ELRC644-20/21 EC
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ELRC623-20/21 NC
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Award Date:
17 October 2021
IN THE ELRC ARBITRATION
BETWEEN:
NEHAWU obo Tshabile and others Applicant
and
Northern Cape Urban TVET College OF EDUCATION Respondent
ARBITRATION AWARD
Case Number: ELRC623-20/21 NC
Arbitration date: 20 September 2021
Date of Award: 17 October 2021
Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. On 23 April 2021 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.
2. The applicants are Michael Tshabile, Sibongile Madondo, Heinricht Stride, Wardaya Jacobs, Pule Sekao, Lucia Oliphant, Darrington Balapile, James Maunze, Lerato Khampepe, Henry Kimemia, Caroline Tsoeu, Gizelle Marsh, they were in attendance and they were represented by Mlawuli Mguye, the union official from the National Education, Health and Allied Workers Union (NEHAWU). The respondent is The Northern Cape Urban TVET College and was represented by Mr. Malebo Rampoporo, Labour Relations Officer.
3. The parties gave the evidence under oath. The proceedings were held on Zoom to observe the Covid-19 regulations. The proceedings were digitally recorded using the recording facility available on Zoom.
PRELIMINARY ISSUE
4. Mr. Rampoporo raised the jurisdiction objection in that the dispute only concern Michael Thabile, the other applicants are not part of the dispute. On 04 April 2021 the union, NEHAWU, served the ELRC with the list of the other applicants to be joined. There was no objection that their dispute is different from Michael Thabile. Having regard to the above, I am satisfied that the applicants have substantial interest in the matter and therefore are joined to the proceedings.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the applicants were dismissed. In the event I find that the existence of a dismissal has been established, whether or not the dismissal of the applicants was effected for a fair reason and in accordance with a fair procedure. If so, make an appropriate award.
BACKGROUND DETAILS
6. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:
7. In terms of common cause facts:
7.1.1 The respondent has employed the applicants on a limited duration contract which expired on 31 December 2020. They were appointed on a fixed term contracts which were continuously renewed until they were terminated on 31 December 2020.
7.1.2 Michael Tshabile started working for the respondent on 11 February 2015 as PL1 Lecturer. He was earning R32 513,00 per month at the time of dismissal on 31 December 2020. Sibongile Madondo was appointed by the respondent on 22 February 2012 as lecturer. She was earning R31 875,11 per month at the time of dismissal on 31 December 2020. Heinricht Stride was appointed on 1 February 2015 as a Lecturer. He was earning a salary of R31 875,11, per month at the time of dismissal on 31 December 2020. Sheila Magada was appointed on19 August 2015 as a Lecturer. She was earning a salary of R31 875,11, per month at the time of dismissal on 31 December 2020. Wardaya Jacobs was appointed on 13 April 2015 as a Lecturer. She was earning a salary of R31 875,11. Pule Sekau was appointed on 30 January 2019 as PL1 Lecturer. He was earning R24 100,36 per month at the time of dismissal on 31 December 2020. Lucia Oliphant was appointed on 11 February 2016 as Pl1 Lecturer. She was earning a salary of R32 513,87 per month at the time of dismissal on 31 December 2020. Darrington Balepile was appointed on 2 October 2016 as PL1 Lecturer. He was earning a salary of R24 100,36 per month at the time of dismissal on 31 December 2020. James Maunze was appointed on 27 July 2016 as PL1 Lecturer. He was earning a salary of R24 587,73 at the time of dismissal on 31 December 2020. Lerato Khampepe was appointed on 7 February 2019 as PL1 Lecturer. She was earning a salary of R24, 100,36 per month on 31 December 2020. Henry Kimemia was appointed on 11 February 2016 as PL1 Lecturer. He was earning a salary of R32 513,87 per month at the time of dismissal on 31 December 2020. Caroline Tsoeu was appointed on 11 February 2016 as PL1 Lecturer. He was earning a salary of R32 513,87 per month at the time of dismissal on 31 December 2020. Gizelle Marsh was appointed on 11 February 2019 as PL1 Lecturer, earning a salary of R24 100,36 at the time of dismissal on 31 December 2020.
8. On 24 August 2020 the Northern Cape Urban TVET College handed notice of termination to the applicants in which the contracts of employment of the applicants were terminated effectively on 31 December 2020. Aggrieved by dismissal, the applicants referred an alleged unfair labour practice dispute relating to promotion to the ELRC.
THE EVIDENCE OF THE APPLICANTS
THE EVIDENCE OF MICHAEL TSHABILE
9. He testified that he started to work at Northern Cape Urban TVET College on 11 February 2015, however the contract was signed on 04 March 2015. He joined the college Business Studies Lecturer placed at Phatsimang Campus. He was on Ministerial programme.
10. He testified that in Human Resource Circular NO. 30 of 2020, which was addressed to all TVET Colleges Principals, Deputy-Principals Corporate Services, TVET staff, HR Management staff, copied chairpersons DDG of college councils titled “MORATORIUM AND DEFERMENT ON THE FILLING OF ANY NEW VACANT POSITIONS AND TERMINATION OF CONTRACTS ASSOCIATED WITH PRVOISIONING NORMS MODEM AND STANDARDISED COLLEGE STRUCTURE IN TECHNICAL AND VOCATIONAL EDUCATIONAL AND TRAINING COLLEGES” states the following: “It is crucial that the practice related to the termination of contracts related to Ministerial programmes and the advertising of the new positions related to PPN Model and college structure seize with immediate effect until the approved implementation plan and policy manual is signed off and published.” It means the colleges are instructed not to terminate the contracts of employees who are on colleges structures and offering Ministerial programmes up until there is implementation plan signed off and published.
11. He testified that another paragraph reads as follows: “Colleges are to note that a recent submission relating to the permanency of contract staff associated with the delivery of Ministerial programmes has been approved by the Minister and is currently being implemented via the Head Office HRMA unit. The termination of existing contracts at this stage is likely to be counterproductive to this aim. The above should also apply to staff members appointed by college councils currently associated with ministerial programmes.” It means that the Department is busy with permanence of staff those delivering ministerial programmes, if the colleges are terminating contracts it does not assist the process.
12. He testified that another paragraph reads: “In view of the above, the circular seeks to place the moratorium on the filling of any new vacant positions associated with approved PPN Model and standard structure TVET College, as well as discontinuation of termination of existing contracts of staff delivering ministerial programmes until due processes around permanency of contract employees in such programmes and the PPN implementations is completed. Any existing recruitment drive are to be deferred until formal approval of the PPN policy and implementation procedure manual is published.” It seeks to explain that there is a moratorium in filling vacancy the college are instructed to discontinue with termination until the implementation is published.” He testified that their contracts were still existing at the time of the circular. The Circular was signed on 09 October 2020.
13. He testified that that the Human Resources Circular NO. 40 of 2020 and was addressed to TVET Principals, Deputy-Principals, HR Management staff, titled “Moratorium AND THE TERMINATION OF THE CONTRACTS ASSOCIATED WITH THE PPN MODEL AND STANDADISED COLLEGE STRUCTURE IN TVET COLLEGES”, the first paragraph reads as follows: It has come to the attention of the Department that some colleges have terminated contract of staff delivering ministerial programme, as well as continue to advertise or request to advertise posts related to the implementation of the PPN Model and Standardized Structure despite Circular 30 of 2020.” It further reads: “To clarify the purpose of Moratorium in Circular 30 of 2020 is to ensure that: All staff identified as offering ministerial programmes and therefore eligible for placement, migration or redeployment into post in the standardized college structure reinforce and remain in the sector until the completion of PPN implementation process. This relate to staff employed on both colleges and Persil payrolls currently.” He testified that he is on college payroll. The termination of contract is not allowed.
14. He further testified that bulletin II reads as follows: “All posts with new naming conversions/job functions related to posts on the standardized college structure are not to be recruited for until the formal implementation process for the PPN allocations and standardized structures begins. Bulletin 3, Advertising of posts vacated as a result of natural attrition must be processed as outlined in Circular 30 of 2020 irrespective of the delegation associated with the post to verify whether or not the proposed post to be advertised is deemed to be related to the new PPN model and standardized structure or not.” He testified that he would not regard themselves vacating the post relating to natural attrition.
15. He further testified that the bulletin 4 states: “In view of the above, this circular seeks to reinforce and clarify the existing moratorium on the filling of any new vacant post associated with the approved PPN model and standardized structure in the TVET Colleges as well as the deferment of termination of existing contract of staff delivering ministerial programmes (employed both via the Persil and college payrolls), until the due processes around the PPN implementation is completed. Any existing recruitment drive related to such posts are to be deferred until formal approval of PPN policy and implementation procedure manual is published.”
