ELRC644-20/21 EC
Text
ELRC792-20/21NC
Award Date:
10 December 2021
Panelist: Thabo Maruping
Case No.: ELRC792-20/21NC
Date of Award: 10 December 2021
In the ARBITRATION between:
PSA obo Phuti Manamela
(Union / Applicant)
and
Department of Education NC
(Respondent)
Applicant’s representative: PSA obo Manamela (Mr Louw)
Applicant’s address: P O Box 997
Kimberley
8301 Telephone: 076 289 2849
Telefax:
Email Eugene.louw@psa.co.za
Respondent’s representative: Mr. Ferdinand Bitterbosch
Respondent’s address: Department of Education: Northern Cape
KIMBERLEY
83001
Telephone: 082 041 7262
Telefax:
Email fdbitterbosch@ymail.com
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (“the LRA”) of an alleged unfair dismissal on 31 December 2020.
2. The matter was set down on November 2021 via Zoom Platform.
3. The Applicant, Mr Phuti Manamela was represented Public Service Association (PSA). The Respondent was represented by Mr. F Bitterbosch, a Labour Relations within the Directorate of the Respondent.
4. Two bundle of documents were handed in as evidence named, “Bundle A” from the Applicant and “Bundle B” from the Respondent.
5. Pre arbitration minutes concluded by both parties.
6. Receipt of Closing arguments: 28 November 2021 (written submissions)
7. The hearing was digitally recorded.
BACKGROUND
8. The Applicant was employed as Post Level1 Teacher at K.S Shuping High School. He was employed on one year fixed term contract from, 01 January 2020 until 31 December 2020.
9. The Applicant salary was R 23 336.50 and paid via persal.
10. He claims that the Respondent gave him renewal forms indicating that he will be given new contract for year 2021, only for the Respondent not to employ him.
11. He believes that reasonable expectation was created by the Respondent for him to be employed from 01 January 2021 instead of the May 2021. It is to be noted that the Applicant was offered a fixed term contract on 01 May 2021 which was entered by both parties. Procedural fairness was not in dispute.
Issue to be decided:
12. I must decide whether the Respondent created a reasonable expectation that the Applicant will be employed as of 01 January 2021.
SURVEY OF EVIDENCE
Applicants’ Case
13. Mr Phuti Manamela was main witness testified under oath. He testified that he was employed as a fixed term contract Post Level 1 Teacher as K.S Shuping Primary school.
14. The Applicant indicated that he was in a substantive post which majored in Mathematics and Science which are classified as scarce skills.
15. He stated that during November 2020 the Respondent made renewal forms available that his contract will be renewed on 01 January 2021.
16. He further testified that he made an enquiry with the Principal why he did not receive his salary to no success. He then went to the school and was told that he was not employed for year 2021.
17. The Applicant further indicated that upon his investigation he was the only one that was not re-employed back to the system. He also argued that the foreign national teachers were the ones mostly employed.
18. He referred to the National Guidelines Employment of Foreign Educators in South Africa, November 2014, which stated that during employment the South African educators can be given priority over foreign educators. The appointment of foreign educators relied upon their scare skills they bring to the education system. The scare skills subjects are Engineering Science, Physical Science and Mathematics.
19. He argued that he was supposed to have been prioritized above the foreign educators, not only for that reason but he also taught scare skills subjects (Mathematics and Science). He further argued that the Respondent failed to follow the correct procedures.
20. He averred that for the period that he was not employed at the school he was looking for other work, he was also told that someone took the post he previously occupied.
21. He testified that he was offered a fixed term contract on, 01 May 2021 to 31 December 2021, and that he was called by principal and later union office to come in and to fill in NCK1 and NCK 2 forms and wait on the Department to make the approval.
22. He further indicated that the forms NCK1 and NCK2 forms are the renewal forms he referred to that was given to him in November 2020.
23. In conclusion the Applicant indicated that he was then offered a fixed term contract from, 01 May 2021 until 31 December 2021. That he was not happy as he was suppose to have been employed from 01 January 2021, as he has lost salaries from January 2021 until 30 April 2021. He indicated that he relied on the renewal forms he was given in November 2021, which created a reasonable expectation that he will be employed as of January 2021.
24. During cross examination, the Applicant stated that he was employed as a fixed term contract employee. He further indicated that he is aware of the NCK1 form and it was completed in his hand writing. He stated that he entered into a new fixed contract with the Respondent dated 01 May 2021.
