07 July 2022 – ELRC774-2122WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

Case No: ELRC 774-2122WC

In the matter between:

D LUNGA Applicant

and

HOD, DEPARTMENT OF EDUCATION, WC Respondent

ARBITRATOR: D P Van Tonder

HEARD: 12 April 2022; 22 June 2022

FINALISED: 30 June 2022

DELIVERED: 7 July 2022

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(1)(b) – Alleged Unfair Dismissal – Whether employee had a reasonable expectation of indefinite employment alternatively a further fixed term contract – Factors to be taken into account to establish whether employee has such reasonable expectation

ARBITRATION AWARD

I THE PARTIES

Applicant
[1] The applicant is Ms Duduzile Lunga. She was represented by a practising attorney, Mr Alssop from Haffegee Roskam Savage Attorneys.

Respondent
[2] Respondent is the Head of the Western Cape Education Department, who was represented by an employee Ms Ngqokombe.

[3] In his closing heads of argument, Mr Alssop has cited “the Pinelands High School” as first respondent and the WCED as the second respondent. These citations are wrong. The Employment of Educators Act provides that for all purpose other than creating posts, the employer of any educator employed by the state at a public school is the provincial head of department of the applicable department of education. In terms of the ELRC Constitution the ELRC only has jurisdiction over the state in its capacity as employer as defined in the Employment of Educators Act. The ELRC has no jurisdiction over the Pinelands High School or any other school. Hence there is only one respondent in these proceedings and that is Head of the Western Cape Education Department.

II PROCEDURAL HISTORY
[4] This matter was conciliated before another panellist but could not be settled. I was appointed as arbitrator and heard evidence on 12 April 2022 and 22 June 2022 via Zoom. The proceedings were digitally recorded. I received the final written closing arguments on 30 June 2022.

III THE ISSUES TO BE DETERMINED

[5] I am required to determine whether the applicant was dismissed and if so, whether such dismissal was fair, and if not, the appropriate relief.

IV BACKGROUND TO THE DISPUTE
[6] The applicant was employed by respondent on the following fixed term contracts as post level 1 educator at Pinelands High School at a monthly salary of R33 802:

• 01/07/2019 – 31/12/2019
• 01/01/2020 – 30/06/2020
• 01/07/2020 – 31/12/2020
• 01/01/2021 – 31/12/2021

[7] Applicant’s contract was not renewed after it expired at the end of December 2021. Applicant claims that she had a reasonable expectation that her contract would be renewed indefinitely, alternatively that she would be placed on a further fixed term contract for another 12 months. She therefore claims that she was dismissed in terms of section 186(1)(b) of the LRA.

[8] During opening statements applicant’s attorney asked for an order of indefinite reinstatement, alternatively for a further 12 months fixed term contract, alternatively for compensation equal to 12 months salary. During closing arguments applicant’s attorney asked for compensation equal to 12 months’ salary.

[9] Respondent disputes that applicant was dismissed, but submits that in the event that I find that there was an unfair dismissal, that compensation must be limited to 6 months.

V THE EVIDENCE

[10] The evidence submitted in this arbitration consist of documentary evidence together with applicant’s oral evidence. After applicant testified and closed its case, respondent also closed its case without calling any witnesses.

Documentary evidence
[11] The parties handed in four pdf bundles of documents marked A, B, C and D. Bundle B contains the pre-arbitration minute signed by both parties.

    Evidence on behalf of applicant

[12] Duduzile Lunga, the applicant testified that she is qualified as a mathematics teacher, is registered with SACE and has permanent residency in South Africa. She was employed by respondent as a post level 1 educator teaching mathematics at Pinelands High School on four fixed term contracts for a continuous period between 1 July 2019 and 31 December 2021. The practice was that each time shortly before her contract would terminate, she was required to complete and sign documents in order for her contract to be renewed again. That did not happen again in the last term of 2021 when her last contract ended.

[13] She was first employed as an educator at Pinelands High School by the school governing body from 2015 until 2018 in a governing body position to teach mathematics. She resigned from that position in 2018 in order to further her postgraduate studies in the USA. When her mother died she returned to South Africa in January 2019.