16. He testified that the Northern Cape Urban TVET College gave them the termination of contracts thereafter and they went to management to complain about termination of contracts since they understood that employees who are on college payrolls are to be made permanent and migrated to Persil under the department of education. The management insisted that they have terminated their contracts procedurally and rightfully so. They approached their union, NEHAWU, to inform it that the Management has terminated their contracts and they tasked them to engage with the Northern Cape Urban TVET College regarding this matter. NEHAWU engaged the management in three occasions where Mr. Mguye was present, the respondent was adamant on terminating their contracts, NEHAWU approached the Department of Education informing the Department that the college has terminated their contracts purposefully and correctly so hence Circular 40 of 2020. NEHAWU went back to the college to retract the termination letter of their contracts. The college maintained that they are going ahead with terminations, hence Circular 30. He testified that he did receive termination letter dated 24 August 2020 which was signed and receive in September 2020.
17. He also testified that the first paragraph TVET CGC Circular NO. 1 OF 2021 titled “TERMINATION LETTERS OF THE COUNCIL PAID EMPLOYEES” reads as follows: “It has come to the attention of TVET CGC that some colleges have terminated contracts of staff delivering ministerial programmes, while they have continued to advertise or request to advertise posts related to the implantation of the PPN model and standardized structure despite the Department of Higher Education issuing Circular 30 of 2020.
18. He further testified that they were part of Ministerial programme. He testified that they were appointed on an “open-ended” contract, which meant it does not have end date. He understood it to be permanent. He testified that he did not have fixed-term contract with the college; Janties and Mongale returned to work; in Phatsimang, Tshepo Lazarus, Mrs. Lebusa; Lekoro at Moremoholo Campus, Ms. Mama, Retief, Mr. Nthaba, Mrs. Smith at Phatsimang.
19. He testified under cross examination that the respondent has terminated his fixed-term contract that started in 2015, but terminated his permanent contract. He testified that not all of them were on fixed-term contract. He was on indefinite contract with the college. He testified that they remained the appointees of Northern Cape Urban TVET College until their fixed-term contracts on 31 December 2020. He testified that the college is prohibited to terminate any contract. He further testified that their positions fall under ministerial programmes and it is still there, the post was advertised in December 2020. He further testified that the applicants do qualify as far as PPN is concerned. They were offering the ministerial programme. When it was put to him that in terms of PPN only 11 posts were allocated to the Northern Cape Urban TVET College, he did not know. He testified that the applicants were aware of all posts that need to be advertised in terms of PPN, in line with the prescribed budget. He testified that the contract does not states “indefinite”. He confirmed that on 11 February 2015 until it is terminated. He testified that after February 2015 the Northern Cape Urban TVET College presented him with another contract, but he did not sign it because there was no agreement between the union and the employer. He further testified that the employer was wrong to give them contract dated 11 February 2019. Stride did not sign, He testified that he did come across the advert for posts on the college website and DFA. He confirmed that he did receive end of contract document.
THE EVIDENCE OF SIBONGILE MADONDO
20. She testified that in 2012 she signed a contract of employment with the Northern Cape Urban TVET College, but she was not appointed on a fixed-term contract. She testified that in 2015 she was supposed to be migrated, however such migration did not happen.
21. She testified that she received bursary from the Northern Cape Urban TVET College to study and in 2019 she completed Post-Graduate Certificate in Education. She testified that they refused to sign a contract provided to them in 2019 because the contract was less favorable to them.
22. She further testified that Circular HR 30 of 2020 was issued to all TVET colleges as an instruction not to terminate contracts of employees offering Ministerial Programmes. The Circular is a proof that a reasonable expectation of full-time employment of the applicants is legitimate. She further testified that in terms of Circular 40 of 2020, the authority of HR Circular 30 was re-emphasized and reinforced. She testified that the TVETCGC is a circular sent to all TVET colleges to give the instruction to the colleges to comply with HR Circular 30 of 2020 and Circular HR 40 of 2020 as they were issued by the Department of Higher Education and Training to defer termination of contracts.
23. She testified under cross examination that she never signed contract in 2015, she signed the contract in 2012. She testified that she was told in December 2012 that the 2012 came to an end, but she was told in 2012 that she was coming the following year. She confirmed that if she was aware that her contract will terminate automatically there is no dismissal. She testified that the person who contracted her had an authority to extend her contract. She testified that Ministerial Programmes are funded by DHET and managed by DHET. She testified that it is not the DHET, but the college who did that literally. When the Northern Cape Urban TVET College made an undertaking to employ them on permanent basis, it did make it an obligation on to employ them permanently. She further testified that a circular does constitute the instruction. She testified that a circular is a directive.
THE APPLICANT’S CLOSING ARGUMENTS
24. Mr. Mlawuli Mguye submitted that Ms. Mokokong failed the test as she was not a credible witness in that she claimed no reasonable and legitimate expectation was created, but in the same breath she stated that the contracts will be renewed depending on the operational reasons or number of students. He indicated that Ms. Mokokong wanted to make the tribunal to believe that the applicants only signed a two-year contract that started in 2019 and ended in 2020, a lot of contradictions and discrepancies in her testimony in that she claimed that the applicants worked under the contract that is less favorable from the previous contract and in the same breath she stated that the contract was never signed.
25. Though Ms. Madondo started employment with NCUTVET in 2012 and served without any break in services, on the basis of enabling Department of Higher Education and Training to conclude the PPN process as per the agreement. He indicated that Ms. Mokokong was very evasive and blamed historical failures of the employer. He indicated that in the contract Ms. Mokokong’ s claim does not raise reasonable expectation, but in the second bullet it was stated: “By the end of this contract, formal education qualification is to be obtained to meet minimum requirement for PL1 Lecturer position.” He argued that the employer was about the PPN Model and if there was limitation in the post. He indicated that the witness admitted to not have taken the applicants into confident by explaining that posts are limited, but rather chose to replace them with new people. He argued that the NCUTVET College could not have dismissed the applicants for failure to sign a contract that distorted their history of employment relationship, there was not a fair reason for dismissal under the “LRA” of 1995. He relied on Matli and others v Department of Infrastructure Development (Gauteng Province) (2015) 36 ILJ 464 (LC)
26. He stated that the applicants’ posts were still available as per the advertisement of posts in the newspaper (DFA) of 11 December 2020, which were advertised as permanent. He indicated that the applicants suffered irreparable damage due to the loss of income for this period of unemployment during a period of Covid-19. He argued that the Northern Cape Urban TVET College had no reason to unfairly dismiss the applicants as the DHET instructed it not to do so. He stated that the applicants had established the existence of dismissal in their dispute and the NCUTVET failed to prove that the dismissal was fair as per section 192 of the “LRA” 66 of 1995 as amended. He stated that the applicant prays that the evidence of Ms. Mokokong be dismissed as it lacks credibility, it failed the test of admissibility and it is improbable.
THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF ELGIN MOKOKONG: THE HR MANAGER PL1 EDUCATOR
27. She testified that she has been the HR Manager for two (2) years and couple of months. She testified that the applicants were appointed on fixed-term contract basis, the duration which was for two (2) years. They were appointed from 2019 to 31 December 2020. There are two sets of employees in this instance: there are those who started in 2012, but their contracts were renewed annually and, there are those who were appointed in 2019 until 31 December 2020, there was no legitimate expectation made. It depended on the student’s registration numbers, when the number increases, there will be a need for the respondent to appoint contractors.
28. She testified that the Northern Cape Urban TVET College did not create a reasonable expectation to renew or employ the applicants on permanent basis. The Northern Cape Urban TVET College gave the applicants notices on 24 August 2020 to remind them that their contracts were coming to an end on 31 December 2020. She did not remember Northern Cape Urban TVET College making any offer, promise and/or commitment to renew fixed term contracts. She further testified that as explained previously, based on a number of students registered annually, the Northern Cape Urban TVET College had to continue to employ the applicants on fixed-term contracts, because the respondent had to pay lecturers for October, November and December 2020, even though they did not work as there were no students for those programmes and the semester was extended only due to Covid-19 reasons. Students determine the number of lecturers the school is appointing every year.
29. She testified that it is a norm that every year towards October, November they advertise position depending on the number of students. She testified that the circular is a guiding document or directive, but it does not have binding on the college. The Circular and PPN Model do not address the current dispute because there is a limit on levels in terms of number of posts each college qualifies for. The current dispute is for PL1 Lecturers and based on the analysis the Department did for the college, the college qualifies for eleven posts and between 70 to 90 contractors came to an end. The posts will be advertised for everyone to get equal opportunity to apply or contest for the post. The PPN is not one size fits all because there are terms and conditions attached, in terms of posts each qualifies for based on the size of the college. Even the draft the college submitted to the Department, the report was that the college was overstaffing, the college included posts that were not there, they must take them off.
