ELRC1050-21/22LP
Text
ELRC1050-21/22LP
Award Date:
12 August 2022
Panelist: Sally-Jean Pabst
Case No.: ELRC1050-21/22LP
Date of Award: 12 August 2022
In the ARBITRATION between:
Mr Taurai Lawrence MUSHAYABASA
(Union / Applicant)
and
Limpopo Province Department of Education
(Respondent)
Applicant: Email: lawmush@gmail.com
Persal number: 83055665
Respondent’s representative: Mr Eric Nkhumeleni Nyathela
Email: nyathela.ericn@limpopo.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred to the Education Labour Relations Council (ELRC) in terms of section 186(2) of the Labour Relations Act 66 of 1995 (LRA) – that of an alleged unfair labour practice relating to promotion – emanating from the Respondent failing or refusing to permanently appoint the Applicant as provided for in ELRC Collective Agreement 4 of 2018.
2. Further to this, it is the Applicant’s contention that appropriate interpretation and application of abovementioned Collective Agreement provides him with the vehicle to be promoted to the status of permanently appointed Educator in the post he has been filling in the capacity of fixed term contracts that has been annually renewed without interruption of service from 22 January 2009 to 31 December 2021 – when his second application for permanent status in his substantive post was met with rejection, as well as non-renewal of this fixed term contract.
3. This arbitration was conducted virtually via Zoom and video-recorded with the consent of the parties, on 30 June 2022 and concluded on 15 July 2022.
4. The Applicant was present and represented himself. The Respondent, the Department of Education (DOE) of the Limpopo Province was represented by Mr Eric Nkhumeleni Nyathela.
5. The pre-arbitration conference had been conducted, and I received the minute via email before the arbitration process commenced.
6. The parties each submitted a bundle of evidence, of which Bundle A was that of the Applicant, consisting of 57 pages, and Bundle B was that of the Respondent consisting of 101 pages.
7. In terms of the LRA, the Applicant bears the onus to show that the Respondent committed an act or omission that may be construed as an unfair labour practice. Once said act or omission has been confirmed, the onus shifts to the Respondent to prove that the act or omission was not unfair.
ISSUE TO BE DECIDED
8. I have to determine on a balance of probabilities whether the Applicant was subjected to any unfair act or omission by the Respondent, relating to promotion to the status of permanent appointment.
9. Only if an unfair labour practice is confirmed, I must determine an appropriate remedy in terms of section 193, read with section 194, of the LRA.
BACKGROUND
10. The Applicant had been employed temporarily by the Limpopo Province DOE (LP DOE) in substantive post number 03 as a Mathematics and Physical Science Educator at Ngwanamashile High School, Sekhukhune South District, until 31 December 2021.
11. At the time of termination the Applicant was earning a monthly remuneration of R 25,143.25 per month.
12. It is the Applicant’s contention that appropriate interpretation and application of abovementioned Collective Agreement would provide him with the vehicle to be promoted to the status of permanently appointed Educator in the post he has been filling on fixed term contracts annually renewed continuously from 22 January 2009 to 31 December 2021
13. The Respondent disputes the Applicant’s contention that its failure or refusal to either renew the Applicant’s contract, alternatively to appoint the Applicant permanently in terms of his applications for permanent employment status amounts to an unfair labour practice in terms of section 186(2)(a) of the LRA.
SURVEY OF EVIDENCE AND ARGUMENT
14. As provided for in terms of Section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities.
15. In terms of s138(7)(a) of the LRA, I only include evidence I found particularly relevant in making a decision. Accordingly, below is a brief summary of the evidence I found pertinent in determining the outcome of the dispute.
APPLICANT’S EVIDENCE
16. The Applicant testified that he was working in a permanent job in his country of origin, Zimbabwe, prior to 2009. He was then given an opportunity to go and work in South Africa in terms of his qualification – that of educator in the subjects Mathematics and Physical Science – this in terms of Government Gazette No. 30975 dated 14 April 2008 having declared educators qualified to teach the subjects Mathematics and Physical Science as ‘scarce skills’ in the public schools of SA.
17. Although the Immigration Act prescribes that a work permit to SA may only be allocated to foreigners who already have an offer of permanent employment in SA, this prescription was legitimately circumvented for these educators – the Applicant was one of these – who possess a scarce skill that is rare and urgently needed in SA.
18. The Applicant obtained a SAQA Certification of qualifications in May 2007, his South African Council for Educators (SACE) registration as from July 2008, and in February 2009 an Evaluation Of Qualifications to “REQV 14, professionally qualified” from the Evaluation Committee of the SA Department of Education – all of which authenticated him and ratified his appointment as Educator in South Africa.
19. The Applicant was subsequently appointed on a fixed term contract by the Limpopo Province Department of Education’s Ngwanamashile High School, Sekhukhune South District, where he worked in substantive post number 3 as a Mathematics Educator continuously on annually renewed fixed term contracts until his last contract terminated by virtue its expiry date, on 31 December 2021.
20. In 2013 the Department of Home Affairs (DHA) granted the Applicant his Permanent Residency Permit and in 2014 he granted a South African Identity Document (SA ID) on the back of his Permanent Residence Permit (permit).
21. Then, in 2015 the Applicant applied for conversion to permanent appointment status in the position he had been filling in temporary contracts for 6 years at that time, but received no response to his application. Although he qualified to be converted in terms of the criteria, his application documents were all sent back to the school without action taken by the DOE.
22. Circular 125 of 2018 prioritised the appointment of educators who meet the minimum appointment requirements if they are “Professionally qualified educators employed in a temporary capacity in substantive posts for 3 months or more continuous service”, and the Applicant also had his Permanent Residency Permit verified, and a SA ID too.
23. The Applicant testified he was concerned and disappointed that his conversion was not effected – just sent back to the school without even an explanation by the DOE – whereas other foreign educators in exactly the same situation as him, but from other schools, had their employment status’ converted.
24. Then in November 2019 a Circular referenced S3/1/2/3/1 provided instruction from the LP DOE to all its Districts, Circuits and School Governing Bodies that the Limpopo DOE “intends to appoint permanently the 450 foreign educators appointed” in terms of Government Gazette No. 30975 (14 April 2008), providing these educators are professionally qualified, are in possession of valid authentic Permanent Residential Permits, and was at the time employed in substantive posts at least from 1 January 2020.
25. Above Circular notably further instructed that, in terms of said instruction to permanently appoint these Educators, accordingly no further blanket extensions of temporary contracts for these educators will be permitted as from 1 January 2020. Further instructions was clear in the Circular on the requirements and process for application to permanent appointment of these educators.
26. The Applicant explained that in the space of time after he received his ID, his documentation, fingerprints and verification was done by the Department of Home Affairs twice – once of which was on request of the Respondent.
27. To this, the DOE obtained verification from the SA Department of Home Affairs for the SA ID’s and permanent residency permits of 53 of the above mentioned 450 foreign Educators, of which the Applicant’s name and details was listed as number 41 on this list in evidence – his ID and Permanent Residential Permit residency permit verified as ‘AUTHENTIC’.
28. In November 2021, Circular No. 163 of 2021, referenced S3/1/2/3/2 and evidenced in the Applicant’s bundle was distributed to all LP DOE Districts, Circuits, School Principals and Educators. It informed that the positions filled by foreign Educators still working on contracts has been advertised as promotion posts on 5 September 2021, and directed that these posts must be permanently filled effective 1 January 2022 - thus an impending deadline for the Applicant to be permanently appointed.
29. The Applicant decided to apply for the position when it was advertised. He did so, and received profound support of the school governing body and principal, evident from the recommendation letters in evidence submitted with his application to the Respondent after he was interviewed by the SGB. He was undoubtedly the best candidate, and towered head and shoulders above the other candidates in terms of score and historical performance. Nevertheless, exactly as was the case with his conversion application 7 years before, the Applicant’s application for the position was sent back without any feedback. Upon enquiry he was informed by the Circuit Manager that him being a foreigner was the reason why he was not appointed permanently. His contract was not renewed.
30. Mr Nyathela questioned the Applicant about the process late in 2021 – early 2022. To this the Applicant explained that the Circuit Office usually takes their time (takes long) in issuing a new contract appointment letter extending or renewing a fixed term – that it usually comes only in February, and is backdated to the beginning of January.