25. He further testified that he was aware the NCK2 form allows Governing body, Circuit Manager and District Manager must first approve the appointment before any appointment can be concluded. It was put to the Applicant that the forms are not renewal forms but application for educators from DOE. He agreed that indeed the forms are application forms.
26. He further indicated that he was aware he signed for a fixed term contract starting 01 May 2021 until 31 December 2021.
27. He lastly stated that the Substantive Post meant the post had potential to be made permanent. He also argued that he wanted to be paid for period 01/04/2021 to 31 April 2021.
Respondent’s Case
28. The Respondent, Mr Ferdinand Bitterbosch led main evidence and testified under oath. He indicated that the Applicant claim that he was unfairly dismissed is frivolous. He stated that no reasonable expectation was created, as initial contract ended on naturalization.
29. He averred that the Applicant upon signing NCK1 and NCK2 form, he knew it was for the period, 01 May 2021 until 31 December 2021.
30. He indicated that the Applicant was offered another fixed term contract as PL1 educator.
31. He testified that the Applicant did not work between 01 January 2021 and 31 April 2021, as there was no valid contract in place. According to him the Respondent gave them the application forms as courtesy to all fixed term contractors to apply for the New Year, but that was subjected to approval.
32. He averred that it was upon the Applicant’s engagement with the Respondent, that he was reconsidered for a post and offered a FTC.
33. His claim that foreign educators were employed related to the procedure that was followed, but indicated that no procedural fairness was placed in dispute.
34. The Respondent referred to NCK1 and NCK 2 forms and indicated that it was completed in the hand writing of the Applicant. That the Applicant indicated the time frame of his contract as stated, 01 May 2021 to 31 December 2021. That upon recommendations he will be appointed effective 01 May 2021.
35. He further testified that the NKC1 and NCK 2 met the legal requirements of drafting an employment contract, and that the Applicant knew what type of contract he was entering in.
36. He allude that the forms are just application forms for educators subject to approval by the School Governing body, Circuit Manager and District Manager before appointment can be concluded.
37. During cross examination, the witness testified that no contract was entered into between 01 January 2021 and 31 April 2021. He testified that Applicant was offered, 01 May 2021 until 31 December 2021 and completed the application forms in his handwriting. He further alluded that the Applicant was told to wait for the recommendation prior to being appointed. He argued that NCK1 and NCK2 forms had no part which indicated that upon completing the forms you are appointed. In conclusion he indicated that the substantive post was not a permanent position but had a potential to be made permanent. He further argued procedural fairness was never in dispute in reference to the National Guidelines of Employment of Foreign Educators November 2014, clause 6.
38. He concluded by saying even if he the guidelines were used clause 1 of it indicates that the Respondent can and not must use the guidelines. He argued that it was the prerogative of the Respondent to decide based on their reasons.
ANALYSIS OF EVIDENCE AND ARGUMENT
SUBSTANTIVE FAIRNESS OF THE DISMISSAL
39. Section 138(7) of the LRA requires that I submit an arbitration award with brief reasons. I have taken into account all the relevant evidence and arguments, but will only refer to those evidence and arguments necessary to substantiate my award.
40. The onus is on the Applicant to prove that they had a reasonable expectation and that they will be retained on an additional FTC. Based on the evidence let, it was common cause that the Applicant was appointed on a fixed term contract. That the fixed term contract started in 01 January 2020 which 31 December 2020. A new contract was offered on the 01 May 2021 ending 31 December 2021 and was entered into by both parties. The Applicant conceded that the NCK1 and NCK 2 forms were the forms he completed in November 2021, which he called renewal forms.
41. He confirmed that the NCK1 form read application for educators and the NCK2 form was recommendation given prior to appointment. The form had approved and not approved which indicated that appointment was relied upon Governing body, Circuit Manager and District Manager to give approval prior to appointment.
42. Ordinarily the repeat of renewal of contracts of employment would validate the Applicant’s expectation of permanent employment, which is not the case.
43. Section 23 of the Constitution of the Republic of South Africa, provides for fair labour practices.
44. The Labour Relations Act no. 66 of 1999 as amended gives effect to the Constitutional imperative of fair labour practices. The imperativeness is further supported by the Public Service Administration Act which gives effect to the terms and conditions of Employment.
45. Section 186(1)(b)(ii) of the LRA, which states:
“(b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer-
…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.” (my emphasis)
46. In Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC) the court held that in the case where the end of an agreed fixed term is defined by the occurrence of a particular event, there is no dismissal.