[14] Towards the middle of 2019 there was a vacancy at Pinelands High School for an educator who can teach mathematics to grades 7 to 12 when the mathematics teacher resigned in order to move overseas for further studies. This was a WCED position. She advised the school that she was available and the principal Mr Campbell then provided the necessary documentation to her to enable her to apply for the post.

[15] Respondent first appointed her to the post on a six months contract from 1 July 2019 to 31 December 2019. The principal Mr Campbell told her at the time that there is a possibility that this contract could be converted into indefinite employment.

[16] In October 2019 she completed forms in order to renew her contract and her contract was renewed from 1 January 2020 until 30 June 2020. She is of the view that the documents that she completed on this occasion were also in order to assist the conversion of her contract position into indefinite employment. On 26 June 2020 she again completed forms in order to renew her contract and thereafter her contract was renewed from 1 July 2020 until 31 December 2021. During November 2020 she completed forms to renew her contract and this time it was renewed from 1 January 2021 until 31 December 2021.

[17] On 26 June 2020 Mr Campbell wrote and personally signed a letter which was sent to the WCED in which he recommended that applicant’s employment contract be converted to a permanent contract by the WCED. Applicant testified that the principal’s PA Ms Timm informed her that it was necessary to request that her contract be extended for a further period because the process for conversion to a permanent post takes some time to finalise.

[18] When she was not given any forms towards the end of 2021 to complete in order to renew her contract, she did not think that this means that her employment would terminate. The PA of the principal who always sent these forms to her was booked off sick with cancer at the time. Sometimes in the past the forms were only sent to her a few days before her contract expired. However, on 10 December 2021, five days before the schools closed, she received an email from the principal Mr Campbell in which it was made clear that her contract would not be renewed again.

[19] She was surprised because the previous year on 10 December 2020 the principal asked her for her completed forms in order to renew her contract for 2021, but exactly a year later on 10 December 2021 she is advised by him that her contract would not be renewed. She did not expect that her contract would not be renewed again. In November 2021 her name was even included in the work rosters for Pinelands High School for 2022. Furthermore the practice at Pinelands High School was that when an educator would leave the school, the school would bid the educator farewell in the staff magazine, but in her case that never happened.
[20] She conceded during cross-examination that she was working from home between June and October 2021 due to her comorbidities in order to avoid the risk of contracting Covid19. She also conceded that when the Covid19 vaccines became available in 2021 she did not get vaccinated and did not return to school. She explained however that it was due to a medical condition that she could not get the vaccine and that she provided the required medical certificates in this regard to the principal.

[21] It was put to her in cross-examination that during 2021 she did not perform well and did not perform the services expected of her due to her extended absence from work in 2021. It was further put to her that when it was agreed that she can work from home, she was told that she must teach the learners online during the week and that on week-end she must go to school and print documents but that she refused to go to school on week-ends. She admitted that she did not go to school on week-ends because of the risk to contract Covid19. She discussed this with the principal who said if she could provide a doctor’s report in this regard, she need not come to school on week-ends. She did provide this report. She denied that she performed poorly. She taught remotely from home and nobody ever advised her that there was an issue with her performance. The first time that she heard that there was an issue with her performance, is during this arbitration.

[22] It was put to her during cross-examination that the version of the principal Mr Campbell is that he never recommended her for conversion to indefinite employment, and never intended to do so, and also did not recommend any further extensions of her contract, because she was absent from work for so long during 2021 from June until October and that this negatively impacted on the school as the school had to appoint a substitute teacher.

[23] Applicant denied that her absence negatively impacted on the school. She reiterated that she has never heard this version before this arbitration. She added that the substitute teacher was appointed before she started teaching from home and that she still trained the substitute teacher.

[24] She testified that she had an expectation of indefinite employment. Promises of indefinite employment were made to her by the principal, her contract was renewed for more than two years, and she worked in a vacant substantive position which is still available.

[25] Applicant conceded that she cannot say that there was any consultation with the SGB about her conversion or that any of the other requirements provided for in clause 4.4 or 4.3.2 of Collective Agreement 4 of 2018 had been complied with.

[26] She testified that in the event that I find that she did not have an expectation of indefinite employment, then she at least had an expectation of further fixed term employment for 12 months and asked for compensation equivalent to 12 months’ salary.

