ELRC771-21/22WC

Panelist: Sally-Jean Pabst
Case No.: ELRC771-21/22WC
Date of Award: 03 November 2022

In the ARBITRATION between:

SAOU obo CLOETE, Karin Joy
(Union / Applicant)

and

Western Cape Department of Education
(Respondent)

Applicant: Email: CloeteKJ.05@gmail.com
Persal number: 50318136

Applicant’s representative: Rudolf Baard - SAOU
Email: vvvwk2@saou.co.za

Respondent’s representative: Athne Willemse – WCED
Email: athne.willemse@westerncape.gov.za

DETAILS OF HEARING AND REPRESENTATION
1. The Applicant, Ms Karin Cloete, referred an unfair dismissal dispute in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (“the LRA”) to the ELRC.
2. A certificate, declaring the matter unresolved at conciliation, was on the file.
3. The arbitration was conducted virtually via Zoom and recorded with the consent of the parties, on 10 June 2022, 21 July 2022, 29 July 2022 and concluded on 7 October 2022.
4. After the conclusion of the arbitration, the parties submitted written closing arguments by 14 October 2022.
5. The Respondent, the Western Cape Education Department (WCED), was represented by Ms Athne Willemse, the Departmental Representative.
6. The Applicant was present and represented by Mr Rudolf Baard, an official from the South African Teachers Union (SAOU).
7. The parties each submitted a bundle of evidence, to which all documents were agreed to be what they purport to be. The parties had conducted a pre-arbitration conference and the minute was admitted into evidence.

ISSUE TO BE DECIDED
8. I must determine, on a balance of probabilities, whether the WCED’s dismissal of Ms Cloete was procedurally and substantively unfair.
9. Only if an unfair dismissal is confirmed, I must award an appropriate remedy in terms of section 193, read with section 194, of the LRA. The Applicant’s expressed wish is to be compensated the salaries she would have earned from 1 January 2022 to 14 March 2022 on which date she had obtained alternative employment.

BACKGROUND
10. The following was listed as common-cause:
10.1. The Applicant had been employed by the Respondent as a Post Level 1 educator at Montana Primary School from 1 January 2017 to 31 December 2021 on annually-renewed fixed term contracts.
10.2. The Respondent did not provide the Applicant with either a letter of appointment or a contract of employment.
10.3. On 17 November 2021, a meeting was held with the Applicant to inform her that her contract will terminate on 31 December 2021, and that it will not be renewed or extended.
10.4. At the time of her dismissal earned an annual salary of R 306,246.00 (notch code 179), that being R 25,520.50 per month.
10.5. The Applicant did not qualify for conversion – this in terms of provisions set in the conversion policy excluding her due to her previous exit from service on ill-health retirement.
10.6. The Applicant’s dismissal on 31 December 2021 was not in terms of her disciplinary record, misconduct, or in terms of any performance challenges, and she was also both qualified and able to continue to fulfil her contractual obligations in the position she had been in.
10.7. No grievance meeting or hearing was convened prior to the Applicant’s termination, in response to her grievance lodged.

SURVEY OF EVIDENCE AND ARGUMENT
11. 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.
12. 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.

