ELRC519-22/23 EC

Case Number: ELRC519-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 31-01-2023

In the ARBITRATION between

CWENGA MKONO


(Applicant)


And


DEPARTMENT OF HIGHER EDUCATION – EAST CAPE MIDLANDS TVET COLLEGE


(Respondent)


DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing virtually on the 13th of December 2022 & 23rd of January 2023 before Commissioner M. Mbuli.

2. The applicant Mr. Cwenga Mkono attended the hearing and was represented by his legal representative Mr. Nompandana and the respondent, the Department of Higher Education – East Cape Midlands TVET College was also present at the hearing and was represented by Adv. Mali an official of the respondent.

3. The matter was finalized on the 23rd of January 2023 and the parties agreed to file their closing arguments not later than the 30th of January 2023.

ISSUE TO BE DECIDED

4. I am required to determine whether or not the respondent created a reasonable expectation of renewal of the applicants fixed term contract of employment on the same or similar terms as contemplated by section 186 (1) (b) of the Labour Relations Act No 66 of 1995, as amended.

BACKGROUND TO THE ISSUE

5. The applicant was employed by the respondent as a Lecturer on fixed term contracts from 15th October 2019 – 31st December 2019, 27th January 2020 – 31st December 2020 and 25th January 2021 – 31st December 2021.

6. The applicant’s last contract was extended by the accounting officer to expire on the 31st of December 2021 and this is the termination of contract that is an issue and the subject of this hearing.

7. The applicant claim is based on section 186 (1) (b) of the Labour Relations Act 66 of 1995 as amended in 2015 in that the applicant believes that the employer allegedly created a reasonable expectation of renewal of his contract. The applicant disputes that his contract was terminated on the expiry date since he was notified of termination on the 25th of January 2022.

8. The applicant then referred a dispute to the ELRC alleging that the respondent has unfairly terminated his contract because a legitimate expectation of renewal was created by the respondent.

SURVEY OF EVIDENCE

9. The applicant’s representative called the applicant Mr. Cwenga Mkono who testified that he started working for the respondent on a fixed term contract commencing on the 15th of October 2019 as a Lecturer. The first contract was from the 15th October 2019 – 31st December 2019, extended from the 27th January 2020 – 31st December 2020 and further extended from the 25th January 2021 – 31st December 2021.

10. As indicated above his last contract 25th January 2021 – 31st December 2021 was not renewed and at the time of the termination of his contract he earned a salary of R380 038, 00 and that his contracts have always been renewed from 2019 to December 2021.

11. He stated that he was appointed on a vacant funded post and was not a substitute and confirmed that when the previous contracts came to an end on the 31st of December of the year he was not given notice of termination nor renewal but that would be processed and put to his attention towards the end of January the following year.

12. He confirmed that he would then get his renewal contract around the 25th of January of the relevant year and the 1st 2 were renewed like that and that the last one was terminated on the 25th of January 2022 for the one that expired on the 31st of December 2021.

13. He stated that in the first 2 contracts he would therefore be automatically employed and that because the was no termination of contract notice issued and that his contracts have always been renewed he legitimately expected that even the last one that started on the 25th of January 2021 to the 31st of December 2021 was going to be renewed.

14. He confirmed at cross examination that he applied for a substitute post and that he was called to fill in the vacancy without following the recruitment process of the respondent and signed the contracts with the HR department.

15. He stated that the person he was substituting was sick and he understood the terms and conditions of his contract and Mr. Mahamba explained that contract to him. He however disputed that the issue that the renewal is based or dependent on projections of learners was discussed with him.

16. He stated that he reported for duty in January because he was not notified of the termination of his contract at least a month before its expiry.

17. The applicant closed his case and the respondent opened its case by calling Mr. Abonga Mahamba who testified that he has worked for the respondent as a Chief Administrative Clerk since 1st of April 2014 and his main responsibilities include contracts management, appointments recruitment and other Human Resources related work.

18. He confirmed that he can recall Mr. Mkono’s appointment as a Lecturer and that he was employed as a substitute Lecturer from 15th October 2019 to 31st December 2021 on fixed term contract that had been renewed on the past 2 occasions.

19. He stated that the applicant was appointed during Covid 19 time and this was an emergency appointment and did not go through a recruitment process, he was an additional lecturer that was recommended after the cvs were drawn from the HR department.

20. The request to appoint him was approved by Deputy Principal Academics, went to Deputy Principal Registration, and Deputy Principal Finance – CFO and was approved by the Principal and captured on the data base.

21. He made a point that the renewal or termination of the contracts of fixed term contract employees like the applicant cannot be processed and confirmed during the previous financial year because it is dependent on the enrolment or intake of students which happens in January and that the applicant’s previous contracts have always been confirmed or processed or renewed in January after the expiry date.