VI ARGUMENTS
[27] I do not intend to summarise the written closing arguments here as it form part of the record. On behalf of applicant it was submitted that applicant was unfairly dismissed as contemplated in section 186(1)(b) of the LRA and that I must award compensation equivalent to 12 months’ salary.

[28] On behalf of respondent it was submitted that although applicant was initially a good teacher, she performed poorly during 2021 due to he extended absence from work.

[29] Although some of the submissions made by respondent in its written closing arguments consist of new facts that that were never placed before me during the arbitration hearing Zoom, I will nevertheless summarise the essence of the respondent’s submissions:

• Due to comorbidities applicant was absent from work and working from home from 15 June 2021 and did not return to work that year;
• Applicant was given tasks and instructions that she needed to do, and it was further arranged that she must go to the school over the weekends to print and collate assessments for learners. She indicated to the principal that it was unsafe for her to access the school over weekends;
• When the vaccine became available applicant advised that she was allergic to the vaccine and submitted a medical certificate in August 2021 stating that she is at a higher risk of a vaccine side effect due to her Polysorbate 80 allergy;
• Applicant submitted a medical certificate which booked her off from 11 October 2021 until 11 November 2021;
• On 12 November 2021 applicant submitted another medical certificate where she was booked off until the end of the year;
• Applicant attempted to mark NSC exams whilst off sick;

• The school was affected by the absence of applicant because she was a Mathematics educator and Mathematics department needs an employee that must be present in the classroom;
• Since applicant was not at school the school had to appoint a substitute educator and pay her from the school’s money and the school was under strain;
• Applicant’s inability to teach in the classroom for months as a Mathematics educator placed the school under a lot of pressure;
• Applicant’s refusal for taking vaccine despite her doctor stating that she could be vaccinated under special conditions and the fact that she attempted to mark NSC exams whilst off sick has damaged the employment relationship;
• Based on the above reasons the school decided not to renew applicant’s contract, and this decision was taken in the best interest of learners and of the school;
• In the event that I decide that applicant was unfairly dismissed, then compensation must be limited to 6 month’s salary.

VII DISCUSSION
[30] The dispute that was referred to arbitration is an unfair dismissal dispute. It is in dispute whether applicant was dismissed. In terms of the Labour Relations Act the onus is on applicant to prove that she was dismissed. If she succeeds in proving this, the onus is on respondent to prove that the dismissal was fair.

THE DISMISSAL
[31] Section 186 of the LRA creates several forms of dismissal. Applicants’ claim is based on section 186(1)(b) of the LRA which reads as follows:
186 Meaning of dismissal
(1) ‘Dismissal’ means that-
(b) an employee employed in terms of a fixed-term 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 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;

[32] To discourage evasion of labour legislation, article 3 of Convention 158 of 1982 of the ILO require signatory States (of which South Africa is one) to provide adequate safeguards against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from labour laws. In terms of article 1 of that convention, signatory States must give effect to the terms of that convention through legislation, court decisions, arbitration awards and collective agreements. It is against the background of these obligations of South Africa’s in terms of International Law, that section 186(1)(b) of the LRA, was enacted:

“Section 186(b) was included in the LRA to prevent the unfair practice of keeping an employee on a temporary basis without employment security until it suits the employer to dismiss such an employee without the unpleasant obligations imposed on employers by the LRA in respect of permanent employees”

[33] The enquiry to be conducted in determining whether an employee had a reasonable expectation as intended in section 186(1)(b) consists of both subjective and objective factors. The employee must have the subjective expectation that his contract would be renewed indefinitely (alternatively for a further fixed term period), and that expectation must objectively be a reasonable expectation.
[34] The employee must in other words prove an objective basis for the creation of this expectation, apart from the subjective say-so or perception of the employee. The objective test requires a determination whether a reasonable employee in the circumstances prevailing at the time would have expected the renewal of the contract.

[35] Whether or not an expectation is reasonable depends on the conduct of the employer, what it had committed itself to, and what the applicant expected and was entitled to expect. Thus it cannot be based upon a misinterpretation of an assurance, undertaking or dealing, or a mere unsubstantiated belief of the person asserting it.