30. She testified that the PPN has started and it is still in progress, they are guided by the Department, they are doing according to the structure of the department, they submitted the structure and if it is approved, they will implement. She further testified that the Northern Cape Urban TVET College became aware of the existence of the circulars HR Circular 30 of 2020 in January 2021. The Northern Cape Urban TVET College is not the author of the Circulars; the author is the Department of Higher Education.
31. She testified that Mr. Tshabile was employed in February 2015 in the capacity of PL1 when he signed employment contract. Mr. Tshabile did not have Teachers qualification at the time he left the College.
THE RESPONDENT’S CLOSING ARGUMENTS
32. Mr. Malebo Rampoporo argued that the applicants voluntarily entered into a fixed-term with the respondent and they agreed to perform certain specific and/or implied duties for the employer for specific period until 31 December 2020. He argued that the respondent refutes the assertion that a reasonable expectation was created as all fixed-term contracts entered into with the applicants stated the duration of such contracts. He indicated that notices were issued in advance as a reminder to employees affected. He argued that the respondent did not make any offer, promise and and/or commitment to renew the applicants’ fixed-term contracts. He indicated that the legal logic dictates that if the employees cannot prove this expectation, they cannot claim that they were dismissed under their fixed-term contract once the contract comes to an end. He further argued that the Labour Court decision (PTY) LTD v Smith NO and Others (2003) 24 ILJ 618 (LC) is a clear case in point in addressing the dispute with the applicants. He further argued that the parole evidence rule be used where a challenge is brought under the common law of contract of employment to prevent the applicant from presenting evidence which is “in conflict with the terms of the written fixed-term contract of employment.”
33. He stated that circulars authored and/or written by the Department of Higher Education and Training is a clear case in point. He indicated that the onus under section 186 (1) (b) of Labour Relations Act NO 66 of 1995 of proving a reasonable expectation rests on the applicant who alleges. He indicated that it is tried law that the primary employer, Northern Cape Urban TVET College, is not the author of all circulars presented as documentary evidence by the applicants. He indicated that it is tried that the evidence of the applicants was never corroborated by the Department of Higher Education and Training. He argued that in the absence of the correct interpretation from authors of such documents, any party whom may attempt to interpret such, that interpretation should be viewed as void ab initio. He indicated that corroborating evidence is the evidence that supports and validates the evidence provided by a party. He indicated that the circulars which are not issued by the Director- General and/or National Minister of Higher Education and Training are not valid and have no binding effect on the respondent. He made reference to Delegations in Public Service Act 1994 as amended and Public Service Regulations 2001 as amended.
34. He stated that all incumbents of posts below the Director-General must act on the basis of delegated powers in terms of section 42A (5) of the Public Service Act, Act 103 of 1994 as amended by Act 30 of 2007. He indicated that there is a distinction between terms and conditions of employment in all employment relationships that form the subject of agreed terms and what might be described as work practices, which may be varied without prior consent. He argued that the amended conditions of employment in relation to the applicants’ fixed-term contracts during the period of 2018/2019 were used as a tool to bring uniform condition of employment. He stated that the respondent has exercised such discretion reasonably as it was not done unilaterally, affected employees were consulted and refused to sign an amended contract, but tacitly accepted those conditions of employment. He argued that the applicants continued to render their services under amended condition of employment from as early as 2018/2019 up until 31 December 2020.
35. He indicated that the contractual amendments were informed by the Auditor- General’s recommendations that the contracts be amended from open-ended to fixed-term as every employee employed by College Council. Their nature of employment is fixed-term, only DHET can employ employees on permanent basis and place them on their Persil system. He indicated that the applicants do not fit in this category, in particular the Persil system. He stated that the respondent was within its right as logically informed by the operational circumstances to amend the condition of employment of those contracts labelled open-ended. He argued that the respondent engaged in a balancing act by consulting the affected applicants before the contractual amendment was made during the period of 2018/2019 as an operational response in relation to the circumstances prevalent, as fixed-term contracts were determined by the total number of students enrolled. Hence all the applicants’ fixed-term contracts came to an end on 31 December 2020 and they were all informed and notified in writing of this eventuality on 24 August 2020. He indicated that another super imposing factor not to renew the applicants’ fixed-term contracts was that the programmes were phasing out due to declining numbers of student’s enrollment and the applicants’ posts are not available.
36. He argued that the applicants failed dismally to place credible facts before the arbitrator to the reasonableness of the expectation. He stated that a mere expectation based on flimsy grounds would not suffice due to the following compelling factors: deteriorating and/or dwindling number of students enrollment as per his evidence led, Elgin Mokokong’ s led evidence that, some programmes offered by Northern Cape Urban TVET College were phased out, legality and binding of circulars issued by the secondary employer (Department of Higher Education and Training and Northern Cape Urban TVET College) did not create any legitimate expectation through circulars authors, bursaries offered to every staff member who qualified including the applicants, do not constitute a legitimate expectation as such condition was not attached to any fixed-term contract of employment.
37. He indicated that when an employee is appointed on a fixed-term contract basis, it is generally understood that such appoint expires automatically at the expiration of its term, nothing will prevent the Bargaining and/or Labour Court from looking beyond the label the parties attached to their relationship in order to determine the true nature of their relationship. He further indicated that the fact that the employer created an alleged legitimate expectation on the part of the employee does not necessarily mean that the expectation will endure in perpetuity. He also indicated that the employer may terminate the expectation by revoking or cancelling the act that gave rise to that expectation and where such revocation or cancellation is known ought to be known to the affected person, the basis for relying on the expectation no longer exist. He argued that the DHET circulars HR NO. 30 of 2020, HR NO. 40 2020 and HR NO. 2 of 2021, TVETCGC Circular 1 of 2021, PPN Models for TVET Colleges and ministerial programmes do not amend the “LRA”. He further argued that the applicants failed dismally to submit an incontestable proof as per their evidence-in-chief that the persons who signed the circulars in question were issued with delegated powers in terms of the Act. He indicated that it is tried law that the PPN has not started and therefore still unfolding, and within the context of Northern Cape Urban TVET College, positions as per the PPN Model is allocated. He prays the applicants’ case be dismissed.
ANALYSIS
38. This matter concerns an alleged unfair dismissal”. The existence of a dismissal is in dispute. It then follows that the first and foremost enquiry is to establish the existence of a dismissal. Section 192 (1) of the Labour Relations Act, 66 of 1995 as amended “the LRA” places the onus on the applicant to establish the existence of a dismissal. Whilst section 192 (2) of the “LRA” place the duty on the respondent to prove the fairness of the dismissal after the existence of a dismissal has been established. The applicants did not call any additional witnesses and had submitted bundle of documents [hereinafter referred to as bundle A]. Finally, the respondent has called only one witness to support its case and had submitted bundle of documents [hereinafter referred to as bundle R]. The applicants had stated that the number of witnesses to testify would be two since the circumstances around their dismissals were the same.
DEFINITION OF DISMISSAL
39. In terms of section 186, “MEANING OF DISMISSALS AND UNFAIR LABOUR PRACTICE” of the “LRA”, [dismissal] is defined as: (1) an employer has terminated with or without notice; (b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer to (I) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favorable 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 favorable terms, or did not offer to retain the employee. I pause here.
40. Given the above definition, it means that when determining whether or not a fixed-term contract does constitute dismissal, I have to take into account either the first part of the definition as set out in terms of section 186 (1) (b) (I), or the last part of the definition as set out in section 186 (1) (b) (ii) of the “LRA”. To put it into context, the duty of the applicants in the present matter is to demonstrate before this Council that they had a reasonable expectation that the NCUTVET was going to renew their fixed-term contracts of employment on the same or similar terms, but the NCUTVET offered to renew their fixed-term contracts on less favorable terms or did not renew their fixed-term contracts of employment at all. Alternatively, the applicants had a reasonable expectation that the NCUTVETT was going to retain them in employment on an indefinite basis on the same or similar terms in accordance with their fixed-term contracts of employment, the NCUTVET however offered to retain them on less favorable terms or did not retain them at all. It is now necessary to answer the first enquiry in this dispute I am facing which is establishing the existence of a dismissal.