31. He explained that, in the first few years the school would customarily tell him to stay home and wait for the approval, but later they proceeded to say he can report for work –the approval coming. It would usually arrive about 2 weeks after the school term started.
32. On his last contract, the Applicant requested renewal of his fixed term shortly before he was told his vacant permanent post number 03 will be advertised, to which he applied, too. Mr Nyathela took issue with the Applicant following both avenues – questioning his expectation of being retained on a fixed term contract seeing as he applied for the permanent basis. The Applicant explained that he applied at various schools – following every avenue – to ensure the best possible chance of remaining in the employ of the Department of Education in South Africa.
33. Mr Nyathela proceeded to point out to the Applicant that his expectation to stay on in the Respondent’s employ was unfounded and unsubstantiated by anything the Respondent did. The Applicant retorted that his reasonable expectation was in the first place that he would remain in his position at the school he served for 14 years, based on having remained there so long and done a very good job at that, and secondly a further reasonable expectation to be employed permanently was created to be appointed permanently in post number 03 when it was advertised in terms of having been told he is the preferred candidate and that the school governing body and school principal is recommending him for the post to the Circuit Manager, for the Respondent to appoint him. That was when he reasonably could expect to be permanently appointed – based on the documentation in the bundle showing he was the best candidate and also the only one the SGB preferred.
34. Mr Nyathela put to the Applicant that the recommendation from the school governing body does not comply with the provisions of the Limpopo Chamber ELRC Collective Agreement 2 of 2020, as it should have been made on the prescribed form, in terms of said provisions. To this, the Applicant retorted that page A25 is the cover letter of the recommendation – that the recommendation Mr Nyathela is referring to is evidenced on page 35 – containing the names and scores and ratings of the 3 candidates that were shortlisted and interviewed – one of which was the Applicant. Mr Nyathela continued insisting it is not the correct form, but in any event he does not have the correct form available.
35. Mr Eric Nyathela put to the Applicant that he had not had the authority to admit pages A15 to A18 into evidence, as he was not the author nor the recipient of the document. I explained to the parties that the evidence may constitute hearsay evidence – that it is nevertheless admissible, but that the probative value of the document will be evaluated with due consideration to the fact that its author is not here to speak about the document.
36. In response the Applicant pointed out that the document is proof nevertheless that the Respondent pursued, and was provided with verification of the credentials and validity of the ID’s and permits of the foreign persons listed, and that it merely serves to substantiate what should already be probable, clear and obvious from the fact that the Applicant was retained in the employ of the Respondent for 7 years and 7 contract-renewals and two verifications of credentials and documents thereafter.
37. Mr Nyathela put to the Applicant that the Respondent’s witness will dispute that the Applicant’s was a “scarce skill” and given special permission to come and work in South Africa at any point. The Applicant disagreed, referring again to the Circulars and the Government Gazette quoted earlier. Mr Nyathela further put to the Applicant that, because it is the Respondent’s view that there was no scarce skill-concern, there was accordingly no lawful way the Applicant could have legitimately obtained a permanent residency permit in the absence of a permanent job offer, in terms of of section 26(a) of the Immigration Act 13 of 2002 (evidenced on page B68). The Applicant disagreed vehemently with this, restating that in terms of his (Gazetted) scarce qualification, special allowance was made.
38. The Applicant testified that the position the Respondent failed to appoint him in was only after about 3 months – in April 2022 – filled by a horizontal transfer of another educator who lives in the vicinity but had been working for the Limpopo DOE at another school far away, who then did not have to commute to work anymore. However, in the interim – the first 3 months of 2022 – the Applicant testified, a recently matriculated student that he himself taught acted in the post in the interim, which was not ideal. Mr Nyathela had no rejoinder to this, and concluded his cross-questioning.
39. The Applicant testified that he is not wishing for retrospective appointment as relief in this dispute arbitration. His reasons are firstly as noted in the pre-arbitration minute in evidence, the post is no longer available.
40. Secondly, he feels aggrieved that he has been rejected for conversion promotion to status of permanent employment in spite of serving faithfully and outstandingly for many years as a Mathematics teacher and having exemplary recommendations from the school governing body and principal of the school he served.
41. To this, his recommendations are evidenced on pages A36 (for his 2015 application) and signed off by the SGB Chair and Circuit Manager as evidenced on page A40, as well as on pages A25 and A30 (for Applicant’s 2022 application to which he was verbally informed that he was unsuccessful due to him being a foreigner – this in spite of him being the only 1 of the 3 interviewed applicants to the post who scored “Good Results”.
42. The Applicant, as third motivation to not wish for appointment in relief, evidenced on page A22 a ‘Criteria’ and ‘Description’ excerpt, which he attested is admittedly unsubstantiated and the source unclear, with as ‘Criteria’ to “Appointment of non-persalised qualified teachers” provides under ‘Description’ “It is allowed as long as they are NOT foreigners” in bold and red font – which effectively disheartens him from pursuing further employment with the Department of Education.
43. Collective Agreement 4 of 2018 sets out, at paragraph 3, that when an arbitrator must determine whether an objectively reasonable expectation of either renewal of the FTC or being permanently retained in employment on an indefinite basis as described in the LRA’s section 186(1)(b), certain relevant factors must be taken into account by the arbitrator determining the dispute. They are inter alia
3.4 the law, practice or custom relating to the renewal of temporary contracts or the conversion of temporary contracts to permanent ones;
3.5 the extent to which there have been repeated renewals;
44. The Applicant submitted that others like him have been customarily and in terms of the various circulars converted to permanent employment status, but contrary to his objectively reasonable expectations his was not. Also, the extent to which his FTC’s were renewed – annually for 12 years – certainly created the expectation that he will be retained indefinitely as a permanent employee.
RESPONDENT’S EVIDENCE
45. Mr Nyathela stated that the Respondent made the decision not to renew the Applicant’s contract of post number 3 – in the interest of and in the spirit of fair labour practices and also Collective Agreement 4 of 2018. People should not be kept in fixed term contracts for such very long periods – rather the positions must be advertised and filled permanently, which is what the HOD decided in terms of her discretion – post number 3 was advertised on 28 January 2022. It was an open advert, and everyone was invited to apply – also the Applicant – which he did, but he was not appointed because the HOD made that decision in terms of her discretion.
46. The HOD enjoys that discretion in terms of Collective Agreement 4 or 2018 in evidence, stating the HOD may decide that conversion to permanent can be refused if the HOD decides to follow the normal recruitment and selection processes, and also she may decide at any point to follow a different method of recruitment and selection, which is why a horizontal transfer was applicable.
47. Mr Thomani Victor Lukheli was placed under oath, whereafter he testified that he is the Respondent’s Assistant Director of Human Resources. Mr Nyathela took Mr Lukheli through the evidence the Applicant’s case incorporates, as well as reading into evidence the various passages dealt with in the Applicant’s evidence.
48. The witness testified that the HOD has the final discretion on whether to appoint the Applicant permanently, and made the correct decision in terms of her powers to fill the post with whomever she finds suitable. The SGB’s recommendation was not found to be ideal under the circumstances, hence the Applicant was not appointed. The witness testified he relies on Collective Agreement 2 of 2020 and also the Employment of Educators Act for this conviction.
49. Mr Nyathela referred the witness to Collective Agreement 4 of 2018 – passages were read into evidence – both parts speaking to the fact that the HOD has the final discretion whether or not to permanently appoint any temporary educator.
50. Circular S3/1/2/3/1 in the Applicant’s bundle was read into evidence – specifically at paragraph 5 – to which the witness was asked whether this paragraph in conjunction with the Applicant’s permanent residency permit on page A5 affords the Applicant the expectation to be appointed permanently.
51. The witness replied “The holder of this permit is not looking for a job. In terms of the Immigration Act, the permit holder should have already had a job, to which he should have submitted this permit after its issue to the employer who offered him the permanent position, and claim that permanent position in terms of this permit – but that employer was not the Department of Education. Only people who already have permanent employment may be issued this permit. If the Applicant was given this permanent without a permanent job, that was in contravention to the Immigration Act.”