[36] Over the years a number of factors have been considered by the courts in assessing whether or not a reasonable expectation exists. These include, but are not limited to the following:

• The surrounding circumstances;
• The terms of the contract;
• Past practice or custom in regard to renewal;
• Promises or undertakings;
• Continued employment;
• Continued availability of the position;
• Continued availability of funds;
• Failure to give reasonable notice of non-renewal
• The purpose of or reason for concluding the fixed term contract;
• The reason for termination;
• Inconsistent conduct
• The nature of the employer’s business;
• Conduct of the employer

The alleged reasonable expectation of indefinite employment
[37] The public education sector is unique and employment law in public education is also unique. Some of the unique features of employment law in public education include the following:
• The provincial HOD of a provincial education department is the employer of educators in public schools and only he can appoint educators permanently;
• The provincial HOD acts ultra vires and unlawfully if he permanently appoints an educator at a public school if such educator is not on the list of educators who have been recommended for appointment into that post by the SGB of that school;
• If there are educators in the province who are in excess of the staff establishment of any public school due to operational requirements, the recommendation of a SGB may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned;
• The provincial HOD may only convert the temporary appointment of an educator into indefinite employment after he has consulted the SGB of that school in this regard;
[38] It is against this background that ELRC Collective Agreement 4 of 2018 was concluded. That collective agreement inter alia provides for the circumstances under which educators appointed on fixed term contracts can acquire indefinite employment and the criteria that must be met for such conversion. It recognizes that the SGB must first be consulted before such conversion can be effected.

[39] Clause 4.3.2 of the Collective agreement also provides that a temporary educator may only be appointed permanently if the post cannot be filled by:
• a permanent educator who qualifies for the post and who is in addition to the educator staff establishment;
• a first time applicant to whom the employer has a contractual obligation to appoint in terms of a bursary;
• any other first time applicant.

[40] Clause 4.4 of the Collective agreement further provides that in order for a temporary educator to be converted into indefinite employment the following procedures must be followed:
• The School must submit in writing to the employer the profile of the funded, substantive and vacant level 1 post at the school which is occupied by the temporary educator who qualifies for conversion
• The school principal and school governing body must submit written confirmation to the employer that there are no educators referred to in clause 4.3.2 of the Collective Agreement who could be appointed to that post.

[41] Unless these requirements are all met, an educator cannot have reasonable expectation of permanent employment. The onus was on applicant to prove that these requirements were met.

[42] There is no evidence before me to suggest that the SGB of this school was ever consulted by the employer about applicant’s possible conversion to indefinite employment status. Applicant conceded that during her evidence. There is also no evidence before me to suggest that there were no educators in excess to the staff establishment in the in the province who qualified for the post, or that the SGB had certified to the employer that there are no such educators. Applicant conceded this too during her evidence.

[43] Applicant’s evidence that the principal and his PA made promises of indefinite employment to her takes her claim for indefinite employment nowhere, because neither the principal nor the PA has authority to make appointments and they have no authority to bind the employer or to make promises on behalf of the employer. The employer is first respondent and only first respondent can make appointments and binding promises of indefinite employment. It is trite law that where a party relies on representations or promises in order to prove a claim of reasonable (or legitimate) expectation, it must first be established that the official who made those promises or representations had the necessary authority to make such promises or representations, because if he did not have such authority then the expectation cannot be reasonable (or legitimate).

[44] For these reasons I am satisfied that given the clear and unambiguous language used in the ELRC Collective Agreement 4 of 2018, applicant could not possibly ever have had a reasonable expectation of conversion into indefinite employment. Whatever expectations of indefinite employment that applicant had, were unreasonable as they were not founded on ELRC Collective Agreement 4 of 2018 that governs the conversion of contract positions into indefinite employment.

The alleged reasonable expectation of further fixed term employment
[45] It is generally easier to prove a reasonable expectation of further fixed term employment than to prove a reasonable expectation of indefinite employment. Although applicant could not prove a reasonable expectation of indefinite employment, I am for the following reasons, nevertheless satisfied that a reasonable expectation of further fixed term employment has been proved. Having carefully assessed the evidence before me, the arguments and the law, I am of the view that the following aspects are import factors that support the inference that applicant had a reasonable expectation that her contract would be renewed as from 1 January 2022 for a further fixed term period. None of these factors are individually decisive, but their cumulative effect has persuaded me to find that a reasonable expectation of renewal for a further fixed term was created.