47. The courts adopted the approach in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733(LC) where the court held that the fixed term contract terminates by operation of law. Such termination does not constitute dismissal. The Applicant’s contract do provide for termination by an operation of law. Therefore it does not constitute a dismissal.
48. Our Courts have held that the test for a reasonable expectation is two-fold; the first being, whether the employee expected the contract to be renewed; and the second being, whether the expectation was reasonable. See University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), and MEC for the Department of Finance, Eastern Cape v De Milander and others [2011] 9 BLLR 893 (LC).
49. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354, it was held that the second part of the test for reasonable expectation, is whether the subjective expectation, objectively assessed is considered reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations.
50. The courts identified a number of factors, which may influence such finding, namely, but not limited to
i. Agreements
ii. Undertaking by the employer
iii. Custom or practice in regard to renewal
iv. Availability of posts
v. The purpose and conclusion of the fixed term contract
vi. Inconsistent conduct
vii. Failure to give reasonable notice
viii. The nature of the business
51. The Applicant has merely relied on the NCK1 and NCK 2 forms that he called renewal forms, but conceded that they were in fact application for educators and recommendation forms.
52. He secondly relied on the National Guidelines Employment of Foreign educators November 2014, which dealt with procedure for appointment of foreign educators, noting that procedure was not in dispute. The appointment was made upon engagements between Respondent and the Applicant and it was effective, 01 May 2021. The forms called renewal were never handed in as evidence, which the Applicant relied on for creating reasonable expectation.
53. Seemingly the purpose of the Respondent was to make forms available for all the fixed term contract employees to apply for positions in year 2021, which were subjected to approval by the Respondent. There is no evidence that the Respondent acted inconsistently. It was not in dispute that the Applicant was not aware of notice for termination. The nature of the business of the Respondent is to serve the people of Republic through education system and is not a profit making entity.
54. For the above brief reasons, the application must fail.
Finding
55. Based on the above, the finding is that the Applicant did not have a reasonable expectation that his fixed term contract would be renewed or extended from 01 January 2021.
Award
56. The Applicant has failed to prove that the Respondent created reasonable expectation for him to be appointed 01 January 2021. That he failed to prove that there has been a dismissal in terms of section 186(1)(b)(i) of the Labour Relations Act.
57. The matter is dismissed.
58. No order is made in respect of costs.
Thabo Maruping
ELRC Arbitrator
Case No.: ELRC792-20/21NC
Date of Award: 10 December 2021
In the ARBITRATION between:
PSA obo Phuti Manamela
(Union / Applicant)
and
Department of Education NC
(Respondent)
Applicant’s representative: PSA obo Manamela (Mr Louw)
Applicant’s address: P O Box 997
Kimberley
8301 Telephone: 076 289 2849
Telefax:
Email Eugene.louw@psa.co.za
Respondent’s representative: Mr. Ferdinand Bitterbosch
Respondent’s address: Department of Education: Northern Cape
KIMBERLEY
83001
Telephone: 082 041 7262
Telefax:
Email fdbitterbosch@ymail.com
DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (“the LRA”) of an alleged unfair dismissal on 31 December 2020.
2. The matter was set down on November 2021 via Zoom Platform.
3. The Applicant, Mr Phuti Manamela was represented Public Service Association (PSA). The Respondent was represented by Mr. F Bitterbosch, a Labour Relations within the Directorate of the Respondent.
4. Two bundle of documents were handed in as evidence named, “Bundle A” from the Applicant and “Bundle B” from the Respondent.
5. Pre arbitration minutes concluded by both parties.
6. Receipt of Closing arguments: 28 November 2021 (written submissions)
7. The hearing was digitally recorded.
BACKGROUND
8. The Applicant was employed as Post Level1 Teacher at K.S Shuping High School. He was employed on one year fixed term contract from, 01 January 2020 until 31 December 2020.
9. The Applicant salary was R 23 336.50 and paid via persal.
10. He claims that the Respondent gave him renewal forms indicating that he will be given new contract for year 2021, only for the Respondent not to employ him.
11. He believes that reasonable expectation was created by the Respondent for him to be employed from 01 January 2021 instead of the May 2021. It is to be noted that the Applicant was offered a fixed term contract on 01 May 2021 which was entered by both parties. Procedural fairness was not in dispute.
Issue to be decided:
12. I must decide whether the Respondent created a reasonable expectation that the Applicant will be employed as of 01 January 2021.
SURVEY OF EVIDENCE
Applicants’ Case
13. Mr Phuti Manamela was main witness testified under oath. He testified that he was employed as a fixed term contract Post Level 1 Teacher as K.S Shuping Primary school.
