ELRC816-22/23NC

Panelist: Thabo Maruping
Case No.: ELRC816-22/23NC
Date of Award: 10 AUGUST 2023

In the ARBITRATION between:

O.K NWOSU
(Union / Applicant)

and

Department of Education NC

(Respondent)

Applicant’s representative: Mr O.K NWOSU
Applicant’s address:

Telephone:
Telefax:
Email

Respondent’s representative: Mr. Tebogo Obusitse
Respondent’s address: Department of Education: Northern Cape
KIMBERLEY
83001
Telephone: 083 248 0801
Telefax:
Email

DETAILS OF HEARING AND REPRESENTATION
1. This matter was referred for arbitration to the Education Labour Relations Council (ELRC) in terms of section 191(5)(iii) of the Labour Relations Act 66 of 1995 (“the LRA”) of an alleged unfair dismissal on 31 December 2022.

2. The matter was set down, 05 April 2023. The matter was part heard and concluded on 31 July 2023 at Department of Education Northern Cape (DOE NC), Kimberley District office.

3. The Applicant, Mr. O.K Nwosu, represented himself. The Respondent was represented by Mr. T Obusitse, a Labour Relations within the Directorate of the Respondent.

4. A bundle of document named (AR- Applicant/Respondent) was handed in as evidence. Pre –arb minutes were concluded on 05 April 2023.

5. It was agreed that the written submission of closing arguments date will be done by not later than 03 August 2023..
6. The hearing was digitally recorded.

BACKGROUND
7. The applicant was employed on substantive Post Level1, a Teacher at, Jan Kempdorp Primary School.

8. The applicant had indicated that he was paid, R29 414.00 per month.

9. The applicant is a foreign national with work permit which had an expiry date, 12 August 2022 (pg27).

10. He was employed on a one year fixed term contract from 04 April 2023 until 31 December 2023, and alleges he was unfairly dismissed.

11. Ms. E. Van Wyk sat in the last day of the proceedings, 31 July 2023. She’s an attorney for Engelsman Magabane Incorporated. I allowed her to observe, as there was an incident on 11 May 2023 where the applicant acted out of character and threatening myself and the respondent’s representative. Her presence to the proceedings was allowed to manage the temper of the applicant and the hearing was concluded 31 July 2023.

ISSUED TO BE DECIDED:
12. I must decide whether the alleged unfair dismissal of the applicant was substantively unfair. In doing so, I must determine whether the respondent created a legitimate or reasonable expectation for permanent appointment. The procedure was not challenged.


SURVEY OF EVIDENCE
Respondent’s Case
13. Mr Tebogo Obusitse testified under oath that the applicant was not unfairly dismissed. He stated that the applicant was employed on a fixed term contract (FTC) which came to a natural end.

14. He testified that the period of appointment of the applicant was from 14 April 2022 until 31 December 2022.

15. He further testified that the applicant was appointed in a vacant substantive PL 1 educator’s post of an educator, Mr. O J Marekwa, (PL3 post) who was dismissed.

16. He indicated that the applicant’s contract ended on 31 December 2022, and he was served with a notice that the fixed term contract was coming to an end. (bundle AR- Pg 36)

17. He argued that the applicant had an asylum seeker permit, and could not be converted into a permanent post. He referred us to the collective agreement no 4 of 2018 of the ELRC:

 4.2 Eligibility for Conversion:
4.2.1 a temporary educator may only be appointed permanently to a funded, substantive post and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended and section 10 of the public service Act, 1994 (Proclamation No.103 of 1994), as amended.
18. He averred that the kind of appointment would be a contravention with the resolution 4 of 2018 ELRC.

19. He argued that the applicant was promised a permanent position, and the promise had a condition. That being upon him acquiring permanent residency, he be offered a permanent position.

20. He further confirmed that the applicant’s fixed term contracts were renewed a few times, but this one of 2022 was a vacant substantive post. He alluded that this post was legible for conversion.

