ELRC107-22/23WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC 107-22/23WC

In the matter between

SAOU obo SONJA SWART Applicant

and

DEPARTMENT OF HIGHER EDUCATION Respondent
AND TRAINING/ NORTHLINK TVET COLLEGE

PANELIST: YOLISA NDZUTA

LAST HEARD: 17th of JULY 2023

DATE OF AWARD: 11th of AUGUST 2023

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(1)(b) - dismissal shall also mean an employee employed in terms of a fixed term contract of employment 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 favourable terms, or did not renew it; or

SUMMARY: Whether the Applicant has established that there was a reasonable expectation for her to be permnantly employed by the Respondent or for her contract to be renewed as opposed to same contract being not being renewed on date of expiration.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me initially on the 12th of June 2023 and was concluded on the 17th of July 2023. During the proceedings, the Applicant, Ms Sonja Swart was represented by Mr Raynardt Botha of SAOU while the Respondent, was represented by Mr Joshua August. The parties also filed heads of argument on the 24th of July 2023.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.

THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair dismissal was committed by the Respondent relating to the nonrenewal of the Applicant’s contract of employent.

4. Prior to the hearing of evidence, the Applicant (per her representative) conceded that she carried the burden to prove that there was a reasonable expectation for her contract to be renewed.

THE BACKGROUND TO THE DISPUTE

5. In these proceedings the Applicant referred an unfair dismissal dispute relating the nonrenewal of her contract upon the date of expiration.

6. The Applicant claimed that she was employed on a series of fixed-term contracts with the Respondent which created the expectation that same conduct shall persist however on the 22nd of November 2021 she received notice that her contract would not be renewed.


7. The Respondent confirmed that the Applicant was employed on fixed term contract however disputed the argument of there being a reasonable expectation.

SURVEY OF EVIDENCE AND ARGUMENT

8. I shall hereunder summarize the evidence and argument presented during the arbitration.

9. Considering that the nature of the dispute herein is one of an alleged unfair dismissal based on a reasonable expectation of a contract renewal, the applicant bears the onus to prove that same reasonable expectation exists in her dispute in terms of section 186(1)(b) of the Labour Relations Act 60 of 1995 before the Respondent answers to the fairness of the dismissal. On account of the latter, the Applicant shall lead its case first then the Respondent (employer) shall follow in opposition.

10. The Applicant called one witness, herself, and presented on a bundle of documents in support of its evidence. The Respondent called two witnesses and relied on its own a bundle of documents as in support of its evidence. There was no dispute raised against the contents of the bundle thus same was adopted on the basis that the documents are what they purport to be.

11. The applicant (Ms Swart’s) evidence can be summarized as follows:

11.1 She was employed at Northlink College as a lecture for a few subjects from 4 March 2019.

11.2 Her employement was per fixed term contracts which stated the basis for each term of employement. The fixed term contracts were presented to her and explained upon date of offer of employment.

11.3 Before the expiration of an existing fixed term contract, she would be offered a new contract by the Respondent however initially the Respondent had furnished the Applicant with an notice of extension.

11.4 Between Dec 2019 and 1 April 2020, when the second fixed contract was due, she was verbally instructed by an official (the Campuss Manager) of the Respondent to return to the institution and work in anticipation of the formal fixed term contract was presented to her for signature.

11.5 She was well aware of the reason of being placed on a fixed term contract as was canvassed on each contract albeit the same reason for each term. To her recollection she was on a continuous term of employment although it was severed into several fixed term contracts, this was supported by the term of employment reflected in her salary slip.


11.6 To her understanding and on the basis of the advice of her legal representative she considered herself subject to the ELRC Collection Agreement 2 of 2013- PERMENANT APPOINTMENT OF SERVING TERMPORARY AND CONTRACT LECTURES WHO HAVE BEEN IN THE EMPLOY OF FURTHER EDUCATION AND TRAINING COLLEGES FOR A PERIOD OF 12 MONTHS OF LONGER- and the ELRC Collective Agreement 4 of 2018- THE APPOINTMENT AND CONVERSION OF TEMPORARY EDUCATORS TO POSTS ON THE EDUCATOR ESTABLISHMENT.

11.7 She considered the vacancy she occupied during her employement as a vacant substantive post. She also considered her employement as continuous in compliance with the requirements of the ELRC Collective Agreements that she was relying on.