Continued availability of the post
[46] While the continued availability of a post can on its own never justify a reasonable expectation of further fixed term employment, it does show that further fixed term employment was not impossible. Without the continued availability of the post, an expectation of further employment would generally be completely unreasonable.
[47] Where the post is still available, continued employment is at least a possibility and may, depending on the existence of other factors, give rise to a reasonable expectation of further fixed term employment. In the absence of justifiable reasons why the contract was not renewed, the continued existence of the post filled by another fixed term contract employee, will count in favour of an applicant who claims that she had a reasonable expectation of further fixed term employment.

[48] It is common cause that the post in which applicant was employed, is a vacant substantive post. The previous incumbent resigned, the post is still available and has still not been permanently filled after the expiry of applicant’s last fixed term contract. Another educator is now acting in it. The post has not yet been re-advertised for permanent filling. That being the case, this factor counts in applicant’s favour in establishing a reasonable expectation of renewal.

Past Practice of renewal
[49] Applicant was employed on four consecutive fixed term contracts between July 2019 and December 2021 and the contracts were renewed without demur. The more frequently an employer has renewed a fixed term contract in the past, and the longer an employee has been employed on fixed term contracts, the more reasonable the employee’s expectation that the employer will continue to do so in future will be.

No contractual provision excluding reasonable expectation
[50] The Courts have held that although a reasonable expectation can exist despite the fact that the fixed term contract signed by the employee expressly stipulates that the employee fully understands that he has no reasonable expectation of renewal, an employee must, where such a clause exists, place more compelling facts before the arbitrator to make his expectation reasonable and that the mere say-so of the employee that there is an expectation, based on flimsy grounds, would not suffice. In this case applicant never signed any contract containing any provision of this nature.

The reason why the fixed term contract was concluded
[51] Applicant was appointed on a fixed term contract after the previous incumbent to the post resigned, pending the permanent filling of the post. To date the post had not yet been filled and is still vacant. The very same operational requirement for appointing applicant initially therefore still exists today.

     Failure to give applicant timeous notice of non-renewal

[52] Where an employee has been employed temporarily on so many fixed term contracts for so long, then if the post that she occupied on the last day of her final fixed term contract is still available, the employee could form a reasonable expectation that the contract will be renewed again in accordance with past practice, unless she is warned timeously that her services would no longer be required. The first time that applicant was ever informed that her services would no longer be required after 31 December 2021 was on 10 December 2021 – five days before the closure of the schools.

[53] Given the past practice in terms of which contracts were simply extended for such a long period since July 2019, this notice period was not sufficient to dispel a reasonable expectation of further fixed term employment. In this regard Geldenhuys makes the following observations:

“By its mere existence, the doctrine of legitimate expectation places a duty on employers to ensure that sufficient notice is given before termination of fixed term employees’ contracts, particularly those appointed in terms of renewable fixed term contracts. In certain circumstances, the fairness would require holding a hearing prior to termination of a fixed term contract. Whether or not such an entitlement exists will need to be established based on the facts of each matter. If an employer is capable of providing sound reasons for why the expectation had not been given effect to, the court may decide not to enforce it.”

[54] Given the many renewals of applicant’s contract since July 2019, the employer must have realised that in the circumstances, applicant would have formed a reasonable expectation of continued fixed term employment. Yet, despite this the employer never informed applicant prior to 10 December 2021 that her contract would not be renewed again and neither did it invite applicant to make representations why her contract should be renewed again.

    Arranging the applicant’s work schedule for 2022

[55] Applicant’s uncontested evidence was that during November 2021 she received notification that she had been included in the school’s work schedules for 2022. It is generally accepted that a reasonable expectation of further fixed term employment may be created by the employer by arranging the employee’s work schedule for the future, or by indicating in some other way that the employee will still be working after the date on which the contract is due to lapse.

Conclusion in relation to the alleged dismissal
[56] In the circumstances, having carefully considered the evidence before me, the arguments and the law, I have arrived at the conclusion that applicant had a reasonable expectation that her contract would be renewed again as from 1 January 2022 for a further fixed term period. Accordingly, when the employer refused to renew applicant’s contract for a further fixed term period, respondent dismissed applicant as contemplated in section 186(1)(b) of the LRA.