Respondent’s Evidence
13. The decision not to extend the Applicant’s contract was taken after the principal/the school received communication from the WCED, documents admitted into evidence.
14. The interpretation and purpose of said communication documents from the WCED was testified to and explained by the Respondent’s two witnesses, Ms Deborah Fienies who is the principal of Montana Primary School, as well as Ms Zanele Nkibi who is the assistant director of Recruitment and Selection who also testified to the conversion policy and processes. Ms Lauren Randall, the assistant director of labour relations, testified to the grievance policy and processes.
15. The first two witnesses, Ms Fienies and Ms Nkibi, conveyed that the communication from the WCED sets out the conversion project as a result of an unacceptably high number of educators on contract, and seek to ensure among other things a reduction in the vacancy rate, stability at schools, improvement in the quality of teaching and learning, as well as savings- and compliance factors.
16. The communication from the WCED further expressed the goal of having the majority of qualified post level 1 educators employed at schools on a contract basis employed on a permanent basis by 1 January 2022, and to prefer newly qualified educators for appointment, particularly Funza Lushaka bursary graduates.
17. A school governing body (SGB) meeting on 16 November 2021 was the platform for discussion on above WCED communication, and a decision was made which resulting in the Applicant on 17 November 2021 being informed that her contract due to terminate on 31 December 2021 will not be renewed or extended.
18. This was a decision based on the content of the WCED communication, and is considered to be in the best interest of the school and learners, and in compliance with the school’s interpretation of an instruction received from the WCED in the abovementioned communication.
19. The witnesses defended the school’s decision to rather appoint someone in the Applicant’s post who can be made permanent. Permanent employment in turn aids in ensuring stability at the school.
20. No expectation was created that the Applicant would remain in her position indefinitely. Her appointment always had a start and an end date. The Applicant by her own admission assumed that her contract will not be terminated as she “brought value to the school”. No evidence corroborated the claim of an expectation of permanency created.
21. It is common cause that the Applicant does not qualify to be converted to permanent appointment, and alternative means to make the Applicant permanent may have been explored, but the WCED’s focus on the conversion project necessitated a decision to terminate the Applicant’s contract and source a candidate that is indeed eligible for conversion.
22. The Applicant received more than 4 weeks’ notice of termination of the fixed term contract, in excess of BCEA requirements.
23. It must be borne in mind that an application for a post in the vacancy list in any event must still be subjected to consideration and, as far as possible, adherence to the preference list in line with Collective Agreement 4 of 2018, which includes preference of Funza Lushaka bursary holders.

Applicant’s Evidence
24. The Applicant Ms Cloete’s dispute gyrates on her claim that she had a reasonable expectation that her contract would be renewed, and/or that she would remain in the WCED’s employ at Montana Primary School in 2022.
25. This expectation originates reasonably from her having served the WCED at Montana Primary School in her vacant and substantive post already for 5 years at the end of 2022, that the Respondent had during the 5 years consistently and uninterruptedly renewed her contract, that the position in fact was still going to be available into 2022, that her performance in the position had been well above average, and that she was willing, able and qualified to continue to fulfil the position’s contractual obligations.
26. Already in 2019 the Applicant applied for permanent appointment into her position when it had been advertised as a vacant substantive post. She had made this application based on a letter signed by the Head of Education on 28 August 2017, stating she has approval to return to the teaching profession on a permanent basis if found to be the most suitable candidate through the vacancy list – this letter came after she had previously left the service on ill-health retirement. However, due to the school having neglected sending her documents on to the WCED, she could not be considered for permanent appointment into her position, even though she was the only candidate nominated. The Applicant party contends this was either indicative of incompetence of the school principal and/or the SGB, or their ignorance of the policies prescribed, or of a personal vendetta against her. In any event it was the fault of the school that she could not be appointed.
27. The Applicant was informed on 17 November 2021 that her contract due to terminate on 31 December 2021 will not be renewed or extended, and no reasons for this were provided to her. She raised a grievance, which bore no fruit due to her termination shortly thereafter on 31 December 2021, without a grievance hearing having been convened. Whence she referred an unfair dismissal dispute in terms of her objections to the SGB’s decision to not recommend the renewal of her contract, in favour of re-advertising it for 2022.
28. The Applicant was severely prejudiced by the school’s actions and negligence – both in 2019 and at the end of 2021 – ultimately causing the unfair termination of her employment.
29. The school had a duty to seek assistance on the correct interpretation of the communication from the SGB, and consider properly the right to job security of the Applicant, but chose not to. Rather it incorrectly interpreted and selectively applied the instructions to effect the termination of the Applicant’s employment.