11.8 She considered the several fixed term contracts and the renewal notices as having created a reasonable expectation.

11.9 After the expiration of her last fixed term contract, the Respondent advertised several vacancies that she (the Applicant) qualified to lecture and she believes that she ought to have been considered for those programs seeing that the Respondent was aware of her qualifications and competencies.

11.10 She testified that she was notified of the Respondent’s intention not to renew her contract and noted the reasons thereof.

11.11She testified that her employement was on a specific program which differed from other programs, also confirmed that her program was identified as one that was based on the number of registrations.

11.12 She testified that the Respondent’s decision for employing her at the age of 58 on fixed term contracts limited her prospects of fulltime employment elsewhere more so considering she had an expectation of perment employment or consistent renewals of the fixed term contract.

11.13 She testified that although it was communicated there were a number of lecturers who’s fixed term contracts would not be renewed, she was under the impression that she would be considered for lecturing an alternative program due to her competencies.

12. Ms Swart was subjected to cross-examination and the following was ascertained therefrom:
12.1 In her mind her age affected her employability.

12.2 Her last permanent employment was in 1996 and she held several temporary teaching vacancies in different institutions.

12.3 She confirmed that lecturers can be moved to teach subjects that they are competent to teach as such when a lecture who was working on fixed term contract does not return to the institution, the institution may use the services of their permanenent lecturing staff to teach the former’s subjects.

12.4 She confirmed that the reasons for the fixed term contract was based on student registrations (PQM) thus when there were fewer regsitrations the institution (the Respondent) was allowed to reconsider the employees serving fixed term contracts.

12.5 She believed that the nonrenewal of her fixed contract was due to her salary dispute with the Respondent.

12.6 She confirmed that there was a difference between the permanent appointed lecturers (employees) and fixed term appointed lecturers.

12.7 She confirmed that her appointed well after the date of Collective Agreement 2 of 2013 and that she was not ‘serving’ at the time of the collective agremement.

12.8 She confirmed that her post was not funded thus did not meet the definition of the ‘substantive’ position.

12.9 She confirmed that the reasons for fixing the term of employment was justifiable and was achieved. She also confirmed that the contract of employment addressed the requirements for renewal or what occurs in relation to ‘expectations for renewal’. She confirmed that the contract placed the onus on her (an employee) should she have a subjective expectation for renewal.

12.10 She confirmed that she did not address correspondence to any of the officials who could address her ‘expectation for renewal’ of her contract however contacted the campuss principal.

12.11 She confirmed that she was not subject to the Employment of Educators Act 76 of 1998 therefore the Collective Agreement refering to educators excluded her.

12.12 She confirmed that her employment was premised on the student number registrations (PQM) and institutional needs as per the contract.

12.13 She confirmed that she was not the only lecturer (employee) on a fixed term contract who’s contract was not renewed in 2021 therefore the Respondnent (employer) did not exercise its discretion inconsistently.

12.14 She confirmed that of the vacancies she identified, all would not apply to her directly because some were not for vacancies she couldl fill, some were advertised months after the nonrenewal of her contract as the institutional needs only arose. She also confimed that she has not lectured (taught) under the NATED program as she has only NCV program.

12.15 When asked whether it was fair to follow normal recruitment process after the institution’s needs required the filling of vacancies as opposed to merely appointing from those who’s contracts were not renewed, Ms Swart testified that is was reasonable to advertise and follow normal recruitment.

12.16 When asked whether there was a promise or undertaking from the Respondent of her contract being renewed prior to the expiration of her final fixed term contract.
12.17 She confirmed that renewal of fixed term contracts for lectutures at the Respondent was based on the need and that it wouldn’t be reasonable for an employer to appoint when such need is not existent.

13. The Respondent called two witnesses and presented a bundle of documents. The two witnesses called by the Respondent were one Mr Raymond Smal and one Mr Muziwakhe Mate.

14. The evidence of Mr Smal evidence can be summarized as follows:

14.1 He is the Campuss Manager at the Parow Campuss for the Respondent.

14.2 There are three types of teaching staff recruited at the institution,department employees who are employed or vacant substantive vacancies, employees who are employed on fixed term contracts depending on the institutional needs and permanent college council employees.