52. Mr Nyathela told the witness that the Applicant testified he was offered his educator position in terms of him having a scarce skill – teaching Maths and Science. Mr Lukheli testified that, to his knowledge, the Department of Education around 2013 never intended to offer a permanent position to foreigners, and according to his records the DOE never issued a permanent job offer to this Applicant. Mr Lukheli did not agree nor rebut the ‘scarce skills’ portion of Mr Nyathela’s statement.
53. Mr Lukheli was directed to the document in evidence – “Feedback on Verification of Educators” – where the Applicant’s is listed as ‘AUTHENTIC’. The witness replied that although he is not doubting the validity of the permit on page 5, the permit on page 5 is in his view definitely not the same document that was verified by Home Affairs as seen on page 17, in terms of the discrepancy between the numbers.
54. In cross-examination the Applicant put to Mr Lukheli that many foreign educators was appointed in permanent positions in 2015 in other provinces, at the same time he also applied for this in terms of the various Circulars in evidence directing that foreign educators must be appointed permanently. That verification was done to substantiate the criteria for their transition to permanent status. The Applicant asked the witness how it is, why he says, “the Department of Education around 2013 never intended to offer a permanent position to foreigners” if many of them were given permanent jobs?
55. Mr Lukheli denied that the Department directed foreign educators to be appointed permanent. The Department has no record of such permanent appointments in 2015. The Department did not issue such a directive in 2015, and he does not know about any foreigners appointed permanently, therefore he cannot speak about such people or appointments that he does not know about.
56. Mr Lukheli testified that his system shows the Applicant was appointed based on a temporary permit which expired 31-12-2021. The Applicant corrected the witness, saying his first ‘quarter’ permit – not included in evidence as it expired in 2012 – was his first permit, on his very first fixed term contract. Thereafter he was issued the Permanent Residency Permit. The Applicant asked whether the witness is implying that the DOE renews contracts in terms of expired or invalid documents? Mr Lukheli replied that the DOE does not, and he (Mr Lukheli) cannot comment, because all he knows is what is in his system.
57. The Applicant pointed out that the Respondent renewed the Applicant’s contract annually from 2012 when that ‘quarter’ permit expired, and if that was not renewed based on expired documents, then they must logically have used his permanent residency permit and/or as his green ID document – meaning Mr Nyathela’s allegation that these were illegitimately obtained was false. Mr Lukheli did not dispute this.
58. The Applicant put to the witness that the HOD opted to fill the position by advertising the post – that the principal told him the advert was the HOD’s directive. Mr Lukheli agreed, but retorted that when a position is advertised, any person can apply – there can be no presumption that the Applicant would, or even might, be appointed, from such an advert. The Applicant agreed with this statement and added that he was then interviewed, and recommended by the principal and SGB, as being the best candidate. He referred the witness to the recommendation letter in evidence, and asked why himself and the principal was then told, verbally, “not to appoint the Applicant because he is a foreigner”.
59. Mr Lukheli stated that an allegation of a verbal conversation cannot be entertained, as there is no record of this. I cautioned the Applicant that it does constitute hearsay evidence, as the person who told him this is not testifying today, but I will allow the evidence, however the weight it carries is restricted in terms of it being hearsay evidence.
60. The Applicant proceeded to ask the witness whether the Department of Education issue regret / rejection letters to unsuccessful applicants, and if so, whether he could see any such regret letter, because it is his contention that the letters of regrets / rejections are always done verbally to make sure there is no paper trail – that the applications are customarily just returned to the school. Mr Lukheli retorted that the Applicant’s question is irrelevant, and refused to answer on that basis.
61. Mr Lukheli stated that the ID of the Applicant states NON-South African. The ID is not used to appoint a foreigner. Quarter work permits or permanent work permits are what is used to verify whether a foreigner may work in South Africa. Only when a permanent post is advertised – only then may a foreigner apply to be appointed permanently – so that he should compete with South African citizens for the job. The Applicant strongly agreed, indicating that he prefers to compete fairly, adding that he completely agrees with competing, as he did, in the interviews and so forth. However, what he cannot fathom is why he then was rejected verbally with a reason of him being a foreigner, after he competed fairly, and was found the best candidate, and the school wanted him to remain in their classroom based on his students’ good results. Mr Lukheli retorted that he has no inclination to respond to hearsay evidence about the Applicant being told he is a foreigner and therefore should not be appointed.
ANALYSIS OF EVIDENCE AND ARGUMENT
62. I have considered all the evidence and argument lead by the parties in coming to my decision on this matter.
63. The message evidenced on page A22 – an SMS or email, source unknown – directing the criteria “Appointment of non-persalised qualified teachers” – “It is allowed as long as they are NOT foreigners” is a very unfortunate and very disconcerting paragraph to be handed into evidence. I agree wholeheartedly with the Applicant that it was grossly inappropriate to be circulated, and I consider his expressed feeling that it creates an apprehension of unfairness quite understandable.
64. The Respondent’s response was to deny that the Applicant was rejected for being a foreigner, and that him being from another country of origin was the reason why he was not appointed permanently. Rather, the Respondent alludes, the Applicant was rejected due to two reasons relating to the validity of his residency in South Africa – that a question mark had been placed on the authenticity of the Applicant’s permanent residency permit.
65. To justify this, the Respondent pointed out a discrepancy between two serial numbers – between the numbers A123486 vs A123436 – however I notice that the numeral 8 may show as a 3 due to it being done with a stamp of which the left-hand side of the 8 numeral may have been short of ink – making it look like a 3. Because I am uncertain whether the number on the permit is supposed to be a 3 or supposed to be an 8, I cannot practically establish whether the authentication form’s number is correct, or whether it was incorrectly copied from the permit. I suspect it was maybe correct but derived from another source other than the permit.
66. However, although I am not a document verification specialist, and because the Respondent claims foul play but failed to bring a witness to speak to the Home Affairs documents and its authenticity, it is in my view much more probable than not that the Applicant’s documents are in fact authentic. After all, verification came back as ‘authentic’; and more so, if his permanent residency permit was not authentic, he certainly would not have been issued an identity document on the back of it. Furthermore, the permanent residency permit was marked ‘authentic’ by the South African Department of Home Affairs (SA DHA) who issued it.
67. To this, the Respondent retorted an expressed view that corruption is rife in SA DHA, however, nothing more than this unsubstantiated allegation was placed before me – no evidence that this allegation of corruption even applied specifically to the Applicant’s documentation. No Official from the SA Department of Home Affairs was called to interpret the documentation, to speak to the processes followed in verification of the Applicant’s permit, or to answer to the allegation that the identity document the Respondent claims was improperly obtained was in fact so, alternatively issued by the SA Department of Home Affairs legitimately. This, even though it was this same Respondent who called upon this same DHA to verify the permits that lead to permanent appointments of other foreign educators.
68. The Respondent’s dispute of the Applicant’s entitlement in terms of a probable administrative discrepancy between two internal documents between the Respondent and the Department of Home Affairs, if find so minor and insignificant in light foremost of the Respondent having opted to re-appoint the Applicant annually on approximately 5 more fixed term contracts on the back of this same documentation it now questions.
69. In terms of the skills scarcity Gazetted in 2008, clearly hundreds of foreign Educators were appointed on fixed term contracts by the SA DOE irrespective of what abovementioned Immigration Act specifies as requirement – to have “an offer of permanent employment” with more provisions following this.
70. This brings me to the Respondent’s final contention – that the Applicant’s permanent residence permit should never have been issued – that it was improperly or illegitimately obtained in terms of section 26(a) of the Immigration Act 13 of 2002 blindly disregards, and fails to address, the Respondent’s own Circular S3/1/2/3/1 in evidence on page A13, read with Government Gazette No. 30975 dated 14 April 2008 it refers to, which openly declares that foreign educators – specifically 450 Educators to DOE Limpopo Province – was appointed in terms of their scarce skills qualifications, and that these Educators many of whom have been working in a temporary capacity should be converted to permanent appointment providing these individuals have since been granted their Permanent Residential Permits and was at the time employed on substantive posts.
71. The Applicant was exempted from this ‘red tape’ because there was a great shortage of Mathematics and Science teachers in South Africa. When he applied for an SA ID, his residency permit was vetted and he was granted his ID in 2014. The DOE of Limpopo Province had his (and others like him’s) work permits, and SA ID documents verified by Home Affairs, and for the Applicant the verification returned an ‘authentic’ status.