21. He furthermore stated that, the letters from the Head of Department and the school were in support that the applicant be granted permanent residency permit, so he could be offered permanent post by the department..

22. He respondent further stated that if the department was in possession of the applicant’s permanent resident permit they would undoubtably employ him.

23. Under cross examination the respondent stated that the applicant was on a fixed term contract that came to an end he and was given notice that the contract was ending.

24. He averred that this was no dismissal and that the contract came to its natural end. He agreed that there was a promise to offer the applicant permanent employment since 2018. He argued that there was a condition that prohibited the conversion to be enforced. (bundle AR pg )

25. He further stated that the reason for the notice of end of FTC was issued, was because the contract was not legible to be converted into the permanent position.

26. The witness stated that even though an expectation was created, it had a condition that the applicant would be made permanent upon receiving of his permanent residency. He referred to para 4, (Page8) reads as follows “ I hereby support the school in their endeavor to assist Mr. Nwosu in acquiring the necessary documents which will assist him to obtain permanent residency and ultimately a permanent teaching post at Jan Kempdorp Primary School”.

27. Second witness Ms. Anita Jansen testified under oath stated that she is employed as Deputy Director Human Resources Manager. She testified that the applicant had a FTC contract that started on 12 April 2022 until 31 December 2022.

28. She stated that for school to employ educators a staff establishment is determined by the learner ratio and curriculum needs.

29. She further stated that the FTC for educators are recommended by the school governing body (SGB) and it is done annually.

30. She averred that after the recommendations are done, the names of the recommended candidates are send to the Human Resources (HR) department or verification. She testified that the duty of the HR would be to verify the candidates and check if they meet the post profile.

31. She stated that when approval is done, the educators are offered FTC employment contracts for 12 months and the vacant substantive PL1 post are converted to permanent.

32. She testified that upon the contract coming to an end, the persal system automatically kicks off the employee from persal.

33. She stated that this type termination is not deemed a dismissal, but the FTC expired.

34. She further stated that the period of the appointment is indicated on the NCK1 and NCK2 forms of the appointment.

35. She argued that it would have been a serious contravention of the law to convert the applicant with temporary work permit into a permanent position. She stated that the legibility of conversion of a vacant substantive PL1 post could not be done. The collective agreement no 4 of 2018 of the ELRC, 4.2 Eligibility for Conversion:

4.2.1 a temporary educator may only be appointed permanently to a funded substantive post and vacant level 1 post at a public school which is on he approved educator establishment if:
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is fit and proper person as contemplated in the immigration Act 13 of 2002, as amended and section 10 of the public service Act, 1994 (Proclamation No.103 of 1994), as amended. (Bundle AR – Pg55)
36. Under cross examination, the witness stated that the applicant was also issued with the appointment letter, similarly to the one in (Bundle A-R, Pg 3).

37. She averred that although section 3.2 of the collective agreement 4 of 2018, Section 186(b) of the LRA defines a dismissal to include the situation where an employee employed in terms of a fixed term contract of employment reasonably expected the employer:
3.2.1 to renew a fixed term contract of the employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.

38. She argued that the applicant situation was not the same, considering that the respondent supported his application for permanent residency permit with Department Home Affairs (DHA). She further alluded that if the applicant was issued with the permanent residency permit, the respondent would have made him permanent.

39. She testified that notwithstanding the fact that the applicant occupied a PL1 vacant substantive post, the applicant was not legible for conversion. Such positions are legible for conversion if vacant and funded.

40. She averred that the approval of the permanent position was reliant upon approval for permanent resident permit granted by DHA. Para 4, (Bundle A-R Pg11)

41. She stated that letters of support and recommendation in support of the application for permanent resident permit might have created an expectation, but the condition to the appointment hindered the appointment to be effected.

42. She testified that the provisions of the employment contract (Bundle A-R pg 4) are drafted the same and referred to paragraph 2, last sentence that reads as follows “ the employee warrants that he/she has no expectations that upon the expiry of this agreement he/she will be permanently appointed in any post or have this contract extended or renewed”.