14.3 The Respondent (as an educational institution) operates on student interest which is usually confirmed by registrations for the various programs offered. The institution uses the program qualifications mix (PQM) linked to the FTE (full time financial equivalent program) in determining the institutional needs for recruitement amoungst other things. If a campus fails to meet its FTE then a cross-campus shift is considered to accommodate the institutional needs of the failing campuss but if the cross-campus shift is not possible then administrative decisions including staff needs are made timeously.

14.4 The Applicant’s fixed term contract of employment was explained to her more especially the terms and conditions of same.

14.5 The applicant is one of many lectures who were employed on fixed term contracts within the institution.

14.6 Lecture appointment are ringfenced to a specific department and sometimes programm depending on their skill, compentency and contract of appointment.

14.7 He confirmed that he was the official who communicated the nonrenewal of fixed term contracts and testified that the intention of the correspondence (notice) was two fold. One to communicate timeously to the affected employees of the instutiton’s (Respondent) decision not to renew the contracts.

14.8 After consideration of the PQM projections for all programs (based on the student interest) during the planning for the following academic year (2022) the institution determined that there were some programs which did not draw sufficient interest to support the renewal of the applicant and other staff fixed term contract.

14.9 Considering the strict terms and conditions applicable in the contract, one cannot claim to have a reasonable expectation for his or her fixed term contract to be renewed as there was no guarantee made in that.

14.10 Even if one claimed that the reasonable expectation is created by a small number of students showing interest in a program, when the institution assesses the need and determines that the numbers are such that a permanently employed employee can proceed with the program then again there wouldn’t be a justification for an appointment on a fixed term contract as the need is addressed.

14.11The reason for advertising posts around May 2022 is due to the need for services having arisen then, unfortunately in the beginning of the academic year that need had not arisen. The institution therefore used the permanently employed staff and introduced a rotating time table to ensure that students were attended to.

14.12 The instution offers NCV programs and NATED programs. The NCV program is an annual program that consists of three levels (level 2 to 4) which results in a student securing a matric equilvalent qualification upon completion of level 4. The NATED program is a post matric qualification which operates on semesters (per 6 months). The NATED program commences registrations in January and July annually and that is wherein the institution can determine when there’s an increase in demand (ie. need). When interest is high in january then the instution will work tirelessly to accommodate the need and ensure that the need is addressed for the July registrations.

14.13 The applicant did not occupy a vacant and substantive post because all vacant substantive posts were occupied by permanent employees.

14.14 The institution and no official of the instution made assurances to the applicant or any other employee regarding permanent employement or a fixed term contract being renewed.


15. Mr Smal was subject to cross-examination:

15.1 The applicant had communicated her disputes regarding the salary however the applicant has always been employed with a fixed term contract.

15.2 The applicant’s employment was not terminated for misconduct or performance however her contract expired and was not renewed.

15.3 Although the applicant was employed for a period longer than 12 months, its was on a series of individual fixed term contracts.

15.4 The notice of nonrenewal of contract (dated 18 November 2022) did not place a reason for the Respondent’s decision not to renew however the notice was addressed to the Applicant and other employees (on fixed term contract) after the email correspondence of the 15th of November 2021.

15.5 The human resources department is one of the departments overseen by the deputy principal however an extention of contract must be signed per delegation of authority.

15.6 An extension of contract requires signature to confirm receipt and confirmation of acceptance of same extention.

15.7 The applicant received three fixed term contracts and similarly received four contract extentions.

15.8 When it was put to him that the extensions created a reasonable expectation, he testified that if we considered program that the applicant was teaching together with the explicit terms of the contract then one cannot claim to have reasonably expected for contract to be renewed or to have been permanently employed.

15.9 When asked about the enrolment of students between 2021 and 2022, he testified that the numbers had decreased for NCV program.

15.10 When asked about the two Collective Agreements, he (Mr Smal) testified that they do not apply to the applicant.

16. The second witness called by the Respondent was Mr Muziwake Mate whose evidence can be summarized as follows:

16.1 He is the Deputy Principal- Corporate Services at Northlink College overseeing several departments.

16.2 He testified that the Respondent engaged on employement of lecturers and other service providers on fixed term contract from time to time dependant on the needs of the institution. The fixed term contract was specifically drafted in terms of section 198B of the Labour Relations Act, 66 of the 1995.

16.3 He testified that the employing of lecturers and other services providers on a fixed term contract is an insudtry (and profession).