THE FAIRNESS OF THE DISMISSAL
[57] Once a court or tribunal has found that there was a dismissal in terms of section 186(1)(b) of the LRA, it must determine whether such dismissal was substantively and procedurally fair. In other words, a dismissal in terms of section 186(1)(b) is not inherently or automatically unfair; a court or tribunal will also have to consider the circumstances with a view to establishing whether the employer’s conduct was justified.

[58] The onus to prove that the dismissal was fair, is on the employer. In order for a dismissal to be fair, section 188 of the LRA requires that the reason for the dismissal must be a fair reason related to the employee’s conduct or capacity or based on the employer’s operational requirements (substantive fairness) and that the dismissal must have been effected in accordance with a fair procedure(procedural fairness).

[59] During cross-examination of applicant it was put to applicant that it was due to her poor work performance that her contract was not renewed. Her alleged poor work performance allegedly consisted of her extended absence from work during 2021 after the Covid vaccine became available and her failure to go to school during week-ends to make photocopies for her online classes.
[60] It was also put to applicant during her cross-examination that she refused to be vaccinated after the vaccines became available and instead continued working from home due to her comorbidities.

[61] Applicant denied that she performed poorly. She testified that her working from home did not negatively impact on the learners, that she was teaching online, that she could not take the covid vaccine due to an allergy and that she explained to the principal that it was due to her comorbidities that she could not go to school during week-ends either. Respondent called no witnesses to refute applicant’s evidence in this regard.

[62] During closing arguments respondent’s representative elaborated further on these allegations. It was also stated that applicant attempted to mark NSC exams whilst off sick during 2021. Respondent submitted that applicant’s extended absence from work during 2021, her refusal to take the Covid vaccine and her attempt to mark NSC exams whilst off sick are all factors that damaged the employment relationship and that it was therefore in the best interest of learners and of the school not to renew her contract.

[63] I accept that learners attend public schools to receive face to face instruction from educators and that public education is not a correspondence course. The concessions that were made in terms of ELRC Collective Agreement 1 of 2020 to allow educators to work from home due to the pandemic, was only applicable during alert levels 2 and 3 of the pandemic. By June 2021 these alert levels 2 and 3 were no longer applicable and hence applicant’s absence from work was no longer authorised in terms of the Collective Agreement. It was then up to the respondent as employer to decide whether he will make any further concessions in respect of applicant or any other educators with comorbidities.

[64] If respondent was not prepared to make any further concessions, and those educators in respect of whom no further concessions were made, failed to return to work, it was respondent’s duty to act against them by commencing either incapacity proceedings, alternatively misconduct proceedings, and thereby commencing the process of terminating their services in the manner provided for in the LRA. This is what the law requires.

[65] There is no evidence before me to suggest that respondent ever commenced any incapacity or misconduct proceedings to address applicant’s absence from work. It is therefore difficult to understand how respondent could expect anybody to believe that it considered applicant’s absence as incapacity or misconduct. Furthermore Applicant’s evidence that she worked remotely from home and was teaching online between June and October 2021, and that her employer never indicated that it has a problem with this, remains unchallenged.

[66] Regarding the allegation that applicant attempted to mark exams while on sick leave, I accept that this could constitute grounds to institute disciplinary proceedings for misconduct and potentially result in a fair dismissal. But in respect of this allegation too, respondent presented no evidence, and there is no suggestion that disciplinary proceedings were ever instituted for this alleged misconduct against applicant.

[67] As regards applicant’s refusal to take the Covid19 vaccine, I accept that such refusal could constitute fair grounds for dismissal either on grounds of incapacity, alternatively operational requirements, alternatively misconduct, after following the correct procedures prescribed by the LRA.

[68] However, in this regard too respondent made no attempt to commence any form of processes, be it for incapacity, operational requirements or for misconduct, against applicant and also presented no evidence in this regard at this arbitration.

[69] Based on the limited evidence available to me, it is impossible to conclude that there were fair grounds for respondent to dismiss applicant on any of the grounds alleged. Respondent bears the onus to prove the fairness of the dismissal and it failed to do so.