43. She confirmed that the notice issued for end of contract was clear that the applicant FTC was coming to an end on 31 December 2022. She referred to paragraph 2 page 36, read as follows: “please consider this date 31 December 2022 as your last working day with Northern Cape Department of Education” and said that statement was explicit.

44. She testified that letter PGMO Attorneys Inc, (Bundle A-R, Pg 39) pertaining to the high court order dated 11 December 2022, interdicting the respondents, and their employees and/or delegees (the DHA) from deporting the 1st respondent or causing the 1st applicant to be deported. Directing the DHA to permit the 1st Applicant to remain in the republic, subject to reasonable terms and conditions, as prescribed by the 1st respondent. She stated that the applicant must consult legal services for response on the contents of the letter.

45. In her testimony the respondent testified that letter from Mr O.D Hammer the principal, Mr B Jammer the circuit manager, both were in support on the initial appointment of the applicant. The witness testified that the matter in support comes as far as 2018.
46. She stated that this is how long the support from the department for the applicant to be issued with permanent residency permit by the DHA. (Bundle A-R, Pg8 and Pg 9)

Applicant’s Submissions
47. Mr OK Nwosu testified under oath. He testified that he was employed as a fixed term contract, Post Level 1 educator at, Jan Kempdorp Primary school. He stated that he had fixed term contracts renewals from 1 January 2015 until 31 December 2015, until 14 April 2022 until 31 December 2022.

48. The applicant further testified that he was requested to apply for permanent resident, and his application was support by the school, Head of Department DOE NC, citing that he held critical scares skills like Mathematics and Science subjects.

49. The applicant indicated that he was in a substantive level 1 post which he could still be given renewable contract as the school still had the need for his skills.

50. He stated that he was only one given a notice that his contract was ending.

51. He further alluded that the department created a reasonable expectation when the principal, including the circuit manager and HOD (Mr. Monyera,) wrote to DHA in support for him to get his permanent residence permit.

52. He also made a point that he should be reappointed in a FTC and that he never said he wanted permanent position.

53. He further testified that the reasonable expectation by Head of Department Mr. L. Monyera, which made a promise to offer him a permanent job. Paragraph 4, (Page8) reads as follows “ I hereby support the school in their endeavor to assist Mr. Nwosu in acquiring the necessary documents which will assist him to obtain permanent residency and ultimately a permanent teaching post at Jan Kempdorp Primary School”.

54. He argued that the respondent failed to oppose the notice of motion, letter dated, 19 November 2022, (bundle A-R, Pg64).

55. The applicant in his testimony indicated that even though he received a notice that his contract was coming to an end, the letter was not explicit that his contract was ending. He referred to paragraph 2, page 36, read as follows: “please consider this date 31 December 2022 as your last working day with Northern Cape Department of Education”.

56. He argued that he was aggrieved because Mr. T Obusitse asked him to put money in his application for permanent residence permit as they wanted to offer him permanent employment.

57. His last contention was that someone else was appointed in his position he held before he was dismissed.

58. Under cross-examination the witness testified that he was in a fixed term contract with period 14 April 2022 until 31 December 2022.

59. He later testified that he did not know the end date of his contract. He agreed that employment contracts are drafted the same and referred to paragraph 2, where it reads as follows, “the employee warrants that he/she has no expectations that upon the expiry of this agreement he/she will be permanently appointed in any post or have this contract extended or renewed”. (Bundle A-R pg 4)

60. He indicated that an expectation was created for him to be re-employed. Bundle A-R, Pg 54 the resolution 4 of 2018 ELRC:

61. Clasue 3 of the collective agreement states that in any dispute concerning whether an educator had an objectively reasonable expectation as contemplated in section 186(1)(b) of the LRA, a person determining the dispute must take into account all relevant factors including:
3.2 The provisions of the employment contract and any other agreement.