WAS THERE A DISMISSAL
41. Firstly, it is common cause that on 24 August 2020 the Northern Cape Urban TVET College issued the applicants with notice of termination of their fixed-term contracts of employment. In terms of such “NOTICE OF TERMINATION”, the applicants’ fixed-term contracts of employment were terminated effectively on 31 December 2020. A letter of termination handed to Mr. Stride dated 14 August 2020 reads as follows:
Dear Mr. Stride
END OF CONTRACT CONFIRMATION
As stipulated in your contract of employment, your service. which commenced on Il February 2019 is coming to an end on 31 December 2020. Please note that this contract will not be extended beyond this date. Remuneration wilt only be paid until this date.
We would like to take this opportunity to thank you for the work you have done and wish you well in the future.
Yours sincerely.
42. The test applicable in establishing whether the end of a fixed-term contract does constitute a dismissal is considerate of, or at least the following factors ought to be present: 1 Previous renewals, the significance or otherwise of any contractual stipulation; 2. The practice of the employer with regard to the renewal of employment; are the employees’ services still required; the availability of work; 3. Does the employer have funds to sustain the renewal of the employees’ contract; 4 The purpose of or reason for concluding a fixed-term contract; 5 Undertakings by the employer; 6 failure to give reasonable notice; and the nature of the employer’s business.
43. It is further common cause that during the course of 2019, the NCUTVET gave the applicants a new fixed-term contract of employment. I wish to record in this regard that a letter of termination made reference to the 2019 fixed-term contracts, which came to an end on 31 December 2020. It is further common cause that the 2019 fixed-term contracts of employment were not signed by the applicants.
44. Surprisingly, the NCUTVET relied on the 2019 fixed-term contracts to terminate the fixed-term contracts of employment of the applicant. I am of the view that once a party to a contract does not append his or her signature on the contract, it then follows that such contract does not exist. Alternatively, such contract will not be binding on a party who did not sign it. Ms. Mokokong, the only witness of the NCUTVET, testified that the applicants were in compliance of the terms of the 2019 fixed-term contract. Besides, she did not make reference to a specific term of the contract which the applicants were complying with.
45. Nonetheless, Mr. Mguye argued that the 2019 fixed-term contracts of employment were not signed by the applicants on the basis that it carried or was offered on less favorable terms. Also, he did not make reference to a specific term of the contract which was less favorable. I perused the bundle of documents of both parties, there is no 2019 fixed-term contract submitted. Anyway, the applicable test in the dispute of this nature is a “balance of probabilities” to determine the evidence which is probable in the circumstances. Having regard to the fact that there was no signed fixed-term contract of employment between the applicants and the NCUTVET stating that their fixed-term contracts of employment would expire on 31 December 2020, I am of the view that the applicants had successfully established the existence of dismissal.
46. Another factor that I considered to demonstrate that an element of reasonable expectation existed, the Circular HR 30 of 2020, which was issued by the Department of Higher Education and Training and to which the NCUTVET is member, states that the practice related to the termination of contracts related to Ministerial programmes and the advertising of the new positions related to PPN Model and college structure seize with immediate effect until the approved implementation plan and policy manual is signed off and published. I agree with the applicants that the contents of this Circular gave them a reasonable expectation that their fixed-term contracts will not be terminated. I wish to record in this regard that the NCUTVET failed to dispute the applicants’ version that they were working on Ministerial Programmes. Having regard to the a-foregoing, I am of the view that Circular HR 30 of 2020 is sufficient proof that a reasonable expectation was created in that the applicants were going to be retained in employment on the same or similar terms.
47. In terms of Circular HR 30 of 2020, colleges including the NCUTVET, were required to take into account the Minister had approved a recent submission on the contract staff associated with the delivery of Ministerial Programmes to make them permanent and was at the time being implemented through the Head Office HRMA Unit. It further states that termination of the existing contracts is considered to be counterproductive to the DHET’s aim of making contract staff permanent. It emphasized that the Circular is applicable to all staff members associated with Ministerial Programmes appointed by the College Councils. Despite the directive in terms of the above Circular, the NCUTVET did not withdraw its letters of termination issued to the applicant. This is the total disregard of the instruction from the High Authority. I am of the view that Ms. Mokokong misdirected herself when stating that Circular HR 30 of 2020 was not applicable to the NCUTVET. Again, this is sufficient to conclude that a reasonable expectation to retain the applicants in employment was created and the fact that the applicants’ fixed-term contracts of employment had been terminated on 31 December 2020 is evident that the NCUTVET did not retain them.
48. Pursuant to the above conclusion, I now turn to deal with the question relating to the availability of work and whether or not the applicants’ services were still needed by the NCUTVET. I am of the view that the services of the applicants were still required by the NCUTVET. Mr. Tshabile’ s version was that on 11 December 2020 the NCUTVET advertised the posts in the newspaper known as[DFA]. A number of vacancies were advertised and some of those advertised posts were occupied by the applicants. This version was corroborated by Ms Madondo. It is worth stating that the NCUTVET did not dispute that version.
49. Again, the NCUTVET acted against Circular HR 30 of 2020. In terms of the aforementioned Circular, any existing recruitment drive are to be deferred until formal approval of the PPN policy and implementation procedure manual is published. Evidently, the NCUTVET continued to advertise the posts which included the posts that were occupied by the applicants despite the directive from the Department of Higher Education and Training not to do so. Given the above, I am of the view that by advertising the posts on 11 December 2020, the NCUTVET in fact proved that the services of the applicants were still necessitated and work was still available to them.
50. Having regard to the a-foregoing, I am of the view that the applicants had succeeded to demonstrate in their evidence that they had a reasonable expectation that the NCUTVET would renew their fixed-term contracts of employment on the same or similar terms, but failed to renew them. Alternatively, the applicants reasonably expected the NCUTVET to retain them in employment until the process of making them permanent in terms of Circular HR 30 of 2020 is implemented but chose not to retain them.
WAS THE DISMISSAL FAIR
51. Following my conclusion that the applicants had discharged their onus to establish the existence of a dismissal, I am of the view that the dismissal of the applicants was substantively unfair. What constitute a dismissal to be fair, I am required to take into account the provisions of section 188 of the “LRA”. in terms of the aforementioned section, a dismissal is deemed to be fair reason if the reason for dismissal relates to the employee’s conduct, capacity or based on the operational needs of the employer.
52. I am of the view that Ms. Mokokong’ s version that the continuous employment of the applicants was determined by the total number of students enrolled for that time should be rejected. As already stated, the NCUTVET was not going to suffer any prejudice in terms of funds to sustain the renewal of the employees’ contract or retention of the applicants in employment. In terms of Circular 30 of 2020, such prejudice was cured by the Department of Higher Education and Training because it was implementing its plan to employ or appoint the applicants or all contract employees on permanent basis. In addition, I have concluded that the services of the applicants are still required, hence the posts they occupied were advertised and there is work available for the applicants.
53. Having regard to the above, I am of the view that the dismissal of the applicants was substantively unfair.
54. Turning to the remedy, I firstly wish to state the applicants indicated that they are seeking retrospective reinstatement. In terms of section 193 of the “LRA”, I am allowed to order reinstatement or re-employment of the applicants because it is the primary remedy for substantive unfairness and it achieves the primary objective of the “LRA”. In addition, the respondent did not testify that the trust relationship has broken between itself and the applicants. In other words, it is practically possible that the reinstatement of the applicants on the fixed term contract would not harm continued employment relationship between the parties. As the applicants were appointed on a fixed term contract, the reinstatement will be on the same terms and conditions that applied prior to the dismissal, in other words they will continue to be employed on a fixed contract equivalent to the previous fixed term contract.
55. In the premises I find the following award competent.
AWARD
56. I find that the applicants, Michael Tshabile, Sibongile Madondo, Sheila Magada, Wardaya Jacobs, Heinrich Stride, Caroline Motlalepule Tsoeu, Darrington Genius Balepile, Gizelle Marsh, Lerato Charlotte Khampepe, Lucia Oliphant, Henry Chege Kimemia, James Mauze and Pule Paul Sekau have established the existence of dismissal.
57. Following the above conclusion, I find that the dismissal of the applicants, by the Northern Cape Urban TVET College, was substantively unfair.
58. As a result of the above, I order the respondent, Northern Cape Urban TVET College: to reinstate the applicants, Michael Tshabile, Sibongile Madondo, Sheila Magada, Wardaya Jacobs, Heinrich Stride, Caroline Motlalepule Tsoeu, Darrington Genius Balepile, Gizelle Marsh, Lerato Charlotte Khampepe, Lucia Oliphant, Henry Chege Kimemia, James Mauze and Pule Paul Sekau on the same terms and conditions that governed the relationship prior to the dismissal date 31 December 2020.