 
ANALYSIS OF EVIDENCE AND ARGUMENT
30. I have considered all the evidence and argument lead by the parties in coming to my decision on this matter.
31. Although the Applicant does not qualify to be converted to permanent appointment – admittedly this from both the Applicant and Respondent party – it did become apparent during the arbitration that there were other means for the her to have been made permanent at the end of 2021.
32. The primary point of departure in this dispute is whether there was – both subjectively and objectively – a reasonable expectation of her contract being renewed to allow her to be still employed when the position is advertised .
33. The contention of the Applicant party is that the alternative avenues open to the school to accommodate Ms Cloete – to allow her to stay on where she had served for 5 years, and wished to remain serving – was not explored – much less was she consulted in the process that severely affected her.
34. If due thought and consideration had been afforded the Applicant’s job security, it would have been recognised already in 2019 that the Applicant had duly applied to be appointed permanently into her position, but due to the school not providing all relevant documentation together with their recommendation of her for the position she was occupying, the position was removed from the vacancy roll without the Applicant being appointed, although she had then been the only candidate recommended by the SGB.
35. This already severely prejudiced the Applicant. To be fair, she should in 2021 have been excluded from the group of educators on contract earmarked for non-renewal of their contracts, and favoured by the school to remain in her position on one last fixed term contract, in light of the prejudicial treatment she had been subjected to in 2019. The school would have recognised that not all contract staff need to be removed, right there and then, if they cannot be converted or made permanent.
36. There was also the option of the post she was contracted in being advertised in the next vacancy list – this time with the school not defaulting on its duty to provide all required documents in terms of Ms Cloete’s application – with its recommendation to the WCED. However, at the time (December 2021) there was at the time no knowledge yet if, or whether the position would be included in the vacancy list, nor when exactly that would be.
37. Based on the prospect of the new vacancy list coming out somewhere down the line in 2022, on which the Applicant’s position may then be listed whilst her still filling it. If her contract had been one last time renewed, and she’d been invited to apply as the 5 year-acting candidate, she would have been automatically shortlisted for interview. If not for her still occupying the position, my understanding is that she will have to apply as an ‘outside candidate’, and not be automatically shortlisted.
38. If not in terms of rectifying the previous unfair prejudice she had suffered, then for the sake of stability in the school brought on by keeping the same teacher in the same position, and in terms of her long-term satisfying performance in that position for 5 years.
39. Contrary to the above solution however the school opted to terminate the Applicant – to remove her from the school altogether. This was unnecessary and unfair to Ms Cloete, and from the testimony lead by both parties I clearly see this was effected by the school who wanted to open up a position for Mr Schowl and replace Ms Cloete with another favoured educator – an internal transfer.
40. Proper records should also have been kept of the events leading up to the decision to dismiss the Applicant. In light of the SGB meeting minutes being both incomplete and incorrect, it remains to be seen whether the decision was properly conducted in light of the many discrepancies revealed, with no clear indication why the alternative avenues were turned down. This is unfair and not indicative of appropriately transparent recruitment practices among the school’s decision-makers – the school management team (SMT) and SGB.
41. The school acted unfairly in dismissing the Applicant, in that the Applicant had a reasonable expectation to have her contract renewed once more, in light of the position not yet having been advertised again in the vacancy list. This in terms of the fact that Ms Cloete –
41.1. had for 5 years had her contract repeatedly and without interruption in service continuously renewed;
41.2. had received the school’s recommendation in her application in 2019 for the permanent post advertised for her position;
41.3. had conducted herself appropriately in her position, and was able, qualified and willing to stay on.
42. In terms of the conversion policy also, the school unjustly took it upon itself to juggle around educators in positions as it suits them – not at all indicative of promoting stability in the school. The school did not have the authority to take this decision upon themselves. I recognise the Applicant party’s discontent with schools taking decisions at their lower level which is not theirs to take, ultra vires as the DOE is the true employer with whom the decision and powers lie.
43. At the very least the Applicant should have been consulted prior to the decision being made, to allow her to contribute a suggestion that she be once more renewed to allow her to remain until her position is again advertised in the bulletin.

AWARD
44. The Applicant, Ms Karin Joy Cloete, was unfairly dismissed by the Respondent, the Western Cape Department of Education.
45. The Respondent must pay the Applicant the salaries she would have earned between 1 January 2022 to 14 March 2022, had she not been unfairly dismissed on 31 December 2021. This constitutes 2½ months’ (two and a half) salaries.
46. The amount due is calculated as follows:
R 25,520.50 X 2.5 months = R 63,801.25
47. The Department of Education of the Western Cape must pay Ms Karin Joy Cloete two and a half months’ salary in compensation, amounting to R 63,801.25, by no later than 30 November 2022.


Commissioner Sally-Jean Pabst
ELRC Arbitrator