62. He argued that the he relied on the above that his contract was not renewed on same or similar condition or was not renewed.

63. He stated that the principal of the school informed him about the start date of the contract. Furthermore he started earlier on 12 April 2023. He averred that he was given NCK1 and NCK2 forms to complete on 11 April 2022.

64. He confirmed that it was his testimony that his contract was coming to an end but was not aware of the end date.

65. In his testimony he stated that the he received motivation letters in support with his application to DHA, to offer him permanent residence permit, that to him was a promise that he was going to be appointed on a permanent basis.

66. He indicated that one of the letters were from circuit manager requesting the Head of Department to write in support of the application to DHA.

67. It was put to the applicant that in his evidence-in-chief he testified that he had a contract with start date, 14 April 2023 until 31 December 2023, but denied it.

68. Furthermore it was put to him, that he signed pre-arb minutes which concluded that he was employed in a fixed term contract with a start date 14 April 2023 until 31 December 2023.

ANALYSIS OF EVIDENCE AND ARGUMENT

SUBSTANTIVE FAIRNESS OF THE DISMISSAL

69. Section 138(7) of the LRA requires that I submit an arbitration award with brief reasons. I have taken into account all the relevant evidence and arguments, but will only refer to those evidence and arguments necessary to substantiate my award.

70. Section 186(1)(b)(ii) of the LRA, which states:

“(b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer-
…to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.” (my emphasis)

71. The onus is on the Applicant to prove that he had a reasonable expectation, and that he will be retained beyond the end date of the fixed term contract. Based on the evidence led, it was common cause that the Applicant was appointed on a fixed term contract. That he was given a notice acknowledged by the on 3 November 2022, that the contract of employment was ending, 31 December 2022.

72. The period of the fixed term contract was from 12 April 2023 31 December 2023. This evidence was concluded in the pre – arbitration minutes dated, 5 April 2023.

73. Furthermore it was the evidence in chief of the applicant that the start date of the FTC was 4 April 2023 until 31 December 2023. It was further the evidence of the applicant under cross examination that he knew of the start date, but did not know when the contract was ending. He failed to furnish evidence that suggested otherwise. The applicant failed to prove that he was not unaware when his contract was ending.

74. In Mahlamu v CCMA & others (2011) 4 BLLR 381 (LC) the court held that in the case where the end of an agreed fixed term is defined by the occurrence of a particular event, there is no dismissal.

75. The courts adopted the approach in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733(LC) where the court held that the fixed term contract terminates by operation of law. Such termination does not constitute dismissal. The Applicant’s contract does provide for termination by an operation of law. Therefore it does not constitute a dismissal.

76. On the evidence of the notice it was the applicant’s contention that the notice for end of contract, paragraph 2 page 36, read as follows: “please consider this date 31 December 2022 as your last working day with Northern Cape Department of Education”. He argues that the notice is not explicit to say his contract is ending.

77. He further led evidence that he was requested already in 2018 to process the application with DHA to offer him permanent resident work permit. That letter dated 22 August 2018 of recommendation for appointment of employment, and furthermore requesting the provincial office to issue recommendation in support of his application for permanent work permit in South Africa (Pg8, Bundle AR).

78. An additional letter of recommendation in support of the application for seeking permanent resident permit was issued on, 21 August 2018 by Mr. L. Monyera. This letter was in support of the requesting the DHA to offer the applicant permanent resident in South Africa. One of the most important paragraph of the letter was para 4, (Page8) reads as follows “ I hereby support the school in their endeavor to assist Mr. Nwosu in acquiring the necessary documents which will assist him to obtain permanent residency and ultimately a permanent teaching post at Jan Kempdorp Primary School”. The letter is indeed explicit on a condition when the applicant can be offered a permanent teaching post.

