ELRC886-21/22LP

ARBITRATION AWARD

ARBITRATION DATE: 09 March 2023

CASE REFERENCE: ELRC886-21/22LP

IN THE MATTER BETWEEN:

EMPLOYEE: NISHA BINU

And

EMPLOYER: DEPARTMENT OF EDUCATION-LIMPOPO

1. DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged unfair dismissal dispute, referred in terms of Section 186(1)(b)(ii) of the Labour Relations Act 66 of 1995, as amended was held at The Department of Education-Limpopo, Cnr Hospital and Hans Van Rensburg Street, Polokwane on 28 February 2023.
1.2. Both parties attended the proceedings. The employee was represented by Rika van Staden, an attorney from Stemmett & Osman Inc, while the employer was represented by Mr N.E Nyathela.
1.3. Prior to the commencement of arbitration, the parties submitted signed Pre-Arbitration minutes.
1.4. The hearing was held in English and was digitally recorded.
2. ISSUES TO BE DECIDED
2.1. Whether or not failure by the employer to retain the employee in employment on an indefinite basis or on the same or similar terms as the fixed term contract amounted to unfair dismissal in terms of section 186(1)(b)(ii).
2.2. If the dismissal was substantively unfair, I must determine appropriate relief in terms of Section 193 of the Labour Relations Act 66 of 1995.
3. BACKGROUND TO THE ISSUES
3.1. The employee was employed by the employer as a temporary educator on a series of fixed term contracts which were renewed annually since 01 January 2011. Her last contract of employment was from 01 January 2021 until 31 December 2021. At the time of the termination on 31 December 2021, the employee was earning R25 038.50 per month.
3.2. Prior to the commencement of the arbitration, the employer submitted a bundle of documents marked “A”, while the employee submitted a bundle of documents marked “B”.
3.3. The employee closed her case after leading her own evidence, while the employer planned to call one witness but decided to close its case without leading any evidence or calling the witness.
3.4. The employee submitted written closing arguments, while the employer’s written closing arguments were never received.