16.4 He testified that the use of fixed term contract is based on the needs of the institution therefore if we consider the case on hand, the institution’s campuss had an increase in need therefore it was required to meet the need with the necessary capacity. When the need decreases then the capacity is altered accordingly. In short, numbers (need) determine the capacity (employment of service providers for a temporary work on fixed term contract).

16.5 He testified that Collective 2 of 2013 could not apply to the applicant because it was not created for lectures who are serving fixed term contracts, it was created to protect those lectures on temporary capacity indefinitely (on continuous basis). Also the applicant was not employed for the 12months referred in the collective agreement as the period for each of her fixed term contracts did not individually exceed 12 months. Lastly the collective agreement addressed those who were already in the system and the posts they occupied should have been funded in order for the collective agreement to apply. Unfortunately the applicant does not satisfy that requirement.

16.6 He testified that the institution has three types of employees there are those who are employed by the Department of Hight Education, there are those who are appointed by the college council and there are those appointed on fixed term contract.

16.7 He testified that a vacant substantive position is a permanent appointment.

16.8 He testified that the contract is clear that there is no promise of permanent work or even an extension of contract wherein the need for the specific services is not definite but fluctuates dependant on the instution’s needs.

16.9 When asked above Collective Agreement, he testified that it doesn’t apply to the Department High Education and Training. He further testified that before an institution considers changing an employee on fixed term contract to permanent employment requires an analysis of a program considering the registrations as the numbers must be static or the employee on fixed term contract must be occupying a vacant substantive post.

17. Mr Mate was subjected to cross examination and the following was learned therefrom:

17.1 He maintained that the applicant cannot rely on Collective Agreement 2 of 2013 as her case did not meet the requirements. The collective agreement did not have an end date however he can testify that it was a project to rectify the issue of lecturers who were subjected to indefinite temporary work.

17.2 Lectureres are not appointed in terms of the Employment of Educators Act rather the Public Service Act however because TVET colleges were transferred from the Deparment of Basic Education to college council then ultimately to the Department of Higher Education. During the phases of transfer there was onboarding of educators as such at the moment all new appointees are employed in terms of the Public Service Act.

17.3 Although the Collective Agreements are binding within the ELRC, each collective agreement binds the specific bargainging unit.

17.4 Although the applicant was employed at the Respondent for a period collectively longer than 12 months however contentexually no single contract was more than 12 months.

17.5 He confirmed that the contrat of employement that the Applicant was determined by need (enrolments) therefore a temporary post unlike those who were serving a vacant funded and substantive posts thus permanent posts.

17.6 He confirmed that Ms Swart’s employment was not terminated however same expired as she formed part of the a list of service providers (lecturers) whose contracts came to an end and were not renewed.

17.7 He testified although there were extentions after the fixed term contracts offered to the Applicant, same extentions were premised on the increase in need however when the program’s needs were addressed and her services were no longer needed then a further extension or even a renewal of her fixed term contract was not possible. The institution conducted the same analysis that was conducted while she was serving a fixed term contract to determine whether the need persisted.

18. The parties also filed written submissions in support of their respective cases.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

19. Besides the testimony, I shall also consider the subnmissions filed in support of each part’s case.

20. My analysis of Ms Swart is that she was astute although she did on occasion avoid responding to certain questions and refuted receiving certain correspondence from the Respondent.

21. The applicant similarly had instances wherein she could not recall her own evidence.

22. Her testimony also couldn’t support what she relied on to determine the expectation for permanent employment save. The applicant argued that the renewals and multiple fixed term contracts created an objective reasonable exepectation therefore failure to satisfy same expectation triggered the unfair dismissal.

23. The Applicant’s heads of argument, argued that the Applicant’s reasonable expectation was created by the consistent renewals coupled with the few fixed term contracts offered. Her submissions placed the following:

23.1 According to Collective Agreement 2 of 2013, after being an employee on contract for twelve (12) months, she should be regarded as permanently employed. The Applicant was in service at Northlink College for 26 months without any break in service.

23.2 The Applicant claims that regardless of the wording in a fixed term contract, a reasonable expectation was created for the renewal of her contract in December 2021. Clause 4.1 of the said collective agreement stipulates that a “Temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months of more and are currently in a vacant funded substantive post will be made permanent.” ELRC Collective Agreement 2 for 2013 was brought in as documentary evidence to support this claim.