72. The Respondent’s policy to grant the HOD full discretion to decide without proper rationalization lends itself to discriminatory practices on this basis. This was evident as the HOD leapt through one recruitment method after the next in order to circumvent appointing the best candidate, who clearly was the Applicant. There was no evidence lead that the HOD ever even interviewed the Applicant, and his service record with the Respondent was impeccable. Irrespective of the school’s wish to have the Applicant – and the school is understandably the institution who best knows the Applicant’s conduct as an educator and clearly trusts him to do the best job, he was refused the job.
73. That the Respondent in this matter applied its discretion in excluding the Applicant from the pool of candidates for consideration, in spite of his qualifications, his excellent long service and great results in class, and his clearly justifiable expectation in terms of the various Circulars, provides the Applicant the validation of an unfair labour practice claim.
74. The Applicant’s fixed term appointment was renewed time after time, and no issue was raised with said permanent residency permit or with his ID document. I agree with the Applicant – if it was not valid, then why did they renew based thereon? The Respondent’s contention that the Department of Home Affairs is rife with fraud and corruption, therefore due to the singular numeral discrepancy the Applicant must be excluded from permanent employment is absurd in my view.
75. The Respondent also alluded that the recommendation of the Applicant by the SGB and school principal, as brought into evidence by the Applicant, does not comply with prescriptions – alternatively it is irregular and rejected – because the recommendation should have been made ‘on the prescribed form, and not just on a piece of paper’. The Respondent notably did not dispute that the recommendation was what it purports to be – that it was a signed and valid recommendation made by the SGB and school principal, but testified it was null and void as it is not on some prescribed form. This in my view is a ludicrous position to take. I say this because the Respondent alludes that there is a prescribed form, but he could not even produce such a form. When the Respondent representative was requested to show this elusive form, he could not. It is to me more probable than not such a form is not even standard practice for use – much less a requirement. Such reasoning smacks of micro aggression and the application of bureaucratic red tape to send teaching staff from pillar to post whereas they should be allowed to focus their attention and energy on teaching children and promoting the interests of education, rather than hunting for a correct template to write a recommendation letter onto.
76. From the evidence before me, the Applicant have done an excellent job educating children in South Africa for almost 15 years. I find it very unfortunate that the Respondent chose not to retain his services – for a reason that is inconsequential and arbitrary – it cannot be justified in light of his leaving his home country to aid the South African Department of Education who was at the time in dismal need of qualified and proficient, experienced Mathematics and Science educators to teach our children.
77. It is sad that now at a later stage when said skill is not scarce anymore the Applicant is refused permanent employment status, and with such inconsequential arguments proffered as reasoning.
78. The Respondent’s defense against the Applicant saying he was rejected for being a foreigner may have been unsubstantiated hearsay, however it rings true in light of the fact that the Respondent never disputed that the HOD left the post vacant – with a recently matriculated individual temporarily acting in the position for more than 3 months – obviously prejudicial to the children in the classroom – this after the Applicant’s contract was not renewed and the Department of Education of Limpopo having rejected the school’s request to appoint the Applicant in response to him applying for the advertised vacancy.
79. I have no doubt that the Applicant was treated unfairly in terms of the LP DOE not permanently appointing the Applicant on the back of the Collective Agreement and also its various directive Circulars.
80. The permanent appointment of the Applicant was not only long overdue in terms of his good service for 14 years, it was also the fervent wish of the school, the SGB and the principal. The results – pass rates and outstanding marks of the Applicant’s students – was exactly why the school wrote such wonderful things about him in the evidenced recommendation letter.
81. In terms of the discretion, the HOD had first refused in 2015 to convert the Applicant to permanent status, even though he qualified in every aspect. Then, at the end of 2021, the Applicant’s fixed term contract was not renewed, (acceptable in terms of the circulars conveying the Respondent’s intention to rid itself of the numerous fixed term contracts), to which the Respondent again failed to convert the Applicant as it should have in 2015 already. Then the HOD sidestepped to advertising the position – and again the Applicant came out on top. To which the HOD then simply refused the school’s pleadings to appoint the Applicant after he was shortlisted, interviewed and found the best candidate - with no logic or fair reasoning for this decision proffered, the school and the children’s needs were disregarded and the position left vacant, awaiting a later horizontal transfer to fill the position with a person from a neighbouring school who notably did not even apply for the vacancy when it had been advertised 4 months earlier. When the Respondent could find no reason not to appoint the Applicant, it opted to rather leave the classroom without its teacher of 14 years.
82. It leaves me in no doubt whatsoever that the Respondent was grabbing at straws to try to justify what can only be labelled an irrational unfair decision to refuse the Applicant permanent appointment.
83. Nevertheless, I am tasked with dealing with this dispute only as I am bound to do by the legislative framework in terms of which I’d been appointed to arbitrate.
Collective Agreement
84. In terms of ELRC Collective Agreement 4 of 2018 in evidence and in terms of him clearly having followed due process in applying for conversion at least once, one can only conclude that a permanent appointment was due to him. Others like him – in neighbouring schools in similar to his situation – was converted. This was the Applicant’s testimony, and although Mr Lukheli claimed to have no knowledge of this, the Circulars and Collective Agreements in evidence directly contradicted this, as it extensively dealt with how the 450 foreign educators employed by the Limpopo Department of Education must have their fixed term contracts converted to permanent appointment.
85. In terms of the binding nature of collective agreements concluded in bargaining councils, as provided for in section 31 of the LRA, the Applicant may have found relief in this avenue, however he did not refer his dispute in terms of this legislation. As mentioned earlier, I am bound by what the dispute was referred in terms of, that being section 186 of the LRA.
86. I had no evidence before me that he again applied for conversion of his fixed term contract to permanent appointment after 2015, but the Respondent certainly had a duty to fulfil its obligation to convert the Applicant at some stage during 2021, but failed to do so.
Unfair dismissal
87. The Applicant referred his dispute on 24 March 2022 – after being rejected on 14 February 2022. This strictly precludes me from dealing with this dispute in terms of section 186(1)(b)(i) in terms of the ELRC lacking jurisdiction to arbitrate a dispute of unfair dismissal more than 30 days after the employment relationship terminated on 31 December 2022 – that being a dismissal in terms of alleged reasonable expectation of renewal of a fixed term contract. The Applicant did not apply for condonation.
Unfair Labour Practice
88. Turning to the alleged unfair labour practice this dispute was referred in terms of, in March 2022. Although no condonation was required – the dispute was referred within 90 days from 14 February 2022 when the Applicant was informed that his application to the advertised substantive post number 3 was unsuccessful – the Applicant was no longer an employee of the Respondent at that time.
89. From the time he applied for the vacancy advertised late in January 2022, to the time he referred his dispute, the Applicant was not anymore an employee of the Respondent – rather he was a normal job-applicant. This precluded him from referring an unfair labour practice dispute when he was not an employee of the Respondent anymore.
90. In IMATU obo Joubert v Modimolle Local Municipality and others (2017) 38 ILJ 1137 (LC); [2018] 11 BLLR 1106 (LAC) the Labour Appeal Court held that the conduct of the Respondent did not amount to a failure to promote because she (the Applicant) was not an Employee who could be promoted, on the basis of her fixed-term contract which had lapsed. By the time the matter came to arbitration, the Applicant was no longer an Employee. She had therefore applied for a vacant position and could not have sought promotion. The Applicant was a job-applicant – not an employee who could claim a right to a promotion, or refer a dispute in terms of not being promoted. The LAC in abovementioned case also held:
“The facts show that at the time that the Arbitrator’s award was issued on the 15 March 2006, Ms Joubert was no longer an Employee of the Respondent’s. Since no unfair dismissal dispute had been referred to the Bargaining Council for adjudication, the expiry of her fixed-term contract went unchallenged. The Arbitrator in the promotion dispute was not empowered to determine an unfair dismissal dispute and could consequently not order the reinstatement of Ms Joubert into a position with the Respondents”. [Par 7]
91. The employment relationship had terminated on 31 December 2021, when his last fixed term contract came to an end.
92. Based on my lack of jurisdiction I therefore cannot find that the Respondent committed an unfair act or omission within the ambit of Section 186 of the LRA.
AWARD
93. The Applicant’s unfair labour practice claim in terms of Section 186 of the Labour Relations Act 66 of 1995 is dismissed.