59. The said reinstatement is without back pay. The applicants to report for duty by 1 November 2021.
60. I make no order as to costs.
P. Maitsha
ELRC Panelist
BETWEEN:
NEHAWU obo Tshabile and others Applicant
and
Northern Cape Urban TVET College OF EDUCATION Respondent
ARBITRATION AWARD
Case Number: ELRC623-20/21 NC
Arbitration date: 20 September 2021
Date of Award: 17 October 2021
Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. On 23 April 2021 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.
2. The applicants are Michael Tshabile, Sibongile Madondo, Heinricht Stride, Wardaya Jacobs, Pule Sekao, Lucia Oliphant, Darrington Balapile, James Maunze, Lerato Khampepe, Henry Kimemia, Caroline Tsoeu, Gizelle Marsh, they were in attendance and they were represented by Mlawuli Mguye, the union official from the National Education, Health and Allied Workers Union (NEHAWU). The respondent is The Northern Cape Urban TVET College and was represented by Mr. Malebo Rampoporo, Labour Relations Officer.
3. The parties gave the evidence under oath. The proceedings were held on Zoom to observe the Covid-19 regulations. The proceedings were digitally recorded using the recording facility available on Zoom.
PRELIMINARY ISSUE
4. Mr. Rampoporo raised the jurisdiction objection in that the dispute only concern Michael Thabile, the other applicants are not part of the dispute. On 04 April 2021 the union, NEHAWU, served the ELRC with the list of the other applicants to be joined. There was no objection that their dispute is different from Michael Thabile. Having regard to the above, I am satisfied that the applicants have substantial interest in the matter and therefore are joined to the proceedings.
ISSUE TO BE DECIDED
5. I am required to determine whether or not the applicants were dismissed. In the event I find that the existence of a dismissal has been established, whether or not the dismissal of the applicants was effected for a fair reason and in accordance with a fair procedure. If so, make an appropriate award.
BACKGROUND DETAILS
6. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:
7. In terms of common cause facts:
7.1.1 The respondent has employed the applicants on a limited duration contract which expired on 31 December 2020. They were appointed on a fixed term contracts which were continuously renewed until they were terminated on 31 December 2020.
7.1.2 Michael Tshabile started working for the respondent on 11 February 2015 as PL1 Lecturer. He was earning R32 513,00 per month at the time of dismissal on 31 December 2020. Sibongile Madondo was appointed by the respondent on 22 February 2012 as lecturer. She was earning R31 875,11 per month at the time of dismissal on 31 December 2020. Heinricht Stride was appointed on 1 February 2015 as a Lecturer. He was earning a salary of R31 875,11, per month at the time of dismissal on 31 December 2020. Sheila Magada was appointed on19 August 2015 as a Lecturer. She was earning a salary of R31 875,11, per month at the time of dismissal on 31 December 2020. Wardaya Jacobs was appointed on 13 April 2015 as a Lecturer. She was earning a salary of R31 875,11. Pule Sekau was appointed on 30 January 2019 as PL1 Lecturer. He was earning R24 100,36 per month at the time of dismissal on 31 December 2020. Lucia Oliphant was appointed on 11 February 2016 as Pl1 Lecturer. She was earning a salary of R32 513,87 per month at the time of dismissal on 31 December 2020. Darrington Balepile was appointed on 2 October 2016 as PL1 Lecturer. He was earning a salary of R24 100,36 per month at the time of dismissal on 31 December 2020. James Maunze was appointed on 27 July 2016 as PL1 Lecturer. He was earning a salary of R24 587,73 at the time of dismissal on 31 December 2020. Lerato Khampepe was appointed on 7 February 2019 as PL1 Lecturer. She was earning a salary of R24, 100,36 per month on 31 December 2020. Henry Kimemia was appointed on 11 February 2016 as PL1 Lecturer. He was earning a salary of R32 513,87 per month at the time of dismissal on 31 December 2020. Caroline Tsoeu was appointed on 11 February 2016 as PL1 Lecturer. He was earning a salary of R32 513,87 per month at the time of dismissal on 31 December 2020. Gizelle Marsh was appointed on 11 February 2019 as PL1 Lecturer, earning a salary of R24 100,36 at the time of dismissal on 31 December 2020.
8. On 24 August 2020 the Northern Cape Urban TVET College handed notice of termination to the applicants in which the contracts of employment of the applicants were terminated effectively on 31 December 2020. Aggrieved by dismissal, the applicants referred an alleged unfair labour practice dispute relating to promotion to the ELRC.
THE EVIDENCE OF THE APPLICANTS
THE EVIDENCE OF MICHAEL TSHABILE
9. He testified that he started to work at Northern Cape Urban TVET College on 11 February 2015, however the contract was signed on 04 March 2015. He joined the college Business Studies Lecturer placed at Phatsimang Campus. He was on Ministerial programme.
10. He testified that in Human Resource Circular NO. 30 of 2020, which was addressed to all TVET Colleges Principals, Deputy-Principals Corporate Services, TVET staff, HR Management staff, copied chairpersons DDG of college councils titled “MORATORIUM AND DEFERMENT ON THE FILLING OF ANY NEW VACANT POSITIONS AND TERMINATION OF CONTRACTS ASSOCIATED WITH PRVOISIONING NORMS MODEM AND STANDARDISED COLLEGE STRUCTURE IN TECHNICAL AND VOCATIONAL EDUCATIONAL AND TRAINING COLLEGES” states the following: “It is crucial that the practice related to the termination of contracts related to Ministerial programmes and the advertising of the new positions related to PPN Model and college structure seize with immediate effect until the approved implementation plan and policy manual is signed off and published.” It means the colleges are instructed not to terminate the contracts of employees who are on colleges structures and offering Ministerial programmes up until there is implementation plan signed off and published.
11. He testified that another paragraph reads as follows: “Colleges are to note that a recent submission relating to the permanency of contract staff associated with the delivery of Ministerial programmes has been approved by the Minister and is currently being implemented via the Head Office HRMA unit. The termination of existing contracts at this stage is likely to be counterproductive to this aim. The above should also apply to staff members appointed by college councils currently associated with ministerial programmes.” It means that the Department is busy with permanence of staff those delivering ministerial programmes, if the colleges are terminating contracts it does not assist the process.
12. He testified that another paragraph reads: “In view of the above, the circular seeks to place the moratorium on the filling of any new vacant positions associated with approved PPN Model and standard structure TVET College, as well as discontinuation of termination of existing contracts of staff delivering ministerial programmes until due processes around permanency of contract employees in such programmes and the PPN implementations is completed. Any existing recruitment drive are to be deferred until formal approval of the PPN policy and implementation procedure manual is published.” It seeks to explain that there is a moratorium in filling vacancy the college are instructed to discontinue with termination until the implementation is published.” He testified that their contracts were still existing at the time of the circular. The Circular was signed on 09 October 2020.
13. He testified that that the Human Resources Circular NO. 40 of 2020 and was addressed to TVET Principals, Deputy-Principals, HR Management staff, titled “Moratorium AND THE TERMINATION OF THE CONTRACTS ASSOCIATED WITH THE PPN MODEL AND STANDADISED COLLEGE STRUCTURE IN TVET COLLEGES”, the first paragraph reads as follows: It has come to the attention of the Department that some colleges have terminated contract of staff delivering ministerial programme, as well as continue to advertise or request to advertise posts related to the implementation of the PPN Model and Standardized Structure despite Circular 30 of 2020.” It further reads: “To clarify the purpose of Moratorium in Circular 30 of 2020 is to ensure that: All staff identified as offering ministerial programmes and therefore eligible for placement, migration or redeployment into post in the standardized college structure reinforce and remain in the sector until the completion of PPN implementation process. This relate to staff employed on both colleges and Persil payrolls currently.” He testified that he is on college payroll. The termination of contract is not allowed.
14. He further testified that bulletin II reads as follows: “All posts with new naming conversions/job functions related to posts on the standardized college structure are not to be recruited for until the formal implementation process for the PPN allocations and standardized structures begins. Bulletin 3, Advertising of posts vacated as a result of natural attrition must be processed as outlined in Circular 30 of 2020 irrespective of the delegation associated with the post to verify whether or not the proposed post to be advertised is deemed to be related to the new PPN model and standardized structure or not.” He testified that he would not regard themselves vacating the post relating to natural attrition.
15. He further testified that the bulletin 4 states: “In view of the above, this circular seeks to reinforce and clarify the existing moratorium on the filling of any new vacant post associated with the approved PPN model and standardized structure in the TVET Colleges as well as the deferment of termination of existing contract of staff delivering ministerial programmes (employed both via the Persil and college payrolls), until the due processes around the PPN implementation is completed. Any existing recruitment drive related to such posts are to be deferred until formal approval of PPN policy and implementation procedure manual is published.”
