order to achieve broad representation.
(2) A person may be appointed under this Chapter –
(a) in a permanent capacity, whether on probation or not;
(b) in a temporary capacity for a fixed period, whether in a full-time, in a part-time or in a shared capacity; or
(c) on special contract for a fixed period for a particular assignment, whether in a full-time or in a part-time capacity.

It is therefore confirmed in the EEA that appointments may be made on fixed-term contracts.

45. Of particular relevance too in this matter is Collective Agreement 4 of 2018 dated 25 September 2018 concluded by the parties to the ELRC titled The Appointment and Conversion of Temporary Educators to Posts on the Educator Establishment (the Collective Agreement), as also referred to by the parties. This Collective Agreement takes cognisance of the provisions of section 186(1)(b) of the LRA, and is also intended to give effect to section 6B of the EEA with respect to the appointment of temporary educators to funded, substantive and vacant level 1 posts at public schools, of which the relevant paragraphs are as follows:

1. PURPOSE OF THE AGREEMENT
The purpose of this agreement is to:
1.1 regulate the appointment of temporary educators to posts on the educator establishment of public schools;
1.2 provide for the employment security of temporary educators;
1.3 regulate the conversion of temporary educators to permanent educators.

4.4 Dispute Resolution
Any dispute arising from the application or interpretation of this collective agreement shall be referred to the Council for resolution in terms of its dispute resolution procedures.

4.8 Definitions
4.8.2.5 “first-time applicant” means an applicant contemplated in section 6A of the Employment of Educators Act.
4.8.2.9 “temporary educator” means an educator contemplated in paragraph 1.1 who is appointed in terms of a contract of employment that terminates on the occurrence of a specified event, the completion of a specified task or a fixed date, other than an employee’s normal or agreed retirement age;

46. Annexure A of the Collective Agreement elaborates further as follows:

1. PROCEDURES FOR THE APPOINTMENT OF TEMPORARY EDUCATORS
1.1 If a funded, substantive and vacant level 1 post needs to be filled urgently, then:
1.1.1 The school principal must obtain from the department’s database the names of the following educators who are qualified and able to fill the post:
1.1.1.1 first-time applicants to whom the employer has a contractual obligation to appoint in terms of the bursary awarded to the applicant and who could act in the post;
1.1.1.2 any other first-time applicants; and
1.1.1.3 qualified unemployed educators.
1.1.2 Preference must be given to the educator in the order set out in paragraph 1.1.1 of Annexure A.
2. JUSTIFIABLE REASONS FOR THE APPOINTMENT OF TEMPORARY EDUCATORS
2.1 The employer may employ an educator in a temporary capacity if –
2.1.1 a temporary appointment is authorised or required by the Employment of Educators Act;
2.1.2 the work for which the educator is employed is of a limited or definite duration; or
2.1.3 there is any other justifiable reason for fixing the term of the employment contract.
2.2 A justifiable reason for employing an educator in a termporary capacity includes, but is not limited to, the following –
2.2.2 the educator is employed on account of a temporary increase in the volume of work, which is not expected to endure beyond 12 months;

3. RELEVANT FACTORS TO DETERMINE A REASONABLE EXPECTATION
In any dispute concerning whether an educator had an objectively reasonable expectation as contemplated in section 186(1)(b) of the LRA, a person determining the dispute must take into account all relevant factors, including:
3.1 the purpose of and reason for the temporary contract;
3.2 the provisions of the employment contract and any other agreements;
3.3 the conduct of the employer, including whether the employer has acted consistently, the nature of any undertakings by the employer and whether the undertakings were given by a person with the requisite authority;
3.4 the law, practice or custom relating to the renewal of temporary contracts or the conversion of temporary contracts to permanent ones;
3.5 the extent to which there have been repeated renewals;
3.6 the availability of a post on the educator establishment;
3.7 the rights and entitlements of the governing body of the public school;
3.8 the public interest; and
3.9 the nature and scale of undertaking the provision of public schooling.

It is noted that these factors by and large correspond with those established in the case law referred to by the parties.

4. THE CONVERSION OF TEMPORARY EDUCATORS TO PERMANENT EDUCATORS
4.1 Application
This paragraph applies to temporary educators who are appointed on a fixed-term contract to a funded, substantive and vacant level 1 post at a public school that is on the approved educator establishment. It does not apply to temporary educators who substitute permanent educators who are, for whatever reason, absent from their posts.
4.2 Eligibility for Conversion
4.2.1 A temporary educator may only be appointed permanently to funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.1 the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion;
4.2.1.2 the temporary educator qualifies for the post in question;
4.2.1.3 the temporary educator is registered with South African Council of Educators (SACE); and
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended and section 10 of the Public Service Act, 1994 (Proclamation No 103 of 1994), as amended.
4.3 Requirements
4.3.1 A temporary educator may only be appointed permanently to a funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment.
4.3.2 A temporary educator may only be appointed permanently to such a post if the post cannot be filled by a:
4.3.2.1. permanent educator who qualifies for the post and who is in addition of the educator establishment;
4.3.2.2. first-time applicant to whom the employer has a contractual obligation to appint in terms of the bursary awarded to the applicant; or
4.3.2.3 any other first-time applicant; and
4.3.2.4 the temporary educator is not excluded in terms of the provisions of paragraphs 4.3.3 to 4.3.5 of this Annexure.