14. The Applicant indicated that he was in a substantive post which majored in Mathematics and Science which are classified as scarce skills.
15. He stated that during November 2020 the Respondent made renewal forms available that his contract will be renewed on 01 January 2021.
16. He further testified that he made an enquiry with the Principal why he did not receive his salary to no success. He then went to the school and was told that he was not employed for year 2021.
17. The Applicant further indicated that upon his investigation he was the only one that was not re-employed back to the system. He also argued that the foreign national teachers were the ones mostly employed.
18. He referred to the National Guidelines Employment of Foreign Educators in South Africa, November 2014, which stated that during employment the South African educators can be given priority over foreign educators. The appointment of foreign educators relied upon their scare skills they bring to the education system. The scare skills subjects are Engineering Science, Physical Science and Mathematics.
19. He argued that he was supposed to have been prioritized above the foreign educators, not only for that reason but he also taught scare skills subjects (Mathematics and Science). He further argued that the Respondent failed to follow the correct procedures.
20. He averred that for the period that he was not employed at the school he was looking for other work, he was also told that someone took the post he previously occupied.
21. He testified that he was offered a fixed term contract on, 01 May 2021 to 31 December 2021, and that he was called by principal and later union office to come in and to fill in NCK1 and NCK 2 forms and wait on the Department to make the approval.
22. He further indicated that the forms NCK1 and NCK2 forms are the renewal forms he referred to that was given to him in November 2020.
23. In conclusion the Applicant indicated that he was then offered a fixed term contract from, 01 May 2021 until 31 December 2021. That he was not happy as he was suppose to have been employed from 01 January 2021, as he has lost salaries from January 2021 until 30 April 2021. He indicated that he relied on the renewal forms he was given in November 2021, which created a reasonable expectation that he will be employed as of January 2021.
24. During cross examination, the Applicant stated that he was employed as a fixed term contract employee. He further indicated that he is aware of the NCK1 form and it was completed in his hand writing. He stated that he entered into a new fixed contract with the Respondent dated 01 May 2021.
25. He further testified that he was aware the NCK2 form allows Governing body, Circuit Manager and District Manager must first approve the appointment before any appointment can be concluded. It was put to the Applicant that the forms are not renewal forms but application for educators from DOE. He agreed that indeed the forms are application forms.
26. He further indicated that he was aware he signed for a fixed term contract starting 01 May 2021 until 31 December 2021.
27. He lastly stated that the Substantive Post meant the post had potential to be made permanent. He also argued that he wanted to be paid for period 01/04/2021 to 31 April 2021.
Respondent’s Case
28. The Respondent, Mr Ferdinand Bitterbosch led main evidence and testified under oath. He indicated that the Applicant claim that he was unfairly dismissed is frivolous. He stated that no reasonable expectation was created, as initial contract ended on naturalization.
29. He averred that the Applicant upon signing NCK1 and NCK2 form, he knew it was for the period, 01 May 2021 until 31 December 2021.
30. He indicated that the Applicant was offered another fixed term contract as PL1 educator.
31. He testified that the Applicant did not work between 01 January 2021 and 31 April 2021, as there was no valid contract in place. According to him the Respondent gave them the application forms as courtesy to all fixed term contractors to apply for the New Year, but that was subjected to approval.
32. He averred that it was upon the Applicant’s engagement with the Respondent, that he was reconsidered for a post and offered a FTC.
33. His claim that foreign educators were employed related to the procedure that was followed, but indicated that no procedural fairness was placed in dispute.
34. The Respondent referred to NCK1 and NCK 2 forms and indicated that it was completed in the hand writing of the Applicant. That the Applicant indicated the time frame of his contract as stated, 01 May 2021 to 31 December 2021. That upon recommendations he will be appointed effective 01 May 2021.
35. He further testified that the NKC1 and NCK 2 met the legal requirements of drafting an employment contract, and that the Applicant knew what type of contract he was entering in.
36. He allude that the forms are just application forms for educators subject to approval by the School Governing body, Circuit Manager and District Manager before appointment can be concluded.
37. During cross examination, the witness testified that no contract was entered into between 01 January 2021 and 31 April 2021. He testified that Applicant was offered, 01 May 2021 until 31 December 2021 and completed the application forms in his handwriting. He further alluded that the Applicant was told to wait for the recommendation prior to being appointed. He argued that NCK1 and NCK2 forms had no part which indicated that upon completing the forms you are appointed. In conclusion he indicated that the substantive post was not a permanent position but had a potential to be made permanent. He further argued procedural fairness was never in dispute in reference to the National Guidelines of Employment of Foreign Educators November 2014, clause 6.
