IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CENTURION

CASE NO.: ELRC664-24/25 LP
In the matter between:-
SADTU obo MATLATLE MM APPLICANT

and
DEPARTMENT OF EDUCATION- LP RESPONDENT

ARBITRATOR: MMAKGARE PIET SHAI
HEARD : 18TH OF FEBRUARY 2025
DATE OF AWARD: 20TH OF FEBRUARY 2025
SUMMARY: UNFAIR DISMISSAL
ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The matter was scheduled for hearing on the 18th of February 2025 at the Department of Education, corner Biccard and Hospital Streets, Polokwane.
2. Both parties were present. The applicant was represented by Mr Martin Seopa, whereas the respondent was represented by Ms Nthabiseng Rasebotsa. Mr Mpho Mosomane provided interpreting services in Sepedi. The proceedings were digitally recorded.
3. At the end of the proceedings, parties were requested to file written closing arguments, which they did and same were taken into account in arriving at conclusions herein.
   ISSUE TO BE DECIDED
4. I am called upon to determine whether the applicant, Ms Moloko Matlatle was dismissed or not. If I find that the applicant was dismissed, I will determine if same was fair or not. In the event I find that the dismissal was unfair, I will determine an appropriate remedy for her.
   BACKGROUND TO THE ISSUE
5. The applicant was employed on a fixed term contract as an educator for the period 16 February 2023 – 31 December 2023. At the end of the period, the school authorities made a recommendation for her to be employed on a permanent position. The respondent declined the recommendation and gave reason therefore.
6. The applicant contended that by not employing her as per recommendation, she was dismissed as she had legitimate expectation to be so appointed.
7. The respondent on the other hand contended that there is no dismissal as the fixed term contract had expired.
   SURVEY OF EVIDENCE FOR THE APPLICANT
   MS MOLOKO MATALLE, THE APPLICANT TESTIFIED UNDER OATH ON HER BEHALF AS FOLLOWS:
8. She was employed as a fixed term contract for the period 16 February 2023 to 31 December 2023 as an educator. At the end of the period, the school authorities made a recommendation that she be employed on a permanent basis at the school. As a result of this, the school principal requested her to report in January 2024 when the schools reopened.
9. She was given the relevant forms to complete and was informed that they are to be submitted to the circuit office and should wait for a response. Meanwhile she proceeded with her work. She received a regret letter on the 6th February 2024.

SHE TESTIFIED AS FOLLOWS UNDER CROSS EXAMINATION:

10. Her fixed term contract was for the period 16 February 2023 to 31 December 2023. She however did not know that it will end on the 31st December 2023. That is so because of the recommendation that the school made and a request for her to report on duty.
11. She conceded that a recommendation is not equivalent to an appointment. She conceded further that she was not a bursary holder of the Department and did not study at North West University. Further that she did not hold a B Ed qualification which was a minimum requirement for appointment as a foundation phase educator.
12. She conceded that she did not sign the register as it appears in the bundle of documents in 2024 but said she signed on separate one.

SURVEY OF EVIDENCE FOR THE RESPONDENT

MR SEKHAOLELO KWENA MOSES TESTIFIED FOR THE RESPONDENT UNDER OATH AS FOLLOWS:

13. The applicant was employed on a fixed term contract as an educator for the period 16 February 2023 to 31 December 2023. At the end of the said period, he submitted a recommendation that she be appointed on a permanent basis which the respondent declined.
14. The respondent response read amongst other that: (13) “Recommendation for the appointment of the applicant listed above who is in possession of Diploma in R, obtained from Lyceum considered unsuccessful as per directives elucidated in Departmental circular 5 of 2021 read together with Departmental circular 49 of 2023 (paragraph 4, 4.1 to 4.5) (14) Subsequently the school is advised to advertise the post and employ the educator who meets the requirements as per the circulars mentioned above.
15. The Departmental circular no: 49 of 2023 provided as follows:

“Therefore, the directives below serve to elucidate Circular 5 of 2021.
The following are the directives:
15.1. All qualified grade R Practitioners (NQF level 6) who were sponsored by the Department to enroll at the University of North West, be absorbed in post(s) allocated for the Foundation Phase on the school establishment where vacancies occur;
15.2. It should be noted that B Ed in Foundation Phase teaching is a minimum requirement for the appointment to teach Grade R. therefore , practitioners with B Ed in Foundation Phase teaching, qualify to be absorbed in post(s) allocated for the Foundation Phase on the school establishment where vacancies occur;
15.3. The appointment referred to in paragraph 16.1 and 16.2 above should be effected in terms of section 6A of the Employment of Educators Act 76 of 1998 as amended;
15.4. All practitioners already in the employ of LDoE shall be retained on the current conditions of service until Department of Basic Education directs otherwise; and
15.5. There shall be no further appointment; including replacement of Grade R practitioners in schools, instead ONLY professionally qualified educators will be appointed.”

16. The applicant neither studied at the University of North West as a bursary holder nor does she possess B Ed as a qualification. According to him, the applicant did not qualify to be absorbed as per above requirements.
17. The applicant did not sign the attendance register in 2023 because she was no longer an employee.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
18. In this matter, dismissal is in dispute hence the applicant bears the onus to establish the fact of her dismissal. Once she succeeds in doing so, the onus would revert to the respondent to justify the said dismissal. See in this regard section 192 of LRA 66 of 1995 as amended. The employer does so on a balance of probabilities. This is achieved by weighing up the two versions against each other, the one that is most probable wins the day. See in this regard Early Bird Farms (PTY) LTD v. Mlambo [1997] BLLR 541 (LAC), at 544.
19. In this case, the applicant contended and led evidence to show that she was dismissed by the respondent. The applicant was employed in a fixed term contract for the period 16 February 2023 to 31 December 2023. At the end of the term, the principal recommended that she be employed on a permanent position which the respondent declined, on the basis that she was not a bursary holder of the Department, that she did not have the minimum requirement qualification being B Ed in foundation phase. The respondent advised the school to advertise the post and appoint a qualifying candidate.
20. In essence, the applicant contended that she was dismissed on the basis that she had legitimate expectation that her fix term contract would be renewed or be absorbed as per the above recommendation by the school authorities.
21. Section 186 (1) of the labour relations Act 66 of 1995 as amended defines dismissal amongst others as:
    “(b) An employee employed in terms of a fix terms contract of employment reasonably expected the employer –
    (i) 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
    (ii) To retain the employee in employment on indefinite basis but otherwise on the same or similar terms as their fixed term contract but the employer offered to retain the employee on less favourable term, or did not offer to retain the employee”
22. Grogan John, Workplace Law, eleventh edition, Juta, Grahamstown 2014, at page 45 para 3 says the following.

“The LRA expressly provides that the non – renewal of a fixed term contract constitutes a dismissal if the employee reasonably expected the employer to renew it on the same or similar terms or if the employee expected permanent employment, but the employer offered to renew it on less favourable terms or did not renew it. Whether non-renewal of a fixed term contract amounts to a dismissal therefore depends on circumstances, including, but not limited to number of previous renewals. However, where the contract clearly indicates that it is of a temporary nature, or if adequate notice is given of the termination of a fixed term contract, such termination will not be regarded as a dismissal”.

23. In our given case, it is clear that the contract was of a temporary nature. At the end of the term, a recommendation was made to extend or that she be appointed on a permanent basis.
24. The applicant admitted that this was a recommendation and cannot be equated with appointment. Although she denied that she did not know that the fixed term contract would expire on the 31st December 2023, she clearly knew, hence there was a recommendation made. She further testified that she was told by the principal that they should await a response from the respondent. She testified that she reported for duty in 2024 but the register shows that she did not sign the attendance register. The principal testified that is so because she was no longer working for the respondent. This was not disputed by the applicant. Although the applicant testified that she was made to sign a separate register, this was not put to the principal when he testified. Further, a separate register which she signed was not submitted during the hearing and no corroborating evidence adduced.
25. In addition, the applicant did not qualify for absorption as she did not meet the requirements set for absorption as stated above.
26. Can it be said that the applicant had reasonable expectations that the contract would be renewed? I do not think so for reasons given above.

AWARD

27. I find that the applicant was not dismissed but her fixed term contract came to an end. M P SHAI

THE PANNELIST