16. He testified that the Northern Cape Urban TVET College gave them the termination of contracts thereafter and they went to management to complain about termination of contracts since they understood that employees who are on college payrolls are to be made permanent and migrated to Persil under the department of education. The management insisted that they have terminated their contracts procedurally and rightfully so. They approached their union, NEHAWU, to inform it that the Management has terminated their contracts and they tasked them to engage with the Northern Cape Urban TVET College regarding this matter. NEHAWU engaged the management in three occasions where Mr. Mguye was present, the respondent was adamant on terminating their contracts, NEHAWU approached the Department of Education informing the Department that the college has terminated their contracts purposefully and correctly so hence Circular 40 of 2020. NEHAWU went back to the college to retract the termination letter of their contracts. The college maintained that they are going ahead with terminations, hence Circular 30. He testified that he did receive termination letter dated 24 August 2020 which was signed and receive in September 2020.
17. He also testified that the first paragraph TVET CGC Circular NO. 1 OF 2021 titled “TERMINATION LETTERS OF THE COUNCIL PAID EMPLOYEES” reads as follows: “It has come to the attention of TVET CGC that some colleges have terminated contracts of staff delivering ministerial programmes, while they have continued to advertise or request to advertise posts related to the implantation of the PPN model and standardized structure despite the Department of Higher Education issuing Circular 30 of 2020.
18. He further testified that they were part of Ministerial programme. He testified that they were appointed on an “open-ended” contract, which meant it does not have end date. He understood it to be permanent. He testified that he did not have fixed-term contract with the college; Janties and Mongale returned to work; in Phatsimang, Tshepo Lazarus, Mrs. Lebusa; Lekoro at Moremoholo Campus, Ms. Mama, Retief, Mr. Nthaba, Mrs. Smith at Phatsimang.
19. He testified under cross examination that the respondent has terminated his fixed-term contract that started in 2015, but terminated his permanent contract. He testified that not all of them were on fixed-term contract. He was on indefinite contract with the college. He testified that they remained the appointees of Northern Cape Urban TVET College until their fixed-term contracts on 31 December 2020. He testified that the college is prohibited to terminate any contract. He further testified that their positions fall under ministerial programmes and it is still there, the post was advertised in December 2020. He further testified that the applicants do qualify as far as PPN is concerned. They were offering the ministerial programme. When it was put to him that in terms of PPN only 11 posts were allocated to the Northern Cape Urban TVET College, he did not know. He testified that the applicants were aware of all posts that need to be advertised in terms of PPN, in line with the prescribed budget. He testified that the contract does not states “indefinite”. He confirmed that on 11 February 2015 until it is terminated. He testified that after February 2015 the Northern Cape Urban TVET College presented him with another contract, but he did not sign it because there was no agreement between the union and the employer. He further testified that the employer was wrong to give them contract dated 11 February 2019. Stride did not sign, He testified that he did come across the advert for posts on the college website and DFA. He confirmed that he did receive end of contract document.
THE EVIDENCE OF SIBONGILE MADONDO
20. She testified that in 2012 she signed a contract of employment with the Northern Cape Urban TVET College, but she was not appointed on a fixed-term contract. She testified that in 2015 she was supposed to be migrated, however such migration did not happen.
21. She testified that she received bursary from the Northern Cape Urban TVET College to study and in 2019 she completed Post-Graduate Certificate in Education. She testified that they refused to sign a contract provided to them in 2019 because the contract was less favorable to them.
22. She further testified that Circular HR 30 of 2020 was issued to all TVET colleges as an instruction not to terminate contracts of employees offering Ministerial Programmes. The Circular is a proof that a reasonable expectation of full-time employment of the applicants is legitimate. She further testified that in terms of Circular 40 of 2020, the authority of HR Circular 30 was re-emphasized and reinforced. She testified that the TVETCGC is a circular sent to all TVET colleges to give the instruction to the colleges to comply with HR Circular 30 of 2020 and Circular HR 40 of 2020 as they were issued by the Department of Higher Education and Training to defer termination of contracts.
23. She testified under cross examination that she never signed contract in 2015, she signed the contract in 2012. She testified that she was told in December 2012 that the 2012 came to an end, but she was told in 2012 that she was coming the following year. She confirmed that if she was aware that her contract will terminate automatically there is no dismissal. She testified that the person who contracted her had an authority to extend her contract. She testified that Ministerial Programmes are funded by DHET and managed by DHET. She testified that it is not the DHET, but the college who did that literally. When the Northern Cape Urban TVET College made an undertaking to employ them on permanent basis, it did make it an obligation on to employ them permanently. She further testified that a circular does constitute the instruction. She testified that a circular is a directive.
THE APPLICANT’S CLOSING ARGUMENTS
24. Mr. Mlawuli Mguye submitted that Ms. Mokokong failed the test as she was not a credible witness in that she claimed no reasonable and legitimate expectation was created, but in the same breath she stated that the contracts will be renewed depending on the operational reasons or number of students. He indicated that Ms. Mokokong wanted to make the tribunal to believe that the applicants only signed a two-year contract that started in 2019 and ended in 2020, a lot of contradictions and discrepancies in her testimony in that she claimed that the applicants worked under the contract that is less favorable from the previous contract and in the same breath she stated that the contract was never signed.
25. Though Ms. Madondo started employment with NCUTVET in 2012 and served without any break in services, on the basis of enabling Department of Higher Education and Training to conclude the PPN process as per the agreement. He indicated that Ms. Mokokong was very evasive and blamed historical failures of the employer. He indicated that in the contract Ms. Mokokong’ s claim does not raise reasonable expectation, but in the second bullet it was stated: “By the end of this contract, formal education qualification is to be obtained to meet minimum requirement for PL1 Lecturer position.” He argued that the employer was about the PPN Model and if there was limitation in the post. He indicated that the witness admitted to not have taken the applicants into confident by explaining that posts are limited, but rather chose to replace them with new people. He argued that the NCUTVET College could not have dismissed the applicants for failure to sign a contract that distorted their history of employment relationship, there was not a fair reason for dismissal under the “LRA” of 1995. He relied on Matli and others v Department of Infrastructure Development (Gauteng Province) (2015) 36 ILJ 464 (LC)
26. He stated that the applicants’ posts were still available as per the advertisement of posts in the newspaper (DFA) of 11 December 2020, which were advertised as permanent. He indicated that the applicants suffered irreparable damage due to the loss of income for this period of unemployment during a period of Covid-19. He argued that the Northern Cape Urban TVET College had no reason to unfairly dismiss the applicants as the DHET instructed it not to do so. He stated that the applicants had established the existence of dismissal in their dispute and the NCUTVET failed to prove that the dismissal was fair as per section 192 of the “LRA” 66 of 1995 as amended. He stated that the applicant prays that the evidence of Ms. Mokokong be dismissed as it lacks credibility, it failed the test of admissibility and it is improbable.
THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF ELGIN MOKOKONG: THE HR MANAGER PL1 EDUCATOR
27. She testified that she has been the HR Manager for two (2) years and couple of months. She testified that the applicants were appointed on fixed-term contract basis, the duration which was for two (2) years. They were appointed from 2019 to 31 December 2020. There are two sets of employees in this instance: there are those who started in 2012, but their contracts were renewed annually and, there are those who were appointed in 2019 until 31 December 2020, there was no legitimate expectation made. It depended on the student’s registration numbers, when the number increases, there will be a need for the respondent to appoint contractors.
28. She testified that the Northern Cape Urban TVET College did not create a reasonable expectation to renew or employ the applicants on permanent basis. The Northern Cape Urban TVET College gave the applicants notices on 24 August 2020 to remind them that their contracts were coming to an end on 31 December 2020. She did not remember Northern Cape Urban TVET College making any offer, promise and/or commitment to renew fixed term contracts. She further testified that as explained previously, based on a number of students registered annually, the Northern Cape Urban TVET College had to continue to employ the applicants on fixed-term contracts, because the respondent had to pay lecturers for October, November and December 2020, even though they did not work as there were no students for those programmes and the semester was extended only due to Covid-19 reasons. Students determine the number of lecturers the school is appointing every year.
29. She testified that it is a norm that every year towards October, November they advertise position depending on the number of students. She testified that the circular is a guiding document or directive, but it does not have binding on the college. The Circular and PPN Model do not address the current dispute because there is a limit on levels in terms of number of posts each college qualifies for. The current dispute is for PL1 Lecturers and based on the analysis the Department did for the college, the college qualifies for eleven posts and between 70 to 90 contractors came to an end. The posts will be advertised for everyone to get equal opportunity to apply or contest for the post. The PPN is not one size fits all because there are terms and conditions attached, in terms of posts each qualifies for based on the size of the college. Even the draft the college submitted to the Department, the report was that the college was overstaffing, the college included posts that were not there, they must take them off.