38. He concluded by saying even if he the guidelines were used clause 1 of it indicates that the Respondent can and not must use the guidelines. He argued that it was the prerogative of the Respondent to decide based on their reasons.
ANALYSIS OF EVIDENCE AND ARGUMENT
SUBSTANTIVE FAIRNESS OF THE DISMISSAL
39. Section 138(7) of the LRA requires that I submit an arbitration award with brief reasons. I have taken into account all the relevant evidence and arguments, but will only refer to those evidence and arguments necessary to substantiate my award.
40. The onus is on the Applicant to prove that they had a reasonable expectation and that they will be retained on an additional FTC. Based on the evidence let, it was common cause that the Applicant was appointed on a fixed term contract. That the fixed term contract started in 01 January 2020 which 31 December 2020. A new contract was offered on the 01 May 2021 ending 31 December 2021 and was entered into by both parties. The Applicant conceded that the NCK1 and NCK 2 forms were the forms he completed in November 2021, which he called renewal forms.
41. He confirmed that the NCK1 form read application for educators and the NCK2 form was recommendation given prior to appointment. The form had approved and not approved which indicated that appointment was relied upon Governing body, Circuit Manager and District Manager to give approval prior to appointment.
42. Ordinarily the repeat of renewal of contracts of employment would validate the Applicant’s expectation of permanent employment, which is not the case.
43. Section 23 of the Constitution of the Republic of South Africa, provides for fair labour practices.
44. The Labour Relations Act no. 66 of 1999 as amended gives effect to the Constitutional imperative of fair labour practices. The imperativeness is further supported by the Public Service Administration Act which gives effect to the terms and conditions of Employment.
45. Section 186(1)(b)(ii) of the LRA, which states:
“(b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer-
…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.” (my emphasis)
46. In Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC) the court held that in the case where the end of an agreed fixed term is defined by the occurrence of a particular event, there is no dismissal.
47. The courts adopted the approach in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733(LC) where the court held that the fixed term contract terminates by operation of law. Such termination does not constitute dismissal. The Applicant’s contract do provide for termination by an operation of law. Therefore it does not constitute a dismissal.
48. Our Courts have held that the test for a reasonable expectation is two-fold; the first being, whether the employee expected the contract to be renewed; and the second being, whether the expectation was reasonable. See University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), and MEC for the Department of Finance, Eastern Cape v De Milander and others [2011] 9 BLLR 893 (LC).
49. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354, it was held that the second part of the test for reasonable expectation, is whether the subjective expectation, objectively assessed is considered reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations.
50. The courts identified a number of factors, which may influence such finding, namely, but not limited to
i. Agreements
ii. Undertaking by the employer
iii. Custom or practice in regard to renewal
iv. Availability of posts
v. The purpose and conclusion of the fixed term contract
vi. Inconsistent conduct
vii. Failure to give reasonable notice
viii. The nature of the business
51. The Applicant has merely relied on the NCK1 and NCK 2 forms that he called renewal forms, but conceded that they were in fact application for educators and recommendation forms.
52. He secondly relied on the National Guidelines Employment of Foreign educators November 2014, which dealt with procedure for appointment of foreign educators, noting that procedure was not in dispute. The appointment was made upon engagements between Respondent and the Applicant and it was effective, 01 May 2021. The forms called renewal were never handed in as evidence, which the Applicant relied on for creating reasonable expectation.
53. Seemingly the purpose of the Respondent was to make forms available for all the fixed term contract employees to apply for positions in year 2021, which were subjected to approval by the Respondent. There is no evidence that the Respondent acted inconsistently. It was not in dispute that the Applicant was not aware of notice for termination. The nature of the business of the Respondent is to serve the people of Republic through education system and is not a profit making entity.
54. For the above brief reasons, the application must fail.
Finding
55. Based on the above, the finding is that the Applicant did not have a reasonable expectation that his fixed term contract would be renewed or extended from 01 January 2021.
Award
56. The Applicant has failed to prove that the Respondent created reasonable expectation for him to be appointed 01 January 2021. That he failed to prove that there has been a dismissal in terms of section 186(1)(b)(i) of the Labour Relations Act.
57. The matter is dismissed.
58. No order is made in respect of costs.
Thabo Maruping
ELRC Arbitrator