46. All the provisions of paragraphs of 4.3.3 to 4.3.5 are not repeated here, save to note as follows under 4.3.3 that the conversion of a temporary educator to a permanent educator may be refused under certain circumstances, of which the following is relevant:
4.3.3.2 the Head of Department decides to follow the normal recruitment and selection processes;

The conversion procedures are also detailed under paragraph 4.4 which entails that the school Principal must make written submissions to the Respondent’s district office and that the Principal and the SGB must also submit written confirmation that there are no educators as referred to in paragraph 4.3.2 who could be appointed to that post.

47. Circular 0006 of 2019 dated 5 January 2019 provided more explanatory detail of the conversion process and added that temporary or contract educators who wished to apply for the conversion of their temporary employment to permanent employment in terms of section 6B of the EEA must submit a completed DPE1 (Application for Appointment) form and a letter of motivation via the SGB to the Respondent.

48. It is noted from the evidence that even if the Applicant had been eligible for conversion in terms of the foregoing provisions, that he had not applied for conversion in the form described above. Furthermore, that if a conversion had been applied for by the Applicant, the Collective Agreement provides that the Head of Department could still refuse the conversion and decide to follow the normal recruitment and selection process.

FINDING

49. I have considered all the evidence and argument, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The case references supplied by the parties were also referred to and considered and are not repeated here again. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:

50. I am fully aware that the onus of proof is on the Applicant in this matter, whom I do not believe on this occasion has been able to fully discharge the onus of proof as required, for the main reasons as provided below.

51. The Applicant confirmed that the dispute that he referred was for an alleged unfair dismissal relating to the non-renewal of a fixed-term contract of employment, alternatively that he was not retained in nor offered indefinite employment by the Respondent after a reasonable expectation of both renewal and indefinite employment having been created by the Respondent.

52. The relevant factors to determine such a reasonable expectation as contained in paragraph 3 of the Collective Agreement which was crafted between the parties to the Council, were considered and it as found as follows with respect to these factors and the supporting evidence presented by the parties:

53. It was not disputed that the purpose of the fixed-term contracts that the Applicant was employed in since March 2017 were to accommodate the temporary growth in learner numbers at Isalathiso Primary School, which the evidence supported could only be assessed at the end of the year for the following year when enrolments of learners were received. The Circuit Manager had testified that these numbers could decrease (fluctuate) during a school year due to migrations, drop outs and other factors, which would justify the temporary and fixed-term nature of the contracts that the Applicant was employed in. It was only after two years at the end of 2018 when the learner numbers were maintained and became stable that it was confirmed that the two growth posts at Isalathiso Primary School could be made part of the permanent educator establishment from 2019.

54. Although no written fixed-term employment contracts for the Applicant were supplied in evidence, admitted documentation in the form of a Nomination for Appointment as Teacher was supplied by the Respondent, without which the Applicant could not be remunerated by the Respondent and which the Applicant confirmed he was aware of. The Applicant had furthermore confirmed that he was made aware of the start and end dates of the fixed-terms periods of employment by the school Principal, as corroborated by the evidence of the Principal, Ms Fipaza. The Applicant was therefore at all times aware of the nature and duration of his employment with the Respondent.

55. No allegations were made nor evidence produced that the Respondent had acted inconsistently. The Applicant could also not supply any objective evidence as to any undertakings made by the Respondent with respect to either the future renewal of his contract or indefinite employment. Such undertakings or expectations would reasonably have emanated from his superior, being the school Principal, who would in any event not have had the authority to make such an undertaking since the prescripts of the EEA are clear that only the Head of Department is authorised to decide on all matters relating to the creation of or filling of posts. Ms Fipaza’s evidence that she did not make any such undertakings nor created such expectations is accepted, despite the Applicant having suggested that she had created such an expectation when she had encouraged him to apply for the permanent vacant posts. The Applicant had also contended that he was led to believe that his employment would be indefinite when he saw his name on the permanent educators’ pay sheet during 2019 when he signed for his pay slip. The Applicant however did not confirm this assumption with the Respondent by enquiring as to why his name appeared on that list.

56. The Applicant had repeatedly stated that his expectation of renewal of his contract or indefinite employment was primarily because of the continuous or repeated renewals of his fixed-term contracts. He had also made reference during his testimony to his good work performance and experience as an Educator, but did not cite this as the prime reason for the expectation of renewal or permanent employment. The Applicant did not refer to any explicit verbal or written undertakings made to him by any representative of the Respondent. As to whether there was any action from the Respondent that made him believe that his contract would be renewed indefinitely, he referred to the response that the Respondent was pleased with his performance and teaching experience, as based on the feedback he received from his Line Managers and Heads of Department. Although this may have been the Applicant’s subjective interpretation of why he was entitled to renewal of his contract or indefinite employment, the objective facts however did not support this interpretation, save that there was a post available on the educator establishment and the repeated renewals of his contract, for which justifiable reasons were established.