Commissioner Sally-Jean Pabst
ELRC Arbitrator
Case No.: ELRC1050-21/22LP
Date of Award: 12 August 2022
In the ARBITRATION between:
Mr Taurai Lawrence MUSHAYABASA
(Union / Applicant)
and
Limpopo Province Department of Education
(Respondent)
Applicant: Email: lawmush@gmail.com
Persal number: 83055665
Respondent’s representative: Mr Eric Nkhumeleni Nyathela
Email: nyathela.ericn@limpopo.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred to the Education Labour Relations Council (ELRC) in terms of section 186(2) of the Labour Relations Act 66 of 1995 (LRA) – that of an alleged unfair labour practice relating to promotion – emanating from the Respondent failing or refusing to permanently appoint the Applicant as provided for in ELRC Collective Agreement 4 of 2018.
2. Further to this, it is the Applicant’s contention that appropriate interpretation and application of abovementioned Collective Agreement provides him with the vehicle to be promoted to the status of permanently appointed Educator in the post he has been filling in the capacity of fixed term contracts that has been annually renewed without interruption of service from 22 January 2009 to 31 December 2021 – when his second application for permanent status in his substantive post was met with rejection, as well as non-renewal of this fixed term contract.
3. This arbitration was conducted virtually via Zoom and video-recorded with the consent of the parties, on 30 June 2022 and concluded on 15 July 2022.
4. The Applicant was present and represented himself. The Respondent, the Department of Education (DOE) of the Limpopo Province was represented by Mr Eric Nkhumeleni Nyathela.
5. The pre-arbitration conference had been conducted, and I received the minute via email before the arbitration process commenced.
6. The parties each submitted a bundle of evidence, of which Bundle A was that of the Applicant, consisting of 57 pages, and Bundle B was that of the Respondent consisting of 101 pages.
7. In terms of the LRA, the Applicant bears the onus to show that the Respondent committed an act or omission that may be construed as an unfair labour practice. Once said act or omission has been confirmed, the onus shifts to the Respondent to prove that the act or omission was not unfair.
ISSUE TO BE DECIDED
8. I have to determine on a balance of probabilities whether the Applicant was subjected to any unfair act or omission by the Respondent, relating to promotion to the status of permanent appointment.
9. Only if an unfair labour practice is confirmed, I must determine an appropriate remedy in terms of section 193, read with section 194, of the LRA.
BACKGROUND
10. The Applicant had been employed temporarily by the Limpopo Province DOE (LP DOE) in substantive post number 03 as a Mathematics and Physical Science Educator at Ngwanamashile High School, Sekhukhune South District, until 31 December 2021.
11. At the time of termination the Applicant was earning a monthly remuneration of R 25,143.25 per month.
12. It is the Applicant’s contention that appropriate interpretation and application of abovementioned Collective Agreement would provide him with the vehicle to be promoted to the status of permanently appointed Educator in the post he has been filling on fixed term contracts annually renewed continuously from 22 January 2009 to 31 December 2021
13. The Respondent disputes the Applicant’s contention that its failure or refusal to either renew the Applicant’s contract, alternatively to appoint the Applicant permanently in terms of his applications for permanent employment status amounts to an unfair labour practice in terms of section 186(2)(a) of the LRA.
SURVEY OF EVIDENCE AND ARGUMENT
14. As provided for in terms of Section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities.
15. In terms of s138(7)(a) of the LRA, I only include evidence I found particularly relevant in making a decision. Accordingly, below is a brief summary of the evidence I found pertinent in determining the outcome of the dispute.
APPLICANT’S EVIDENCE
16. The Applicant testified that he was working in a permanent job in his country of origin, Zimbabwe, prior to 2009. He was then given an opportunity to go and work in South Africa in terms of his qualification – that of educator in the subjects Mathematics and Physical Science – this in terms of Government Gazette No. 30975 dated 14 April 2008 having declared educators qualified to teach the subjects Mathematics and Physical Science as ‘scarce skills’ in the public schools of SA.
17. Although the Immigration Act prescribes that a work permit to SA may only be allocated to foreigners who already have an offer of permanent employment in SA, this prescription was legitimately circumvented for these educators – the Applicant was one of these – who possess a scarce skill that is rare and urgently needed in SA.
18. The Applicant obtained a SAQA Certification of qualifications in May 2007, his South African Council for Educators (SACE) registration as from July 2008, and in February 2009 an Evaluation Of Qualifications to “REQV 14, professionally qualified” from the Evaluation Committee of the SA Department of Education – all of which authenticated him and ratified his appointment as Educator in South Africa.
19. The Applicant was subsequently appointed on a fixed term contract by the Limpopo Province Department of Education’s Ngwanamashile High School, Sekhukhune South District, where he worked in substantive post number 3 as a Mathematics Educator continuously on annually renewed fixed term contracts until his last contract terminated by virtue its expiry date, on 31 December 2021.
20. In 2013 the Department of Home Affairs (DHA) granted the Applicant his Permanent Residency Permit and in 2014 he granted a South African Identity Document (SA ID) on the back of his Permanent Residence Permit (permit).
21. Then, in 2015 the Applicant applied for conversion to permanent appointment status in the position he had been filling in temporary contracts for 6 years at that time, but received no response to his application. Although he qualified to be converted in terms of the criteria, his application documents were all sent back to the school without action taken by the DOE.
22. Circular 125 of 2018 prioritised the appointment of educators who meet the minimum appointment requirements if they are “Professionally qualified educators employed in a temporary capacity in substantive posts for 3 months or more continuous service”, and the Applicant also had his Permanent Residency Permit verified, and a SA ID too.
23. The Applicant testified he was concerned and disappointed that his conversion was not effected – just sent back to the school without even an explanation by the DOE – whereas other foreign educators in exactly the same situation as him, but from other schools, had their employment status’ converted.
24. Then in November 2019 a Circular referenced S3/1/2/3/1 provided instruction from the LP DOE to all its Districts, Circuits and School Governing Bodies that the Limpopo DOE “intends to appoint permanently the 450 foreign educators appointed” in terms of Government Gazette No. 30975 (14 April 2008), providing these educators are professionally qualified, are in possession of valid authentic Permanent Residential Permits, and was at the time employed in substantive posts at least from 1 January 2020.
25. Above Circular notably further instructed that, in terms of said instruction to permanently appoint these Educators, accordingly no further blanket extensions of temporary contracts for these educators will be permitted as from 1 January 2020. Further instructions was clear in the Circular on the requirements and process for application to permanent appointment of these educators.
26. The Applicant explained that in the space of time after he received his ID, his documentation, fingerprints and verification was done by the Department of Home Affairs twice – once of which was on request of the Respondent.
27. To this, the DOE obtained verification from the SA Department of Home Affairs for the SA ID’s and permanent residency permits of 53 of the above mentioned 450 foreign Educators, of which the Applicant’s name and details was listed as number 41 on this list in evidence – his ID and Permanent Residential Permit residency permit verified as ‘AUTHENTIC’.
28. In November 2021, Circular No. 163 of 2021, referenced S3/1/2/3/2 and evidenced in the Applicant’s bundle was distributed to all LP DOE Districts, Circuits, School Principals and Educators. It informed that the positions filled by foreign Educators still working on contracts has been advertised as promotion posts on 5 September 2021, and directed that these posts must be permanently filled effective 1 January 2022 - thus an impending deadline for the Applicant to be permanently appointed.
29. The Applicant decided to apply for the position when it was advertised. He did so, and received profound support of the school governing body and principal, evident from the recommendation letters in evidence submitted with his application to the Respondent after he was interviewed by the SGB. He was undoubtedly the best candidate, and towered head and shoulders above the other candidates in terms of score and historical performance. Nevertheless, exactly as was the case with his conversion application 7 years before, the Applicant’s application for the position was sent back without any feedback. Upon enquiry he was informed by the Circuit Manager that him being a foreigner was the reason why he was not appointed permanently. His contract was not renewed.
30. Mr Nyathela questioned the Applicant about the process late in 2021 – early 2022. To this the Applicant explained that the Circuit Office usually takes their time (takes long) in issuing a new contract appointment letter extending or renewing a fixed term – that it usually comes only in February, and is backdated to the beginning of January.