30. She testified that the PPN has started and it is still in progress, they are guided by the Department, they are doing according to the structure of the department, they submitted the structure and if it is approved, they will implement. She further testified that the Northern Cape Urban TVET College became aware of the existence of the circulars HR Circular 30 of 2020 in January 2021. The Northern Cape Urban TVET College is not the author of the Circulars; the author is the Department of Higher Education.
31. She testified that Mr. Tshabile was employed in February 2015 in the capacity of PL1 when he signed employment contract. Mr. Tshabile did not have Teachers qualification at the time he left the College.
THE RESPONDENT’S CLOSING ARGUMENTS
32. Mr. Malebo Rampoporo argued that the applicants voluntarily entered into a fixed-term with the respondent and they agreed to perform certain specific and/or implied duties for the employer for specific period until 31 December 2020. He argued that the respondent refutes the assertion that a reasonable expectation was created as all fixed-term contracts entered into with the applicants stated the duration of such contracts. He indicated that notices were issued in advance as a reminder to employees affected. He argued that the respondent did not make any offer, promise and and/or commitment to renew the applicants’ fixed-term contracts. He indicated that the legal logic dictates that if the employees cannot prove this expectation, they cannot claim that they were dismissed under their fixed-term contract once the contract comes to an end. He further argued that the Labour Court decision (PTY) LTD v Smith NO and Others (2003) 24 ILJ 618 (LC) is a clear case in point in addressing the dispute with the applicants. He further argued that the parole evidence rule be used where a challenge is brought under the common law of contract of employment to prevent the applicant from presenting evidence which is “in conflict with the terms of the written fixed-term contract of employment.”
33. He stated that circulars authored and/or written by the Department of Higher Education and Training is a clear case in point. He indicated that the onus under section 186 (1) (b) of Labour Relations Act NO 66 of 1995 of proving a reasonable expectation rests on the applicant who alleges. He indicated that it is tried law that the primary employer, Northern Cape Urban TVET College, is not the author of all circulars presented as documentary evidence by the applicants. He indicated that it is tried that the evidence of the applicants was never corroborated by the Department of Higher Education and Training. He argued that in the absence of the correct interpretation from authors of such documents, any party whom may attempt to interpret such, that interpretation should be viewed as void ab initio. He indicated that corroborating evidence is the evidence that supports and validates the evidence provided by a party. He indicated that the circulars which are not issued by the Director- General and/or National Minister of Higher Education and Training are not valid and have no binding effect on the respondent. He made reference to Delegations in Public Service Act 1994 as amended and Public Service Regulations 2001 as amended.
34. He stated that all incumbents of posts below the Director-General must act on the basis of delegated powers in terms of section 42A (5) of the Public Service Act, Act 103 of 1994 as amended by Act 30 of 2007. He indicated that there is a distinction between terms and conditions of employment in all employment relationships that form the subject of agreed terms and what might be described as work practices, which may be varied without prior consent. He argued that the amended conditions of employment in relation to the applicants’ fixed-term contracts during the period of 2018/2019 were used as a tool to bring uniform condition of employment. He stated that the respondent has exercised such discretion reasonably as it was not done unilaterally, affected employees were consulted and refused to sign an amended contract, but tacitly accepted those conditions of employment. He argued that the applicants continued to render their services under amended condition of employment from as early as 2018/2019 up until 31 December 2020.
35. He indicated that the contractual amendments were informed by the Auditor- General’s recommendations that the contracts be amended from open-ended to fixed-term as every employee employed by College Council. Their nature of employment is fixed-term, only DHET can employ employees on permanent basis and place them on their Persil system. He indicated that the applicants do not fit in this category, in particular the Persil system. He stated that the respondent was within its right as logically informed by the operational circumstances to amend the condition of employment of those contracts labelled open-ended. He argued that the respondent engaged in a balancing act by consulting the affected applicants before the contractual amendment was made during the period of 2018/2019 as an operational response in relation to the circumstances prevalent, as fixed-term contracts were determined by the total number of students enrolled. Hence all the applicants’ fixed-term contracts came to an end on 31 December 2020 and they were all informed and notified in writing of this eventuality on 24 August 2020. He indicated that another super imposing factor not to renew the applicants’ fixed-term contracts was that the programmes were phasing out due to declining numbers of student’s enrollment and the applicants’ posts are not available.
36. He argued that the applicants failed dismally to place credible facts before the arbitrator to the reasonableness of the expectation. He stated that a mere expectation based on flimsy grounds would not suffice due to the following compelling factors: deteriorating and/or dwindling number of students enrollment as per his evidence led, Elgin Mokokong’ s led evidence that, some programmes offered by Northern Cape Urban TVET College were phased out, legality and binding of circulars issued by the secondary employer (Department of Higher Education and Training and Northern Cape Urban TVET College) did not create any legitimate expectation through circulars authors, bursaries offered to every staff member who qualified including the applicants, do not constitute a legitimate expectation as such condition was not attached to any fixed-term contract of employment.
37. He indicated that when an employee is appointed on a fixed-term contract basis, it is generally understood that such appoint expires automatically at the expiration of its term, nothing will prevent the Bargaining and/or Labour Court from looking beyond the label the parties attached to their relationship in order to determine the true nature of their relationship. He further indicated that the fact that the employer created an alleged legitimate expectation on the part of the employee does not necessarily mean that the expectation will endure in perpetuity. He also indicated that the employer may terminate the expectation by revoking or cancelling the act that gave rise to that expectation and where such revocation or cancellation is known ought to be known to the affected person, the basis for relying on the expectation no longer exist. He argued that the DHET circulars HR NO. 30 of 2020, HR NO. 40 2020 and HR NO. 2 of 2021, TVETCGC Circular 1 of 2021, PPN Models for TVET Colleges and ministerial programmes do not amend the “LRA”. He further argued that the applicants failed dismally to submit an incontestable proof as per their evidence-in-chief that the persons who signed the circulars in question were issued with delegated powers in terms of the Act. He indicated that it is tried law that the PPN has not started and therefore still unfolding, and within the context of Northern Cape Urban TVET College, positions as per the PPN Model is allocated. He prays the applicants’ case be dismissed.
ANALYSIS
38. This matter concerns an alleged unfair dismissal”. The existence of a dismissal is in dispute. It then follows that the first and foremost enquiry is to establish the existence of a dismissal. Section 192 (1) of the Labour Relations Act, 66 of 1995 as amended “the LRA” places the onus on the applicant to establish the existence of a dismissal. Whilst section 192 (2) of the “LRA” place the duty on the respondent to prove the fairness of the dismissal after the existence of a dismissal has been established. The applicants did not call any additional witnesses and had submitted bundle of documents [hereinafter referred to as bundle A]. Finally, the respondent has called only one witness to support its case and had submitted bundle of documents [hereinafter referred to as bundle R]. The applicants had stated that the number of witnesses to testify would be two since the circumstances around their dismissals were the same.
DEFINITION OF DISMISSAL
39. In terms of section 186, “MEANING OF DISMISSALS AND UNFAIR LABOUR PRACTICE” of the “LRA”, [dismissal] is defined as: (1) an employer has terminated with or without notice; (b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer to (I) to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favorable 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 favorable terms, or did not offer to retain the employee. I pause here.
40. Given the above definition, it means that when determining whether or not a fixed-term contract does constitute dismissal, I have to take into account either the first part of the definition as set out in terms of section 186 (1) (b) (I), or the last part of the definition as set out in section 186 (1) (b) (ii) of the “LRA”. To put it into context, the duty of the applicants in the present matter is to demonstrate before this Council that they had a reasonable expectation that the NCUTVET was going to renew their fixed-term contracts of employment on the same or similar terms, but the NCUTVET offered to renew their fixed-term contracts on less favorable terms or did not renew their fixed-term contracts of employment at all. Alternatively, the applicants had a reasonable expectation that the NCUTVETT was going to retain them in employment on an indefinite basis on the same or similar terms in accordance with their fixed-term contracts of employment, the NCUTVET however offered to retain them on less favorable terms or did not retain them at all. It is now necessary to answer the first enquiry in this dispute I am facing which is establishing the existence of a dismissal.