22. He stated that for this reason the applicant could not be notified of the termination of his contract a month before termination because the principal wouldn’t have processed it, approved or terminated without confirming the intake of students and what was going to happen in the current academic year. He stated that the Principal has always approved the requests for renewal late January and it is only after then that HR can then prepare contracts for appointments / renewals.

23. He stated that for this reason it is practically impossible for the fixed term Lecturer posts to be renewed and confirmed 30 days before the expiry date as that has to be done before final registration. He stated that the applicant has always signed renewal of his contract in January without any problem and it is only when the contract was not renewed that the applicant had a problem with the renewal or termination at this time.

24. The 2nd witness of the respondent was Mr. Ian Mapaling who testified he is employed by the respondent as a Campus Manager for Park Avenue Campus from April 2018 – July 2022. He confirmed that he knows the applicant because he was employed as a Lecturer at his Campus as a substitute from the 15th of October 2019 until 31st December 2019 to teach Maths.

25. Later his contract was renewed because they needed additional staff because it was Covid 19 time and stated that he informed the fixed term contract staff including the applicant that there was no guarantee that they will be employed or that their contracts will be renewed.

26. He stated that the applicant has always known that the issue of renewals can only be finalized in January at the beginning of the academic year in January once the intake of the students has been confirmed and that it was impossible to confirm that the previous year and as such impractical to give the fixed term contract lecturers 30 days’ notice.

27. He stated that the applicant just like in the previous years did not report for duty in January except when he came to enquire about renewal of his contract because he knew that renewals and terminations are confirmed towards the end of January.

28. He stated that in 2022 they had their students in one place because the Covid 19 regulations had been eased and had not required to have more staff, which affected a number of fixed term contracts for the employees employed on a fixed term contract. He stated that it was not unfair to reduce staff because the operational requirements dictated that they go back to normal and did not need the additional lecturers.

ANALYSIS OF EVIDENCE AND ARGUMENT

29. Section 186 (1) (b) of the Labour Relations Act 66 of 1995 as amended provides that:
- Dismissal also means that – an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favorable terms, or did not renew it.

30. This means that the act recognizes this type of conduct as a dismissal in addition to the other reasons for the termination of the employee’s services by the employer, e.g. the conduct of the employee, incapacity of the employee and the employer’s operational requirements.

31. In this dispute the applicant’s services were terminated by the employer about 25 days after the expiry date of the fixed term contract and that the applicant was not given notice of termination of his fixed term contract. The applicant argued that the employer had created a reasonable expectation of renewal of his contract and further that the employer therefore had unfairly dismissed him and or his services were unfairly terminated.

32. The applicant’s representative led evidence of the applicant who testified that the employer had created legitimate expectation of renewal of his contract of employment because of the 2 issues mentioned above, and that evidence is summarized above, and is based 2 points, that the employer has previously renewed the applicant’s contracts and that the employer did not give him adequate notice of termination of contract.

33. On the 1st point raised by the applicant the claim of legitimate expectation arises from the fact that the applicant’s contract has always been renewed for about 2 times and that the last contract continued beyond expiry and he was advised later on the 25th of January 2022.

34. There are no words that have been used by the respondent to demonstrate that the intention of the respondent when the contract was entered into was to renew the contracts and the intention when interpreted is that the respondent did not intend to automatically renew the applicant’s contract and this cannot be viewed as creating a legitimate expectation of renewal.

35. The previous contracts of the applicant did not contain the words – renewable basis and again this demonstrates that the intention of the respondent in so far as the previous contracts are concerned was not to renew the contract. The applicant cannot succeed in claiming a legitimate expectation of contract simply on the basis that his contract has been renewed twice before.

36. The 2nd point raised by the applicant is that the employer has not given him adequate notice of termination of his contract and his contract proceeded beyond expiry of the contract as a result the respondent intended to renew his contract and that later that contract was not extended.

37. It is not disputed that the applicant was not given notice of termination at the time the contract was about to expire, but it is in dispute that the applicant continued to render service to the respondent beyond expiry of contract.

38. The 2 respondent’s witnesses testified that the applicant was appointed during Covid 19 time and this was an emergency appointment and did not go through a recruitment process, he was an additional lecturer that was recommended after the cvs were drawn from the HR department.

39. The request to appoint him was approved by Deputy Principal Academics, went to Deputy Principal Registration, and Deputy Principal Finance – CFO and was approved by the Principal and captured on the data base.

40. I accept the undisputed testimony of these witness that the renewal or termination of the contracts of fixed term contract employees like the applicant cannot be processed and confirmed during the previous financial year because it is dependent on the enrolment or intake of students which happens in January and that the applicants previous contracts have always been confirmed or processed or renewed in January after the expiry date.