31. He explained that, in the first few years the school would customarily tell him to stay home and wait for the approval, but later they proceeded to say he can report for work –the approval coming. It would usually arrive about 2 weeks after the school term started.
32. On his last contract, the Applicant requested renewal of his fixed term shortly before he was told his vacant permanent post number 03 will be advertised, to which he applied, too. Mr Nyathela took issue with the Applicant following both avenues – questioning his expectation of being retained on a fixed term contract seeing as he applied for the permanent basis. The Applicant explained that he applied at various schools – following every avenue – to ensure the best possible chance of remaining in the employ of the Department of Education in South Africa.
33. Mr Nyathela proceeded to point out to the Applicant that his expectation to stay on in the Respondent’s employ was unfounded and unsubstantiated by anything the Respondent did. The Applicant retorted that his reasonable expectation was in the first place that he would remain in his position at the school he served for 14 years, based on having remained there so long and done a very good job at that, and secondly a further reasonable expectation to be employed permanently was created to be appointed permanently in post number 03 when it was advertised in terms of having been told he is the preferred candidate and that the school governing body and school principal is recommending him for the post to the Circuit Manager, for the Respondent to appoint him. That was when he reasonably could expect to be permanently appointed – based on the documentation in the bundle showing he was the best candidate and also the only one the SGB preferred.
34. Mr Nyathela put to the Applicant that the recommendation from the school governing body does not comply with the provisions of the Limpopo Chamber ELRC Collective Agreement 2 of 2020, as it should have been made on the prescribed form, in terms of said provisions. To this, the Applicant retorted that page A25 is the cover letter of the recommendation – that the recommendation Mr Nyathela is referring to is evidenced on page 35 – containing the names and scores and ratings of the 3 candidates that were shortlisted and interviewed – one of which was the Applicant. Mr Nyathela continued insisting it is not the correct form, but in any event he does not have the correct form available.
35. Mr Eric Nyathela put to the Applicant that he had not had the authority to admit pages A15 to A18 into evidence, as he was not the author nor the recipient of the document. I explained to the parties that the evidence may constitute hearsay evidence – that it is nevertheless admissible, but that the probative value of the document will be evaluated with due consideration to the fact that its author is not here to speak about the document.
36. In response the Applicant pointed out that the document is proof nevertheless that the Respondent pursued, and was provided with verification of the credentials and validity of the ID’s and permits of the foreign persons listed, and that it merely serves to substantiate what should already be probable, clear and obvious from the fact that the Applicant was retained in the employ of the Respondent for 7 years and 7 contract-renewals and two verifications of credentials and documents thereafter.
37. Mr Nyathela put to the Applicant that the Respondent’s witness will dispute that the Applicant’s was a “scarce skill” and given special permission to come and work in South Africa at any point. The Applicant disagreed, referring again to the Circulars and the Government Gazette quoted earlier. Mr Nyathela further put to the Applicant that, because it is the Respondent’s view that there was no scarce skill-concern, there was accordingly no lawful way the Applicant could have legitimately obtained a permanent residency permit in the absence of a permanent job offer, in terms of of section 26(a) of the Immigration Act 13 of 2002 (evidenced on page B68). The Applicant disagreed vehemently with this, restating that in terms of his (Gazetted) scarce qualification, special allowance was made.
38. The Applicant testified that the position the Respondent failed to appoint him in was only after about 3 months – in April 2022 – filled by a horizontal transfer of another educator who lives in the vicinity but had been working for the Limpopo DOE at another school far away, who then did not have to commute to work anymore. However, in the interim – the first 3 months of 2022 – the Applicant testified, a recently matriculated student that he himself taught acted in the post in the interim, which was not ideal. Mr Nyathela had no rejoinder to this, and concluded his cross-questioning.
39. The Applicant testified that he is not wishing for retrospective appointment as relief in this dispute arbitration. His reasons are firstly as noted in the pre-arbitration minute in evidence, the post is no longer available.
40. Secondly, he feels aggrieved that he has been rejected for conversion promotion to status of permanent employment in spite of serving faithfully and outstandingly for many years as a Mathematics teacher and having exemplary recommendations from the school governing body and principal of the school he served.
41. To this, his recommendations are evidenced on pages A36 (for his 2015 application) and signed off by the SGB Chair and Circuit Manager as evidenced on page A40, as well as on pages A25 and A30 (for Applicant’s 2022 application to which he was verbally informed that he was unsuccessful due to him being a foreigner – this in spite of him being the only 1 of the 3 interviewed applicants to the post who scored “Good Results”.
42. The Applicant, as third motivation to not wish for appointment in relief, evidenced on page A22 a ‘Criteria’ and ‘Description’ excerpt, which he attested is admittedly unsubstantiated and the source unclear, with as ‘Criteria’ to “Appointment of non-persalised qualified teachers” provides under ‘Description’ “It is allowed as long as they are NOT foreigners” in bold and red font – which effectively disheartens him from pursuing further employment with the Department of Education.
43. Collective Agreement 4 of 2018 sets out, at paragraph 3, that when an arbitrator must determine whether an objectively reasonable expectation of either renewal of the FTC or being permanently retained in employment on an indefinite basis as described in the LRA’s section 186(1)(b), certain relevant factors must be taken into account by the arbitrator determining the dispute. They are inter alia
3.4 the law, practice or custom relating to the renewal of temporary contracts or the conversion of temporary contracts to permanent ones;
3.5 the extent to which there have been repeated renewals;
44. The Applicant submitted that others like him have been customarily and in terms of the various circulars converted to permanent employment status, but contrary to his objectively reasonable expectations his was not. Also, the extent to which his FTC’s were renewed – annually for 12 years – certainly created the expectation that he will be retained indefinitely as a permanent employee.
RESPONDENT’S EVIDENCE
45. Mr Nyathela stated that the Respondent made the decision not to renew the Applicant’s contract of post number 3 – in the interest of and in the spirit of fair labour practices and also Collective Agreement 4 of 2018. People should not be kept in fixed term contracts for such very long periods – rather the positions must be advertised and filled permanently, which is what the HOD decided in terms of her discretion – post number 3 was advertised on 28 January 2022. It was an open advert, and everyone was invited to apply – also the Applicant – which he did, but he was not appointed because the HOD made that decision in terms of her discretion.
46. The HOD enjoys that discretion in terms of Collective Agreement 4 or 2018 in evidence, stating the HOD may decide that conversion to permanent can be refused if the HOD decides to follow the normal recruitment and selection processes, and also she may decide at any point to follow a different method of recruitment and selection, which is why a horizontal transfer was applicable.
47. Mr Thomani Victor Lukheli was placed under oath, whereafter he testified that he is the Respondent’s Assistant Director of Human Resources. Mr Nyathela took Mr Lukheli through the evidence the Applicant’s case incorporates, as well as reading into evidence the various passages dealt with in the Applicant’s evidence.
48. The witness testified that the HOD has the final discretion on whether to appoint the Applicant permanently, and made the correct decision in terms of her powers to fill the post with whomever she finds suitable. The SGB’s recommendation was not found to be ideal under the circumstances, hence the Applicant was not appointed. The witness testified he relies on Collective Agreement 2 of 2020 and also the Employment of Educators Act for this conviction.
49. Mr Nyathela referred the witness to Collective Agreement 4 of 2018 – passages were read into evidence – both parts speaking to the fact that the HOD has the final discretion whether or not to permanently appoint any temporary educator.
50. Circular S3/1/2/3/1 in the Applicant’s bundle was read into evidence – specifically at paragraph 5 – to which the witness was asked whether this paragraph in conjunction with the Applicant’s permanent residency permit on page A5 affords the Applicant the expectation to be appointed permanently.
51. The witness replied “The holder of this permit is not looking for a job. In terms of the Immigration Act, the permit holder should have already had a job, to which he should have submitted this permit after its issue to the employer who offered him the permanent position, and claim that permanent position in terms of this permit – but that employer was not the Department of Education. Only people who already have permanent employment may be issued this permit. If the Applicant was given this permanent without a permanent job, that was in contravention to the Immigration Act.”
52. Mr Nyathela told the witness that the Applicant testified he was offered his educator position in terms of him having a scarce skill – teaching Maths and Science. Mr Lukheli testified that, to his knowledge, the Department of Education around 2013 never intended to offer a permanent position to foreigners, and according to his records the DOE never issued a permanent job offer to this Applicant. Mr Lukheli did not agree nor rebut the ‘scarce skills’ portion of Mr Nyathela’s statement.