[70] Furthermore our courts have held that where the employment relationship between an employer and an employee who is employed in terms of a fixed term contract, is not really severed because the fixed-term contract had expired, but for other reasons (i.e. alleged misconduct, poor work performance or operational requirements), it is not fair for the employer to cause the employment relationship to end for one set of reasons (i.e. alleged misconduct or operational requirements) while claiming that the reason why the employment relationship has ended, was as a result of the fact that the fixed term contract had expired.
[71] Employers are therefore not allowed to use the expiry of fixed term contracts as a device to terminate the employment relationship whereas the true reason for the employee not being re-employed, is something else. It would not be fair to allow employers to do this, because then employers will be allowed to evade the provisions of labour legislation which prescribes how and under what circumstances employees may be dismissed based on incapacity, misconduct and operational requirements. If the real reason why the fixed term contract of an employee is not being renewed relates to her misconduct or incapacity, then fairness requires that she must be advised of the objections against her further employment and she must be given the opportunity to be heard in this regard.

[72] I am not suggesting that where a fixed term contract employee commits misconduct or performs poorly, her contract must be renewed until her incapacity or disciplinary proceedings are finalized. It would be absurd to expect that because if that were so, fixed term contract employees who have no reasonable expectation of further employment could simply commit misconduct or perform poorly and then drag out their incapacity or disciplinary processes in order to remain employed for longer than originally reasonably expected.
[73] But one would at least expect the employer to inform the employee of the complaints of misconduct or incapacity against her and give the employee an opportunity to be heard about the complaints against her before the decision is made not to renew her contract. In this case no such attempts were made.

[74] In the circumstances it cannot possibly be accepted that the employer has presented a credible reliable case to justify the inference that there were fair reasons for the dismissal of the applicant. My finding is therefore that the dismissal was substantively unfair. Since applicant was not heard before her dismissal, the dismissal was also procedurally unfair.

    Conclusion in relation to  the fairness of the dismissal

[75] I therefore find that the dismissal was substantively and procedurally unfair.

VIII RELIEF
[76] I am of the view that it would not be reasonably practicable to reinstate applicant. She was never employed indefinitely but on fixed term contracts. Her last contract expired in December last year. It is now already July and all contract posts in public schools would by now already be filled. Furthermore, to reinstate applicant may indeed create further disputes in terms of section 186(1)(b). I am therefore of the view that compensation is an appropriate remedy. In his closing heads of arguments applicant’s attorney also just asked for compensation.

[77] Applicant asked for compensation equivalent to 12 months’ salary and said that this request is based on the fact that her last contract was for 12 months. In terms of section 194 of the LRA I am entitled to award compensation which is just and equitable in all the circumstances, but may not order compensation which is more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal. This is a discretion which must be exercised judicially. The LRA employs remuneration purely as a means of capping the amount of the award.
[78] From my own experience over the last 20 years, which includes reading awards of other arbitrators in quality control, I can say that it is very rare that compensation equivalent to 12 months’ salary is ever awarded to an applicant in an unfair dismissal dispute. Compensation equivalent to 12 months’ salary is generally reserved for extremely serious cases with aggravating circumstances, where for example there was also an element of discrimination or where the employee was employed by the same employee for many years.

[79] In general it can be said that where a dismissal is only procedurally unfair, the compensation that is awarded by commissioners on average ranges from a few days to 3 months maximum, and where a dismissal was not only procedurally unfair but also substantively unfair, the average compensation that is generally awarded by commissioners ranges from 5 months to 7 months with 6 months’ compensation being the most common award made by commissioners. This has also been confirmed by academics who have undertaken studies in this regard. As Mischke points out:

The impression gained from considering the compensation ordered is that most awards hover around the 5 to 7 months’ mark, with 6 months’ compensation emerging as the hands-down favourite. It almost seems as if six months’ compensation is viewed as being just and equitable as a rule of thumb. Six months’ compensation is a convenient comfort-zone.

[80] From reading arbitration awards, I can confirm that these are my observations as well. I am not suggesting that these are rigid inflexible rules that cannot be departed from. But it is good for arbitrators to strive towards consistency when awarding compensation and to keep the general trend of awards of compensation in mind.