WAS THERE A DISMISSAL
41. Firstly, it is common cause that on 24 August 2020 the Northern Cape Urban TVET College issued the applicants with notice of termination of their fixed-term contracts of employment. In terms of such “NOTICE OF TERMINATION”, the applicants’ fixed-term contracts of employment were terminated effectively on 31 December 2020. A letter of termination handed to Mr. Stride dated 14 August 2020 reads as follows:
Dear Mr. Stride
END OF CONTRACT CONFIRMATION
As stipulated in your contract of employment, your service. which commenced on Il February 2019 is coming to an end on 31 December 2020. Please note that this contract will not be extended beyond this date. Remuneration wilt only be paid until this date.
We would like to take this opportunity to thank you for the work you have done and wish you well in the future.
Yours sincerely.
42. The test applicable in establishing whether the end of a fixed-term contract does constitute a dismissal is considerate of, or at least the following factors ought to be present: 1 Previous renewals, the significance or otherwise of any contractual stipulation; 2. The practice of the employer with regard to the renewal of employment; are the employees’ services still required; the availability of work; 3. Does the employer have funds to sustain the renewal of the employees’ contract; 4 The purpose of or reason for concluding a fixed-term contract; 5 Undertakings by the employer; 6 failure to give reasonable notice; and the nature of the employer’s business.
43. It is further common cause that during the course of 2019, the NCUTVET gave the applicants a new fixed-term contract of employment. I wish to record in this regard that a letter of termination made reference to the 2019 fixed-term contracts, which came to an end on 31 December 2020. It is further common cause that the 2019 fixed-term contracts of employment were not signed by the applicants.
44. Surprisingly, the NCUTVET relied on the 2019 fixed-term contracts to terminate the fixed-term contracts of employment of the applicant. I am of the view that once a party to a contract does not append his or her signature on the contract, it then follows that such contract does not exist. Alternatively, such contract will not be binding on a party who did not sign it. Ms. Mokokong, the only witness of the NCUTVET, testified that the applicants were in compliance of the terms of the 2019 fixed-term contract. Besides, she did not make reference to a specific term of the contract which the applicants were complying with.
45. Nonetheless, Mr. Mguye argued that the 2019 fixed-term contracts of employment were not signed by the applicants on the basis that it carried or was offered on less favorable terms. Also, he did not make reference to a specific term of the contract which was less favorable. I perused the bundle of documents of both parties, there is no 2019 fixed-term contract submitted. Anyway, the applicable test in the dispute of this nature is a “balance of probabilities” to determine the evidence which is probable in the circumstances. Having regard to the fact that there was no signed fixed-term contract of employment between the applicants and the NCUTVET stating that their fixed-term contracts of employment would expire on 31 December 2020, I am of the view that the applicants had successfully established the existence of dismissal.
46. Another factor that I considered to demonstrate that an element of reasonable expectation existed, the Circular HR 30 of 2020, which was issued by the Department of Higher Education and Training and to which the NCUTVET is member, states that the practice related to the termination of contracts related to Ministerial programmes and the advertising of the new positions related to PPN Model and college structure seize with immediate effect until the approved implementation plan and policy manual is signed off and published. I agree with the applicants that the contents of this Circular gave them a reasonable expectation that their fixed-term contracts will not be terminated. I wish to record in this regard that the NCUTVET failed to dispute the applicants’ version that they were working on Ministerial Programmes. Having regard to the a-foregoing, I am of the view that Circular HR 30 of 2020 is sufficient proof that a reasonable expectation was created in that the applicants were going to be retained in employment on the same or similar terms.
47. In terms of Circular HR 30 of 2020, colleges including the NCUTVET, were required to take into account the Minister had approved a recent submission on the contract staff associated with the delivery of Ministerial Programmes to make them permanent and was at the time being implemented through the Head Office HRMA Unit. It further states that termination of the existing contracts is considered to be counterproductive to the DHET’s aim of making contract staff permanent. It emphasized that the Circular is applicable to all staff members associated with Ministerial Programmes appointed by the College Councils. Despite the directive in terms of the above Circular, the NCUTVET did not withdraw its letters of termination issued to the applicant. This is the total disregard of the instruction from the High Authority. I am of the view that Ms. Mokokong misdirected herself when stating that Circular HR 30 of 2020 was not applicable to the NCUTVET. Again, this is sufficient to conclude that a reasonable expectation to retain the applicants in employment was created and the fact that the applicants’ fixed-term contracts of employment had been terminated on 31 December 2020 is evident that the NCUTVET did not retain them.
48. Pursuant to the above conclusion, I now turn to deal with the question relating to the availability of work and whether or not the applicants’ services were still needed by the NCUTVET. I am of the view that the services of the applicants were still required by the NCUTVET. Mr. Tshabile’ s version was that on 11 December 2020 the NCUTVET advertised the posts in the newspaper known as[DFA]. A number of vacancies were advertised and some of those advertised posts were occupied by the applicants. This version was corroborated by Ms Madondo. It is worth stating that the NCUTVET did not dispute that version.
49. Again, the NCUTVET acted against Circular HR 30 of 2020. In terms of the aforementioned Circular, any existing recruitment drive are to be deferred until formal approval of the PPN policy and implementation procedure manual is published. Evidently, the NCUTVET continued to advertise the posts which included the posts that were occupied by the applicants despite the directive from the Department of Higher Education and Training not to do so. Given the above, I am of the view that by advertising the posts on 11 December 2020, the NCUTVET in fact proved that the services of the applicants were still necessitated and work was still available to them.
50. Having regard to the a-foregoing, I am of the view that the applicants had succeeded to demonstrate in their evidence that they had a reasonable expectation that the NCUTVET would renew their fixed-term contracts of employment on the same or similar terms, but failed to renew them. Alternatively, the applicants reasonably expected the NCUTVET to retain them in employment until the process of making them permanent in terms of Circular HR 30 of 2020 is implemented but chose not to retain them.
WAS THE DISMISSAL FAIR
51. Following my conclusion that the applicants had discharged their onus to establish the existence of a dismissal, I am of the view that the dismissal of the applicants was substantively unfair. What constitute a dismissal to be fair, I am required to take into account the provisions of section 188 of the “LRA”. in terms of the aforementioned section, a dismissal is deemed to be fair reason if the reason for dismissal relates to the employee’s conduct, capacity or based on the operational needs of the employer.
52. I am of the view that Ms. Mokokong’ s version that the continuous employment of the applicants was determined by the total number of students enrolled for that time should be rejected. As already stated, the NCUTVET was not going to suffer any prejudice in terms of funds to sustain the renewal of the employees’ contract or retention of the applicants in employment. In terms of Circular 30 of 2020, such prejudice was cured by the Department of Higher Education and Training because it was implementing its plan to employ or appoint the applicants or all contract employees on permanent basis. In addition, I have concluded that the services of the applicants are still required, hence the posts they occupied were advertised and there is work available for the applicants.
53. Having regard to the above, I am of the view that the dismissal of the applicants was substantively unfair.
54. Turning to the remedy, I firstly wish to state the applicants indicated that they are seeking retrospective reinstatement. In terms of section 193 of the “LRA”, I am allowed to order reinstatement or re-employment of the applicants because it is the primary remedy for substantive unfairness and it achieves the primary objective of the “LRA”. In addition, the respondent did not testify that the trust relationship has broken between itself and the applicants. In other words, it is practically possible that the reinstatement of the applicants on the fixed term contract would not harm continued employment relationship between the parties. As the applicants were appointed on a fixed term contract, the reinstatement will be on the same terms and conditions that applied prior to the dismissal, in other words they will continue to be employed on a fixed contract equivalent to the previous fixed term contract.
55. In the premises I find the following award competent.
AWARD
56. I find that the applicants, Michael Tshabile, Sibongile Madondo, Sheila Magada, Wardaya Jacobs, Heinrich Stride, Caroline Motlalepule Tsoeu, Darrington Genius Balepile, Gizelle Marsh, Lerato Charlotte Khampepe, Lucia Oliphant, Henry Chege Kimemia, James Mauze and Pule Paul Sekau have established the existence of dismissal.
57. Following the above conclusion, I find that the dismissal of the applicants, by the Northern Cape Urban TVET College, was substantively unfair.
58. As a result of the above, I order the respondent, Northern Cape Urban TVET College: to reinstate the applicants, Michael Tshabile, Sibongile Madondo, Sheila Magada, Wardaya Jacobs, Heinrich Stride, Caroline Motlalepule Tsoeu, Darrington Genius Balepile, Gizelle Marsh, Lerato Charlotte Khampepe, Lucia Oliphant, Henry Chege Kimemia, James Mauze and Pule Paul Sekau on the same terms and conditions that governed the relationship prior to the dismissal date 31 December 2020.
59. The said reinstatement is without back pay. The applicants to report for duty by 1 November 2021.
60. I make no order as to costs.
P. Maitsha
ELRC Panelist