79. The applicant’s offer for permanent post by the respondent had a condition. The condition was that the DHA issue him a permanent residence permit. In this instance the law prevents the employer in honoring the promise. I say so, as it is common cause that the employer made a promise on the basis that the DHA grant the applicant a work permit. In the absence of the permit, the expectation is neither legitimate nor reasonable. It is my view that, the respondent intention was pure and fair in retaining the applicant in his employment. Such efforts by the respondent cannot be misconstrued as bad faith.

80. Our Courts have held that the test for a reasonable expectation is two-fold; the first being, whether the employee expected the contract to be renewed; and the second being, whether the expectation was reasonable. See University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), and MEC for the Department of Finance, Eastern Cape v De Milander and others [2011] 9 BLLR 893 (LC).

81. Guided by the resolution 4 of 2018 of the ELRC:

 Eligibility for Conversion:
4.2.1 a temporary educator may only be appointed permanently to a funded, substantive post and vacant level 1 post at a public school which is on he approved educator establishment if:
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is fit and proper person as contemplated in the immigration Act 13 of 2002, as amended and section 10 of the public service Act, 1994 (Proclamation No.103 of 1994), as amended. (Bundle AR – Pg55)

82. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354, it was held that the second part of the test for reasonable expectation is whether the subjective expectation, objectively assessed, is considered reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations.

83. Sections 210 of the LRA resolves any conflicting laws arising out of the LRA and any law, and provides that where a conflict arises between the LRA and any other law, the provisions of the LRA will apply unless the other law expressly amends the LRA.

84. The letter by PGMO Attorneys Inc, (Bundle A-R, Pg 39) pertaining to the high court order dated, 11 December 2022, interdicting the respondents, and their employees and/or delegees (the DHA) from deporting the 1st respondent or causing the 1st applicant to be deported. Directing the DHA to permit the 1st Applicant to remain in the republic, subject to reasonable terms and conditions, as prescribed by the 1st respondent. It is in my view that the interdict was just prohibiting deportation that the applicant not to be deported. That he be treated fairly until he has his matters relating to his employment are concluded.
85. Section 23 of the Constitution of the Republic of South Africa, provides for fair labour practices.

86. The Labour Relations Act no. 66 of 1999 as amended gives effect to the Constitutional imperative of fair labour practices. The imperativeness is further supported by the Employment of Educators Act which gives effect to the terms and conditions of employment.

87. The courts identified a number of factors, which may influence such finding, namely, but not limited to
i. Agreements
ii. Undertaking by the employer
iii. Custom or practice in regard to renewal
iv. Availability of posts
v. The purpose and conclusion of the fixed term contract
vi. Inconsistent conduct
vii. Failure to give reasonable notice
viii. The nature of the business

88. The Applicant has merely relied on the letters in support of his permanent resident permit, issued in 2018, one of letters from the Head of department, stating that the applicant upon being issued with permanent residence permit he will be offered a permanent post by the department. Indeed I agree a promise was made, but the promise was prohibited by law, the condition was upon him being issued with permanent work permit. This renders the expectation unreasonable.

89. He secondly he stated that he was in a FTC that started on 04 April 2022 until 31 December 2022. Furthermore changing his initial submission, stating that he did not know the end date of the FTC. The applicant let not evidence that suggested that his FTC was due to end on a specified project or period.

90. There is no evidence that the respondent acted inconsistently. It was not in dispute that the applicant was aware of notice for termination. The nature of the business of the Respondent is to serve the people of Republic through education system and is not a profit making entity.

91. For the above brief reasons, the application must fail.

Finding

92. Based on the above, the finding is that the Applicant did not have a reasonable expectation that he would be offered permanent employment. Furthermore the PL1 substantive post was legible for conversion into permanent post. The same post that was occupied by the applicant.

Award
93. The Applicant has failed to prove that the respondent created reasonable expectation for him to be made permanent. It is my view that the expectation was created but the expectation was not reasonable or legitimate.

94. The matter is dismissed.

95. No order is made in respect of costs.

Thabo Maruping
ELRC Arbitrator