53. Mr Lukheli was directed to the document in evidence – “Feedback on Verification of Educators” – where the Applicant’s is listed as ‘AUTHENTIC’. The witness replied that although he is not doubting the validity of the permit on page 5, the permit on page 5 is in his view definitely not the same document that was verified by Home Affairs as seen on page 17, in terms of the discrepancy between the numbers.
54. In cross-examination the Applicant put to Mr Lukheli that many foreign educators was appointed in permanent positions in 2015 in other provinces, at the same time he also applied for this in terms of the various Circulars in evidence directing that foreign educators must be appointed permanently. That verification was done to substantiate the criteria for their transition to permanent status. The Applicant asked the witness how it is, why he says, “the Department of Education around 2013 never intended to offer a permanent position to foreigners” if many of them were given permanent jobs?
55. Mr Lukheli denied that the Department directed foreign educators to be appointed permanent. The Department has no record of such permanent appointments in 2015. The Department did not issue such a directive in 2015, and he does not know about any foreigners appointed permanently, therefore he cannot speak about such people or appointments that he does not know about.
56. Mr Lukheli testified that his system shows the Applicant was appointed based on a temporary permit which expired 31-12-2021. The Applicant corrected the witness, saying his first ‘quarter’ permit – not included in evidence as it expired in 2012 – was his first permit, on his very first fixed term contract. Thereafter he was issued the Permanent Residency Permit. The Applicant asked whether the witness is implying that the DOE renews contracts in terms of expired or invalid documents? Mr Lukheli replied that the DOE does not, and he (Mr Lukheli) cannot comment, because all he knows is what is in his system.
57. The Applicant pointed out that the Respondent renewed the Applicant’s contract annually from 2012 when that ‘quarter’ permit expired, and if that was not renewed based on expired documents, then they must logically have used his permanent residency permit and/or as his green ID document – meaning Mr Nyathela’s allegation that these were illegitimately obtained was false. Mr Lukheli did not dispute this.
58. The Applicant put to the witness that the HOD opted to fill the position by advertising the post – that the principal told him the advert was the HOD’s directive. Mr Lukheli agreed, but retorted that when a position is advertised, any person can apply – there can be no presumption that the Applicant would, or even might, be appointed, from such an advert. The Applicant agreed with this statement and added that he was then interviewed, and recommended by the principal and SGB, as being the best candidate. He referred the witness to the recommendation letter in evidence, and asked why himself and the principal was then told, verbally, “not to appoint the Applicant because he is a foreigner”.
59. Mr Lukheli stated that an allegation of a verbal conversation cannot be entertained, as there is no record of this. I cautioned the Applicant that it does constitute hearsay evidence, as the person who told him this is not testifying today, but I will allow the evidence, however the weight it carries is restricted in terms of it being hearsay evidence.
60. The Applicant proceeded to ask the witness whether the Department of Education issue regret / rejection letters to unsuccessful applicants, and if so, whether he could see any such regret letter, because it is his contention that the letters of regrets / rejections are always done verbally to make sure there is no paper trail – that the applications are customarily just returned to the school. Mr Lukheli retorted that the Applicant’s question is irrelevant, and refused to answer on that basis.
61. Mr Lukheli stated that the ID of the Applicant states NON-South African. The ID is not used to appoint a foreigner. Quarter work permits or permanent work permits are what is used to verify whether a foreigner may work in South Africa. Only when a permanent post is advertised – only then may a foreigner apply to be appointed permanently – so that he should compete with South African citizens for the job. The Applicant strongly agreed, indicating that he prefers to compete fairly, adding that he completely agrees with competing, as he did, in the interviews and so forth. However, what he cannot fathom is why he then was rejected verbally with a reason of him being a foreigner, after he competed fairly, and was found the best candidate, and the school wanted him to remain in their classroom based on his students’ good results. Mr Lukheli retorted that he has no inclination to respond to hearsay evidence about the Applicant being told he is a foreigner and therefore should not be appointed.
ANALYSIS OF EVIDENCE AND ARGUMENT
62. I have considered all the evidence and argument lead by the parties in coming to my decision on this matter.
63. The message evidenced on page A22 – an SMS or email, source unknown – directing the criteria “Appointment of non-persalised qualified teachers” – “It is allowed as long as they are NOT foreigners” is a very unfortunate and very disconcerting paragraph to be handed into evidence. I agree wholeheartedly with the Applicant that it was grossly inappropriate to be circulated, and I consider his expressed feeling that it creates an apprehension of unfairness quite understandable.
64. The Respondent’s response was to deny that the Applicant was rejected for being a foreigner, and that him being from another country of origin was the reason why he was not appointed permanently. Rather, the Respondent alludes, the Applicant was rejected due to two reasons relating to the validity of his residency in South Africa – that a question mark had been placed on the authenticity of the Applicant’s permanent residency permit.
65. To justify this, the Respondent pointed out a discrepancy between two serial numbers – between the numbers A123486 vs A123436 – however I notice that the numeral 8 may show as a 3 due to it being done with a stamp of which the left-hand side of the 8 numeral may have been short of ink – making it look like a 3. Because I am uncertain whether the number on the permit is supposed to be a 3 or supposed to be an 8, I cannot practically establish whether the authentication form’s number is correct, or whether it was incorrectly copied from the permit. I suspect it was maybe correct but derived from another source other than the permit.
66. However, although I am not a document verification specialist, and because the Respondent claims foul play but failed to bring a witness to speak to the Home Affairs documents and its authenticity, it is in my view much more probable than not that the Applicant’s documents are in fact authentic. After all, verification came back as ‘authentic’; and more so, if his permanent residency permit was not authentic, he certainly would not have been issued an identity document on the back of it. Furthermore, the permanent residency permit was marked ‘authentic’ by the South African Department of Home Affairs (SA DHA) who issued it.
67. To this, the Respondent retorted an expressed view that corruption is rife in SA DHA, however, nothing more than this unsubstantiated allegation was placed before me – no evidence that this allegation of corruption even applied specifically to the Applicant’s documentation. No Official from the SA Department of Home Affairs was called to interpret the documentation, to speak to the processes followed in verification of the Applicant’s permit, or to answer to the allegation that the identity document the Respondent claims was improperly obtained was in fact so, alternatively issued by the SA Department of Home Affairs legitimately. This, even though it was this same Respondent who called upon this same DHA to verify the permits that lead to permanent appointments of other foreign educators.
68. The Respondent’s dispute of the Applicant’s entitlement in terms of a probable administrative discrepancy between two internal documents between the Respondent and the Department of Home Affairs, if find so minor and insignificant in light foremost of the Respondent having opted to re-appoint the Applicant annually on approximately 5 more fixed term contracts on the back of this same documentation it now questions.
69. In terms of the skills scarcity Gazetted in 2008, clearly hundreds of foreign Educators were appointed on fixed term contracts by the SA DOE irrespective of what abovementioned Immigration Act specifies as requirement – to have “an offer of permanent employment” with more provisions following this.
70. This brings me to the Respondent’s final contention – that the Applicant’s permanent residence permit should never have been issued – that it was improperly or illegitimately obtained in terms of section 26(a) of the Immigration Act 13 of 2002 blindly disregards, and fails to address, the Respondent’s own Circular S3/1/2/3/1 in evidence on page A13, read with Government Gazette No. 30975 dated 14 April 2008 it refers to, which openly declares that foreign educators – specifically 450 Educators to DOE Limpopo Province – was appointed in terms of their scarce skills qualifications, and that these Educators many of whom have been working in a temporary capacity should be converted to permanent appointment providing these individuals have since been granted their Permanent Residential Permits and was at the time employed on substantive posts.
71. The Applicant was exempted from this ‘red tape’ because there was a great shortage of Mathematics and Science teachers in South Africa. When he applied for an SA ID, his residency permit was vetted and he was granted his ID in 2014. The DOE of Limpopo Province had his (and others like him’s) work permits, and SA ID documents verified by Home Affairs, and for the Applicant the verification returned an ‘authentic’ status.