[81] An arbitrator must always exercise his discretion based on the peculiar facts of each case, but in determining a just and equitable amount of compensation, awards of compensation in comparable cases can serve as a guideline in order to achieve consistency which in itself is an element of fairness.

[82] Compensation awarded in terms of the LRA is not an award of damages in the contractual sense. Whilst patrimonial loss (actual financial loss suffered) is an important factor to take into account when determining just and equitable compensation in terms of the LRA, compensation in terms of the LRA is intended to remedy both patrimonial and non-patrimonial loss. In relation to non-patrimonial loss the compensation is in the form of a solatium, meaning solace money to salve injured feelings and sentimental loss for the loss of a right, or put differently, to compensate for the injuria of being treated unfairly. In determining compensation for an unfair dismissal, an arbitrator should consider factors such as:

• the employee’s remuneration and benefits at the time of dismissal;
• the employee’s length of service;
• whether the dismissal was both substantively and procedurally unfair;
• the nature of and reason for the dismissal;
• whether the employee has secured alternative employment and if so, when and at what rate;
• the employee’s prospects of future employment;
• the loss suffered by the employee;
• the degree of humiliation and indignity suffered by the employee;
• the extent of unfairness of the dismissal;
• benefits already given to the employee upon his dismissal;
• the employer’s financial position, which in this case is a municipality who has a limited budget funded by tax payers;
• awards of compensation in comparable cases, which can be used as a guideline.

[83] In determining an amount of compensation that is just and equitable I take into account the following considerations:

• Compensation awarded by arbitrators and the Courts in similar cases and comparable cases;

• Applicant was never employed indefinitely;

• Applicant worked for respondent continuously between July 2019 and December 2021 on various fixed term contracts;

• Applicant’s monthly salary was R33 802 and I am not permitted to award compensation which is more than 12 months’ salary;

• Applicant was only informed on 10 December 2021 that her contract would not be renewed at the end of 2021;

• The last fixed term contract which ended on 31 December 2021 was a 12 months contract, and the previous three were six month contracts;

• Applicant has not yet secured alternative employment and is still unemployed;

• The purpose of compensation is not only to compensate the employee for actual financial loss but also to salve injured feelings because of unfair treatment;

• The purpose of compensation is not to punish the employer, but merely to compensate the employee.

• Even employees who have been employed by the same employer for many years on indefinite terms, rarely ever receive 12 months’ compensation for substantively unfair dismissal and the average compensation awarded is generally in the region of 5 to 7 months, unless there are serious aggravating circumstances;

• As regards the quantum of compensation, neither the fact that an employee’s last fixed term contract was for 12 months nor the fact that the employee had a reasonable expectation of a further 12 months contract, can place her in a better position than that of permanent employees who has been employed for many years;

• There was nothing exceptionally serious about applicant’s dismissal and no serious aggravating factors are present which can distinguish her case from that of the average unfair dismissal case where the average compensation for substantive unfairness is generally in the region of 5 to 7 months’ compensation;

• Applicant’s dismissal was not only substantively unfair but also procedurally unfair and she needs to be compensated for that as well;
[84] Having taken all these factors into account, I am of the view that an amount of R250 000 (which is slightly more than 7 months’ salary) is just and equitable compensation in all the circumstances.
AWARD
In the premises I make and publish the following order and award:

The applicant did not have a reasonable expectation of indefinite employment as envisaged in section 186(1)(b) of the LRA.
The applicant did have a reasonable expectation of further fixed term employment and when her contract was not renewed after 31 December 2021, this did constitute a dismissal as envisaged in section 186(1)(b) of the LRA.
Applicant’s dismissal was both substantively and procedurally unfair.
Respondent is directed to pay to applicant an amount of R250 000 as compensation, subject to the following conditions:

4.1 In terms of Interpretation Note 26, issued by SARS on 30 March 2004, compensation awarded under the LRA, is subject to income tax;

4.2 Disputes between the parties as to whether or not the employer must indeed deduct income tax from this compensation, and if so how much, must be referred to SARS for a tax directive;

4.3 The aforesaid amount of R250 000 (less income tax and other statutory deductions) must be paid to applicant by 31 August 2022;

4.4 In the event that the compensation is not paid by 31 August 2022, interest thereon at the prescribed rate of legal interest will accrue from 31 August 2022 to date of payment;