57. The growth post that the Applicant occupied was confirmed on the school’s educator establishment for 2019 as a permanent position, which he still occupied in a temporary acting capacity during 2019 while the recruitment and selection process for this position took place. It was common cause that he applied for the two vacant substantive posts and was unsuccessful, which would confirm to him that he would not be offered permanent employment in these posts or that his appointment in either of the posts would not be automatic. The EEA details the conditions that apply to the filling and creation of posts, which confirms that an automatic appointment into a substantive vacant post cannot be made even if an Educator was acting in such as post. The Applicant as a previous Deputy Principal would have been familiar with the provisions of the EEA and processes to be followed when appointments are made, hence there could have been no reasonable expectation that he would automatically be appointed in the vacant permanent post without applying for it. Since the school’s two growth posts fell away during 2019 when these were absorbed into the permanent establishment, which he was made aware of, there could also have been no expectation that he would be offered a new fixed-term contract in 2020 since no such growth post was available for 2020.

58. The Applicant had testified that he would have been eligible for conversion from temporary to permanent employment in terms of the provisions of the Collective Agreement since he met the conversion eligibility requirements. Ms Fipaza had confirmed that the Applicant was appointed in growth posts in 2017 and 2018 and acted in one of the substantive vacant posts in 2019 which he had applied for. These conversion provisions could possibly have created an expectation for him of permanent employment, but was not raised by the Applicant as the main basis for his legitimate expectation, which was instead based on the continuous renewal of his contracts. Even if the provisions of the Collective Agreement had applied to the Applicant, the documentary evidence supports that such conversion would also not have been automatic, with procedures and conditions which required to be complied with. The Collective Agreement also stated clearly that any dispute arising from the application or interpretation of the collective agreement shall be referred to the Council (the ELRC) for resolution in terms of its dispute resolution procedures, which has not been the case here, and would be the subject matter of a different dispute referral relating to the interpretation and application of a collective agreement.

59. The Applicant had not disputed his non-appointment into the two advertised posts which he had applied for, although the Respondent had produced evidence surrounding why he would not have been successful and to also cast doubt as to his honesty in the manner that he aligned his CV to the advertisement and how it reflected on his credibility in these arbitration proceedings. If the Applicant had raised such a dispute then it would also have been the subject matter of a different dispute referral for an alleged unfair labour practice relating to promotion.

60. The Applicant party also referred to the Employment Equity Act 55 of 1998 (the EEQA), and that the repeated employment in fixed-term contracts would deprive the Applicant of the benefits associated with permanent employment and could amount to unfair indirect discrimination. If that was indeed the Applicant’s contention, such a dispute requires to be referred in terms of the provisions of the EEQA and not the LRA.

61. In conclusion, in the circumstances I could not find, on the balance of probabilities, that the Respondent had created a reasonable expectation that the Applicant’s fixed-term contract would be renewed or that he would be retained in or offered indefinite employment by the Respondent. As a consequence I do not find that a dismissal had taken place as contemplated in section 186(1) (b) of the LRA.

62. As an observation, and I must point out as not being a finding in this matter, it was curious to note that the Applicant did not seek reinstatement nor re-employment on a new fixed-term contract or in a permanent position as relief should a dismissal be established and if the dismissal was found to be unfair, which is normally the relief sought in a dispute of this nature. Instead he sought compensation as relief. In addition he testified that he did obtain a fixed-term contract with Garden Route Primary School from February 2020 after his fixed-term contract with Isalathiso Primary School terminated on 31 December 2019 and that he was still employed at that school, first in SGB posts and currently in a post level 1 Educator position on contract effective from April 2021 and has been remunerated by the Respondent since then. It is noted that the dispute referral was received by the ELRC on 20 February 2020, when the Applicant had already taken up this other temporary appointment. The reasonable inference is therefore that the Applicant has not been without a source of income in the profession for the full period since his contract with the Respondent terminated, which makes one wonder as to what he wished to achieve with this referral to the ELRC when he could have pursued other avenues in an attempt to address his source of dissatisfaction with the Respondent.

AWARD

63. The Respondent, the Department of Education – Western Cape, did not create a reasonable expectation to the Applicant, Mr Silas Siphiwo Matisa, that his fixed-term contract of employment would be renewed in 2020 or that he would be retained in employment or offered employment on an indefinite basis after his fixed-term contract terminated on 31 December 2019.

64. The Applicant was therefore not dismissed by the Respondent in terms of section 186(1)(b) of the LRA and the referral to the ELRC is accordingly dismissed.

65. No order as to costs is made.


Panelist: Alta Reynolds (Ms)