72. The Respondent’s policy to grant the HOD full discretion to decide without proper rationalization lends itself to discriminatory practices on this basis. This was evident as the HOD leapt through one recruitment method after the next in order to circumvent appointing the best candidate, who clearly was the Applicant. There was no evidence lead that the HOD ever even interviewed the Applicant, and his service record with the Respondent was impeccable. Irrespective of the school’s wish to have the Applicant – and the school is understandably the institution who best knows the Applicant’s conduct as an educator and clearly trusts him to do the best job, he was refused the job.
73. That the Respondent in this matter applied its discretion in excluding the Applicant from the pool of candidates for consideration, in spite of his qualifications, his excellent long service and great results in class, and his clearly justifiable expectation in terms of the various Circulars, provides the Applicant the validation of an unfair labour practice claim.
74. The Applicant’s fixed term appointment was renewed time after time, and no issue was raised with said permanent residency permit or with his ID document. I agree with the Applicant – if it was not valid, then why did they renew based thereon? The Respondent’s contention that the Department of Home Affairs is rife with fraud and corruption, therefore due to the singular numeral discrepancy the Applicant must be excluded from permanent employment is absurd in my view.
75. The Respondent also alluded that the recommendation of the Applicant by the SGB and school principal, as brought into evidence by the Applicant, does not comply with prescriptions – alternatively it is irregular and rejected – because the recommendation should have been made ‘on the prescribed form, and not just on a piece of paper’. The Respondent notably did not dispute that the recommendation was what it purports to be – that it was a signed and valid recommendation made by the SGB and school principal, but testified it was null and void as it is not on some prescribed form. This in my view is a ludicrous position to take. I say this because the Respondent alludes that there is a prescribed form, but he could not even produce such a form. When the Respondent representative was requested to show this elusive form, he could not. It is to me more probable than not such a form is not even standard practice for use – much less a requirement. Such reasoning smacks of micro aggression and the application of bureaucratic red tape to send teaching staff from pillar to post whereas they should be allowed to focus their attention and energy on teaching children and promoting the interests of education, rather than hunting for a correct template to write a recommendation letter onto.
76. From the evidence before me, the Applicant have done an excellent job educating children in South Africa for almost 15 years. I find it very unfortunate that the Respondent chose not to retain his services – for a reason that is inconsequential and arbitrary – it cannot be justified in light of his leaving his home country to aid the South African Department of Education who was at the time in dismal need of qualified and proficient, experienced Mathematics and Science educators to teach our children.
77. It is sad that now at a later stage when said skill is not scarce anymore the Applicant is refused permanent employment status, and with such inconsequential arguments proffered as reasoning.
78. The Respondent’s defense against the Applicant saying he was rejected for being a foreigner may have been unsubstantiated hearsay, however it rings true in light of the fact that the Respondent never disputed that the HOD left the post vacant – with a recently matriculated individual temporarily acting in the position for more than 3 months – obviously prejudicial to the children in the classroom – this after the Applicant’s contract was not renewed and the Department of Education of Limpopo having rejected the school’s request to appoint the Applicant in response to him applying for the advertised vacancy.
79. I have no doubt that the Applicant was treated unfairly in terms of the LP DOE not permanently appointing the Applicant on the back of the Collective Agreement and also its various directive Circulars.
80. The permanent appointment of the Applicant was not only long overdue in terms of his good service for 14 years, it was also the fervent wish of the school, the SGB and the principal. The results – pass rates and outstanding marks of the Applicant’s students – was exactly why the school wrote such wonderful things about him in the evidenced recommendation letter.
81. In terms of the discretion, the HOD had first refused in 2015 to convert the Applicant to permanent status, even though he qualified in every aspect. Then, at the end of 2021, the Applicant’s fixed term contract was not renewed, (acceptable in terms of the circulars conveying the Respondent’s intention to rid itself of the numerous fixed term contracts), to which the Respondent again failed to convert the Applicant as it should have in 2015 already. Then the HOD sidestepped to advertising the position – and again the Applicant came out on top. To which the HOD then simply refused the school’s pleadings to appoint the Applicant after he was shortlisted, interviewed and found the best candidate - with no logic or fair reasoning for this decision proffered, the school and the children’s needs were disregarded and the position left vacant, awaiting a later horizontal transfer to fill the position with a person from a neighbouring school who notably did not even apply for the vacancy when it had been advertised 4 months earlier. When the Respondent could find no reason not to appoint the Applicant, it opted to rather leave the classroom without its teacher of 14 years.
82. It leaves me in no doubt whatsoever that the Respondent was grabbing at straws to try to justify what can only be labelled an irrational unfair decision to refuse the Applicant permanent appointment.
83. Nevertheless, I am tasked with dealing with this dispute only as I am bound to do by the legislative framework in terms of which I’d been appointed to arbitrate.
Collective Agreement
84. In terms of ELRC Collective Agreement 4 of 2018 in evidence and in terms of him clearly having followed due process in applying for conversion at least once, one can only conclude that a permanent appointment was due to him. Others like him – in neighbouring schools in similar to his situation – was converted. This was the Applicant’s testimony, and although Mr Lukheli claimed to have no knowledge of this, the Circulars and Collective Agreements in evidence directly contradicted this, as it extensively dealt with how the 450 foreign educators employed by the Limpopo Department of Education must have their fixed term contracts converted to permanent appointment.
85. In terms of the binding nature of collective agreements concluded in bargaining councils, as provided for in section 31 of the LRA, the Applicant may have found relief in this avenue, however he did not refer his dispute in terms of this legislation. As mentioned earlier, I am bound by what the dispute was referred in terms of, that being section 186 of the LRA.
86. I had no evidence before me that he again applied for conversion of his fixed term contract to permanent appointment after 2015, but the Respondent certainly had a duty to fulfil its obligation to convert the Applicant at some stage during 2021, but failed to do so.
Unfair dismissal
87. The Applicant referred his dispute on 24 March 2022 – after being rejected on 14 February 2022. This strictly precludes me from dealing with this dispute in terms of section 186(1)(b)(i) in terms of the ELRC lacking jurisdiction to arbitrate a dispute of unfair dismissal more than 30 days after the employment relationship terminated on 31 December 2022 – that being a dismissal in terms of alleged reasonable expectation of renewal of a fixed term contract. The Applicant did not apply for condonation.
Unfair Labour Practice
88. Turning to the alleged unfair labour practice this dispute was referred in terms of, in March 2022. Although no condonation was required – the dispute was referred within 90 days from 14 February 2022 when the Applicant was informed that his application to the advertised substantive post number 3 was unsuccessful – the Applicant was no longer an employee of the Respondent at that time.
89. From the time he applied for the vacancy advertised late in January 2022, to the time he referred his dispute, the Applicant was not anymore an employee of the Respondent – rather he was a normal job-applicant. This precluded him from referring an unfair labour practice dispute when he was not an employee of the Respondent anymore.
90. In IMATU obo Joubert v Modimolle Local Municipality and others (2017) 38 ILJ 1137 (LC); [2018] 11 BLLR 1106 (LAC) the Labour Appeal Court held that the conduct of the Respondent did not amount to a failure to promote because she (the Applicant) was not an Employee who could be promoted, on the basis of her fixed-term contract which had lapsed. By the time the matter came to arbitration, the Applicant was no longer an Employee. She had therefore applied for a vacant position and could not have sought promotion. The Applicant was a job-applicant – not an employee who could claim a right to a promotion, or refer a dispute in terms of not being promoted. The LAC in abovementioned case also held:
“The facts show that at the time that the Arbitrator’s award was issued on the 15 March 2006, Ms Joubert was no longer an Employee of the Respondent’s. Since no unfair dismissal dispute had been referred to the Bargaining Council for adjudication, the expiry of her fixed-term contract went unchallenged. The Arbitrator in the promotion dispute was not empowered to determine an unfair dismissal dispute and could consequently not order the reinstatement of Ms Joubert into a position with the Respondents”. [Par 7]
91. The employment relationship had terminated on 31 December 2021, when his last fixed term contract came to an end.
92. Based on my lack of jurisdiction I therefore cannot find that the Respondent committed an unfair act or omission within the ambit of Section 186 of the LRA.
AWARD
93. The Applicant’s unfair labour practice claim in terms of Section 186 of the Labour Relations Act 66 of 1995 is dismissed.
Commissioner Sally-Jean Pabst
ELRC Arbitrator