ELRC319-23/24GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)

(GAUTENG PROVINCE)


AWARD

Commissioner: Amos Mthimunye
Case No: ELRC 319-23/24GP
Date of the Award: 26 January 2024


IN THE DISPUTE BETWEEN:

LEBALLO AGNES APPLICANT

and

GAUTENG DEPARMENT OF RESPONDENT
EDUCATION


DETAILS OF HEARING AND REPRESENTATION
[1] This arbitration process was set down for hearing at 10h00, on 12 December 2023 and 18 January 2024 at the premises of the respondent at No. 2216 Klipgat Road, Mabopane, Tshwane West District office, Gauteng Province.

[2] The applicant, LEBALLO AGNES was in attendance, and she represented herself, while the respondent, GAUTENG DEPARTMENT OF EDUCATION was represented by its official, Mr George Mbonde.

[3] Both parties handed in bundles of documents which were accepted and marked “A”, and “R”.

[4] The proceedings were digitally recorded, and handwritten notes were also taken.

BACKGROUND TO THE DISPUTE
[5] The applicant was employed by the respondent as Educator for Akasia Primary School, City of Tshwane. She was engaged on 21 April 2023 and dismissed on 30 June 2023. She is seeking reinstatement as a form of relief.

[6] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995, amended, and (hereinafter referred to as “the LRA”).

[7] The respondent did not dispute the existence of the dismissal.

[8] The applicant is challenging both the procedural and substantive fairness of her dismissal.

Common cause issues
[9] The respondent employed the applicant on a fixed term contract of employment for a period 21 April 2023 to 30 June 2023.

[10] Both parties signed a contract of employment for the duration, 21 April 2023 to 30 June 2023.

[11] The applicant worked at Akasia Primary School until 30 July 2023.

[12] The schools closed on 23 June 2023 and re-opened on 18 July 2023.

[13] Akasia Primary School deposited an amount of R20 176.93 as salary to the applicant for a month ending on 31 July 2023.
Issues in dispute

[14] The applicant’s last working day at Akasia Primary School was 01 August 2023.

[15] On 19 July 2023 the respondent issued the applicant with employment application forms.

[16] The respondent employed the applicant for a further period from 18 July 2023 to 01 August 2023.

ISSUE TO BE DECIDED
[17] I must decide whether the applicant’s dismissal was fair or unfair.

[18] Appropriate relief, if any.

SURVEY OF EVIDENCE AND ARGUMENTS
Respondent’s Case
[19] The respondent’s witness, Ms Caroline Pitsi Thantsha testified under oath that she is employed by the respondent as principal of Akasia Primary School. She was Acting Principal for Akasia Primary School for the period 01 January 2023 to 30 September 2023.

[20] She had a good working relationship with the applicant at Akasia Primary School. The respondent employed the applicant as a substitute Educator for an Educator who was medically incapacitated for the period 21 April 2023 to 30 June 2023.

[21] The respondent did not employ the applicant for a further period beyond 30 June 2023. The applicant came to the school on 18 July 2023 when the schools re-opened. She saw the applicant on 21 July 2023 and told her that the respondent does not have any further contract of employment with her since it ended 30 June 2023.

[22] On 25 July 2023 the School Governing Body (SGB) of Akasia Primary paid the applicant salary for a period she has been at the school since 18 July 2023.

[23] She told the applicant not to report for work on 01 August 2023. The applicant ignored her and reported for work. On 01 August 2023 she told the applicant to vacate the school premises because she could not allow her to work without any contract of employment.

The applicants’ case
[24] The applicant’s witness, Ms Agnes Leballo testified under oath that on 19 July 2023 the clerk of the school issued her with employment application forms. She was required to complete and submit the said forms. She completed the forms and submitted them back to the clerk.

[25] The Acting Principal, Ms Thantsha kept on calling her to the office and conveyed contradictory information.

[26] On 25 July 2023 she was puzzled when she saw that Akasia Primary School deposited an amount of R20 176.93 into her bank account.

[27] On 27 July 2023 she had a suspicion that her application forms for employment had not been submitted to Tshwane West District office of the respondent. She then visited the district office to check if the school submitted her employment application forms. The official who served her told her that the forms were not submitted.

[28] On 01 August 2023 the principal, Ms Thantsha abruptly terminated her services at Akasia Primary School. she was ordered to vacate the school premises. She reported the incident to the ISDO who promised that the matter will be attended to. She did not receive any feedback until she referred the dispute to this forum.

ANALYSIS OF EVIDENCE AND ARGUMENT
[29] Section 186(1) of the LRA provides that “dismissal means termination of the employment contract with or without notice”. The respondent did not dispute existence of the dismissal. Therefore, the onus to prove the fairness of dismissal rested on the respondent.

[30] The evidence of both parties showed that the applicant was employed on a fixed term contract to substitute an Educator who was medically incapacitated. Evidence was clear from both parties that the applicant occupied a post of another Educator who was indisposed.

[31] It was common cause that the parties entered into a fixed term contract of employment (herein after referred to as “FTC”). This FTC was not extended for another period. There was no evidence that the respondent promised the applicant that it would extend the FTC for a further period.

[32] The applicant did not claim that the respondent created a legitimate or reasonable expectation to renew the FTC or employ her for another period be it fixed or indefinite. Considering this fact, it does not make sense why the applicant completed employment application forms when in fact the respondent did not promise to renew, extend or employ her for a further duration.

[33] The applicant did not dispute the evidence of Ms Thantsha that she told her that her FTC had lapsed on 30 June 2023. Therefore, the evidence of the applicant that she was given employment application forms did not make sense. There was no evidence that the respondent had promised to employ the applicant for any further duration.

[34] The evidence of the respondent showed on a balance of probabilities that the applicant was employed for a fixed duration and that same had lapsed. It was clear from the evidence of both parties that the reason for termination of the employment relationship was due to the effluxion of time.

[35] It flows from the evidence of both parties that the applicant knew that her contract of employment came to an end due to effluxion of time. It was evident from the testimony of both parties that the applicant knew that the position she occupied was of another Educator who was medially incapacitated. The position was not vacant, and such could not be advertised and filled.

[36] In Smith and another v. Office of the Chief of Justice and others (2018) 39 ILJ 1357 (LC), the Court held that section 186 does not confer any rights or protections on employees, but that it merely defines ‘dismissal’. The application of section 186(1) (b)(ii) means no more than that an employee whose contract has not been renewed may assert the existence of a dismissal where he or she reasonably harbours an expectation of indefinite employment. Whether or not the dismissal so established is fair, is a separate enquiry. The evidence in this case showed that the applicant, Ms Leballo was dismissed for the reason that the fixed term contract agreed upon lapsed.

[37] The applicant sought reinstatement as a form of relief. In light of the fact that the applicant was employed for fixed term period of three (03) months, and that her contract was terminated on the agreed date of the fixed term period, I cannot find that the applicant should be entitled to any form of relief.

AWARD
[38] The respondent, GAUTENG DEPARTMENT OF EDUCATION has succeeded to discharge the onus of proof that the dismissal of the applicant, Ms AGNES LEBALLO, was fair.

[39] The dismissal of the applicant, Ms AGNES LEBALLO by the respondent, GAUTENG DEPARTMENT OF EDUCATION was both procedurally and substantively fair.

[40] The claim of the applicant is hereby dismissed.

Amos Mthimunye
EDUCATION SECTOR