23.3 In relying on King Sabata Dalindyebo Municipality v CCMA & others (2005) 26 ILJ 474 (LC), wherein the Labour Court found that “’employees (cleaners) had established a reasonable expectation, and consequently that then dismissal was deemed to be unfair in circumstances in which there were repeated renewals of the contract. The Applicant’s claim is premised on the basis is that since she was employed in March 2019, she was in service during January 2020 and January 2021. The Applicant argues that the need for a lecturer was still needed. Furthermore, the position that she occupied until her termination was again advertised in May 2022.

23.4 In relying on Owen & Others v Department of Health, Kwazulu Natal (2009) 30 ILJ 2461 (LC) wherein the court held that “where a fixed-term employment contract is not expressly renewed but the employee continues working, there is a tacit renewal of the contract on the same terms but for an indefinite duration. The applicant argued that that she was therefore dismissed because the contract was not renewed again, and technically, she was permanently employed based on Section 186(b) of the LRA.


24. The Respondent argued that the Applicant must prove that she was dismissed by establishing that there was an subjective expectation that was objectively reasonable that her contract would be renewed as per University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) & De Milander v MEC for the Department of Finance, Eastern Cape [2014] JOL 31613 (LAC). The Respondent’s submission placed the following:

24.1 The applicant cannot claim to have haboured a subjective expectation considering that she confirmed to have understood the contractual terms and conditions which specified her appointment.

24.2 The applicant also confirmed that she was aware of the different types of lectures and which one she formed part of.

24.3 The applicant also confirmed that her type of appointment (employment) depended on the needs of the institution and that there were no assurances made of her contract being renewed.

24.4 In arguing against any apprehension of objective reasonableness, the argument was that the applicant not only knew the terms of her contract but she knew the program she was employed into was temporary in nature.

24.5 In arguing against the application of the collective agreements, the argument was that the applicant failed to meet the critical requirements of each collective agreement. Namely occupying a vacant and substantive post to rely on Collective Agreement 2 of 2013 and being an educator in terms of the Employment of Educators Act ….. to rely on Collective Agreement….

25. My duty of as the commissioner herein is to establish if the applicant was dismissed in terms of section 186 then to determine the fairness of same dismissal.

26. All parties agree that the claim for dismissal herein is premised on the non renewal of the fixed term contract. The use of fixed term contract within employment is vast and this was reiterated in the latest matter addressing disputes of this nature. In Gauteng Provincial Legislature v Commission for Conciliation, Mediation and Arbitration and Others (JA87/2020) [2021] ZALAC 57; (2022) 43 ILJ 616 (LAC) (25 November 2021) the court addressed the very question whether nonrenewal of a contract constituted a dismissal. The court in the latter matter found that non-renewal of a previously renewed fixed-term contract does not always give rise to a legitimate unfair dismissal claim, but it also goes further and shows just how intricate and technical claims of this nature may become.

27. The applicant (Ms Swart) was tasked to not only establish that she had an expectation but she had to prove that it was objectively reasonable too. Her testimony did not assist her case considering that she was well aware of the contractualy terms and conditions of employement which emphsised the nature of her work.

28. The applicant cannot claim to rely on the fixed term contracts and renewals to establish her expectation while testifying that she was aware that her employment was temporary in nature as specified in the same contract. The latter is a clear contradiction.

29. The applicant also testified and argued that her expectation was also informed by Collective Agreement 2 of 2013 however it was argued (and she accepted in her testimony) that she did not occupy a vacant and substantive post. She accepted that her post was not funded as she was neither permanently employed by the Departmnet of Higher Education and Training nor was she permanently employed by the college council, instead when it was put to her that her appointment was based on the temporary institution needs, she accepted same. It is thus evident that the applicant was aware that her appointment was temporary and that her employment had a defined end date.

30. In the regard of the above, I make the following award.

AWARD

31. The Applicant has failed to establish that there was a reasonable expectation of her contract to be renewed in terms of section 186(1)(b) of the Labour Relations Act 66 of 1995.

32. The Applicant was not dimissed as contemplated in terms of section 186(1)(b) as her employment was not terminated save for the fixed term contract expiring by effluxion of time.


Yolisa Ndzuta
Panelist: ELRC