41. These witnesses further explained that the applicant could not be notified of the termination of his contract a month before termination because the principal wouldn’t have processed it, approved or terminated without confirming the intake of students and what was going to happen in the current academic year. It is also not in dispute that the Principal has always approved the requests for renewal late January and it is only after then that HR can then prepare contracts for appointments / renewals.

42. I agree with the respondent’s witnesses that it is practically impossible for the fixed term Lecturer posts to be renewed and confirmed 30 days before the expiry date as that has to be done before registration. The 2nd witness of the respondent stated that the applicant was required because they needed additional staff because it was Covid 19 time and stated that he informed the fixed term contract staff including the applicant that there was no guarantee that they will be employed or that their contracts will be renewed.

43. He stated that the applicant has always known that the issue of renewals can only be finalized in January at the beginning of the academic year in January once the intake of the students has been confirmed and that it was impossible to confirm that the previous year and as such impractical to give the fixed term contract lecturers 30 days’ notice. I accept this undisputed evidence.

44. The applicant just like in the previous years did not report for duty in January except when he came to enquire about renewal of his contract because he knew that renewals and terminations are confirmed towards the end of January. It makes sense that the respondent in 2022 had their students in one place because the Covid 19 regulations had been eased and not required to have more staff which affected a number of fixed term contracts for the employees employed on a fixed term contract. It was therefore not unfair to reduce staff because the operational requirements dictated that they go back to normal and did not need the additional lecturers.

45. All this confirms that the respondent has not created a legitimate expectation for the renewal of the applicant’s contract. I do not have any reason to accept the version of the applicant and disbelieve the clear, coherent and corroborative evidence of the respondent.

46. In South African Veterinary Council v/s Szymanski (2003) (4) SA 42 (SCA) the principle to be extracted is that the representation underlying the expectation must be clear, unambiguous and not subject to qualification, expectation must be reasonable, the representation must be one that it was competent for the decision maker to make without which reliance cannot be legitimate and that representation must have been induced by the decision maker.

47. The applicants representative has also referred me to the decision in Dierks v/s University of South Africa (1998) ZALC J399/98 where the Labour Court indicated the factors that must be considered in determining whether an employee’s claim for unfair dismissal based on legitimate expectation of renewal of a fixed term contract and these factors are:

-The significance or otherwise of any contractual stipulation.
-The undertakings by the employer.
-The practice of the employer in renewal of employment.
-The availability of work.
-The purpose of concluding the fixed-term contract.
-Failure to give reasonable notice and
-The nature of the employers business.

48. These factors are interlinked and decision whether the employer has created a legitimate expectation of renewal of contract should be taken after careful consideration of all of them. When I look at the version of the respondent supported by the respondent’s witnesses I conclude that the employer has not created legitimate expectation of renewal of the applicants fixed term contract.

49. In this case the representation made by the respondent as argued above suggest that the applicant’s contract was terminated fairly because the respondent has not created a legitimate expectation of the renewal of the applicants contract. The respondent’s representative has argued that the non – renewal of the applicants contract was based on the operational requirements of the employer.

50. There was no satisfactory evidence to support the proposition that the applicant was promised renewal of his contract and the applicant’s argument cannot be sustained, the respondent also presented evidence demonstrating that the other previous contracts of employment of the applicant were renewed because there was a valid reason and need to do so. The respondent’s argument about operational requirements as the reason for non - renewal of the applicant’s contract is accepted.

51. In King Sabata Dalindyebo Municipality v/s CCMA & others (2005) 26 ILJ 474 (LC) the court established a principle that if no job was available then no job would have been allocated. As indicated above and in the overwhelming evidence of the respondent not disputed by the applicant it is clear that there was no job for the applicant to do and it therefore could not be allocated to him.

52. The reality of the situation is that fixed term employment contracts are valid contracts and in order for the contract to be renewed under section 186 (1) (b) the applicants must prove that the employer has created a reasonable expectation of renewal of their fixed term contract.

53. The applicant has failed to discharge the onus to prove that the termination of his contract was unfair and constituted an unfair dismissal and that the respondent managed to rebut the applicant’s claim of legitimate expectation of renewal of contract.

54. In the circumstances I make the following award.

AWARD

55. The respondent, the Department of Higher Education – East Cape Midlands College, did not create any legitimate expectation of renewal of the applicant’s, Mr Cwenga Mkono’s, contract of employment and the termination of the applicant’s contract of employment therefore did not constitute an unfair dismissal.

56. The applicant’s application is hereby dismissed.

57. I make no order as to costs.


Signature:

Commissioner: Malusi Mbuli