4. SUMMARY OF THE EVIDENCE AND ARGUMENTS
4.1. Following is a summary of only the relevant evidence submitted by the witness under oath and which was taken into account in order to arrive at a decision in the matter.
5. THE EMPLOYER’S CASE
5.1. The employee, Nisha Binu, testified that she had been employed by the employer since for the last 14 years. She has been a permanent residence of the Republic of South Africa since 01 July 2014. Her last position that she occupied was that of post level 1 educator and she was teaching Physical Science and Mathematics. She holds a Masters in Physical Science and she is also registered with South Africa Council for Educators. Section 6B of the Employment of Educators Act provides that the Head of Department may, after consultation with the governing body of a public school, convert the temporary appointment of an educator appointed to a post on the educator establishment of the public school into a permanent appointment in the post without the recommendation of the governing body. The school and the governing body tried several to have appointed permanently but the Department always rejected the recommendation. The collective agreement also provides that a temporary educator may only be appointed permanently to funded, substantive and vacant level 1 post at a public school which is on the approval educator establishment if the temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person. The collective agreement further provides that temporary educators whose contracts have not expired as at the date of implementation of this agreement shall be considered for conversion to permanent educators in terms of this agreement. Her fixed term contract was renewed fourteen times. She was also a member of Government Employees Pension Fund. On 15 September 2021, she lodged a grievance requesting that the Department change her status of temporary educator to that of a permanent educator but the Department kept on promising to assist her. She had a reasonable expectation that she would be retained on an indefinite basis or on the same or similar terms as her previous fixed term contracts.
5.2. Under cross-examination, Nisha Binu, testified that the last fixed term contract that she signed on 02 February 2021, was for post level 1 educator and post number 30. When she signed her last contract, she was not aware that the position was a promotional post (Deputy Principal) and that a temporary educator cannot be automatically absorbed to the position without the position being advertised and candidates interviewed. She had received the appointment letter that stated that her application for post number 30 has been successful and she has accepted the offer. As post level 1 educator, she does not qualify to be promoted to the position of a deputy principal. The appointment letter also stated that the nature of appointment was temporary and it will run for 12 months or when the post is filled permanently (whichever comes first). On 08 November 2021, she personally never received the circular which was addressed to all principals and all educators from the head of the department but her school principal only informed her about the said circular during December 2021. If the information that her position was post number 30 and the circular from the head of department was brought to her attention, she could not have expected her fixed term contract to be renewed. Government Employees Pension Fund is a different department that manages pension funds of all government employees. It is correct that the non-renewal of post number 30 has nothing to do with her citizenship status. She had a reasonable expectation that her fixed term contract will be renewed on a same or similar terms or retained on an indefinite basis because her contract was renewed several times.
THE EMPLOYEE’S CASE
6.1. The employer did not call any witness and decided to close its case without leading any evidence.
7. ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the employer to prove on balance of probabilities that the employee’s dismissal was substantively fair.
7.2. In University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) the Court held that the test for reasonable expectation was two-fold. They first dealt with whether the employee actually expected the contract to be renewed and the second, whether the expectation was reasonable.
7.3. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354 (handed down on 9 September 2016); the Court held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including or otherwise of the contractual stipulation. The Court identified a number of factors which may influence such a finding, namely:
a) agreements
b) undertakings by the employer
c) custom or practice in regard to renewal
d) the availability of the post
e) the purpose or reason for conclusion of the fixed term contract
f) inconsistent conduct
g) failure to give reasonable notice
h) the nature of the business (the list is not necessarily exhaustive)
7.4. In this matter, it is common cause that the employee’s fixed term contract was renewed annually since 01 January 2011. This continuous renewal of the fixed term contracts might have created a reasonable expectation on the part of the employee that her contract would be renewed on an indefinite basis or on the same or similar terms as the fixed term contract after 31 December 2021. I therefore accept the employee’s submission that she expected her contract to be renewed on the basis that it was renewed several times since 01 January 2011.
7.5 The second part of the test is to determine whether the expectation was reasonable. For the employee to rely on the school governing body and the principal, was very unfortunate since the two have no final authority/powers to appoint educators but they can only recommend. Section 6B of the Employment of Educators Act provides that the Head of Department may, after consultation with the governing body of a public school, convert the temporary appointment of an educator appointed to a post on the educator establishment of the public school into a permanent appointment in that post without the recommendation of the governing body. Therefore, the Act gives the total powers/discretion to the Head of Department to appoint the temporary educator into a permanent position and not the governing body of the principal. It was never submitted that there was an undertaking from the Head of Department that the employee’s contract would be renewed on an indefinite basis or on the same or similar terms as the previous fixed terms contracts after 31 December 2021.
7.6. The final contract that was signed by the employee clearly indicate that the position number is 30. Although the employee alleged that she was not aware that position number 30 meant that the position was a promotion position, nothing was submitted by her to rebut the employer’s version in this regard. As an educator with a Masters’ degree, she could have at least took upon herself to interrogate the contract before signing it. The employee conceded during cross-examination that as a post level 1 educator, she did not qualify to be promoted to the position of a deputy principal despite meeting all the requirements of being appointed on a permanent position.
7.7. The circular from the Head of Department that was addressed to all principals and all educators communicated the non-renewal of contracts of employment for temporary educators appointed in substantive and substitute (promotion) positions. The circular further provided the reason for the non-renewal as being that the Department has advertised the promotion posts on 05 September 2021 and the post will be filled with effect from 01 January 2021. It is clear from the circular that the position that the employee occupied was no longer available. The circular was signed off by the Head of Department on 08 November 2021, which was a reasonable notice under the circumstances. Despite that the employee alleged that she only became aware of the circular via the principal during December 2021, it was never submitted when did the principal received the notice. The reason for the non-renewal of the employee’s fixed term contract was fair under the circumstances.
7.8. Finally, the employee conceded during cross-examination that should she had known before/after signing the contract what position number 30 meant and that the Head of Department circular was brought to her attention well in advance, she could not have reasonable expected her contract to be renewed.
7.9. Having analysed the evidence submitted, I have come to the conclusion that the employer has proved on balance of probabilities that the employee’s dismissal was substantively fair.
8. Award
8.1. The dismissal of the employee, Nisha Binu, by the employer, Department of Education-Limpopo, was substantively fair.
8.2. The employee’s application is hereby dismissed.


NICHOLUS MASINGITA SONO
COMMISSIONER
08 March 2023