IN THE ARBITRATION UNDER THE AUSPICES OF THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN

Arbitrator: Arthi Singh-Bhoopchand
PSES 568-04/05 WC

In the matter between:-

S.T.E. Lewis Applicant

And

Western Cape Education Department Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing was held at the offices of the Western Cape Education Department (WCED) in Cape Town on the 28 February 2005. The final closing arguments were submitted to me on the 18 March 2005. Mr Eben Simons, an attorney represented Mrs Lewis . M/S Zanele Mazosiwe represented the WCED.

The representatives each handed in a bundle of documents which were admitted into evidence.

BACKGROUND AND MATTERS NOT IN DISPUTE

Mrs Lewis was employed as an educator at Kylemore High School. She commenced her employment at the school on the 1 April 2000 in a Governing Body position. Since July 2001, the WCED took over the funding and financing of this position. The WCED thus became the employer since July 2001 and Mrs Lewis was employed in a contract position. The initial contract was for a six month period which ended in December 2001. The contract was thereafter renewed for a period of 12 months which ended in December 2002 and then renewed again for a further 12 months which ended in December 2003. At the beginning of 2004, the post that Mrs Lewis held was advertised for a permanent position. At this point Mrs Lewis’s contract was renewed for a period of six months which ended on 30 June 2004. Mrs Lewis applied for the permanent position. Prior to shortlisting for the post being finalised, Mrs Lewis contract was again renewed for the period 1 July 2004 until 31 December 2004. Mrs Lewis was shortlisted for the post, but she was not nominated .M/S Bastiaan was nominated for the position. Mrs Lewis lodged a grievance with regard to the selection process. It was decided at the grievance meeting that the selection process had to be repeated from shortlisting.

During November 2004, Mrs Lewis commenced maternity leave. Mrs Lewis’s contract was not renewed for any period for the year 2005. The Governing Body appointed M/S Bastiaan on a fixed term contract for a period of three months commencing on 1 January 2005, to the position the Mrs Lewis had occupied.

ISSUES IN DISPUTE

I was asked to decide whether failure to renew Mrs Lewis’s contract constitutes an automatically unfair dismissal related to her pregnancy in terms of Section 187(1)(e) or whether it constitutes an unfair dismissal in terms of Section 186(1)(b) of the Labour Relations Act 66 of 1965, and if so to decide on the appropriate relief.

SURVEY OF FACTS AND EVIDENCE

I shall confine myself to salient points raised in evidence which I consider relevant to making a finding.

WCED presented the evidence of Adam De Vries, the headmaster of Kylemore High School. Under cross examination De Vries testified that he had always been satisfied with the work performance of Mrs Lewis and that he had indicated to the circuit manager that everything should be done to keep Mrs Lewis in the post . He testified that he was an individual in a bigger field and that decisions on appointments did not rest solely on him regardless of his personal opinion. The Governing body had decided to appoint M/S Bastiaan in a substitute position until the 15 March 2005.Due to logistics no contract had been signed, but he confirmed that her tenure would end on 15 March 2005. He testified that at a meeting with the circuit manager and Governing Body, it was decided that Mrs Lewis should be handed the necessary forms to sign in order that she may claim maternity leave until 15 March 2005. Mrs Lewis confirmed during her testimony that she was indeed handed the forms A2 which would enable her to claim maternity leave for three months. When questioned about what would happen after 15 March 2005 De Vries testified that for the sake of continuity, M/S Bastiaan would be nominated for a contract position .He also testified that if Mrs Lewis had not been pregnant, the SGB would still have appointed M/S Bastiaan to the contract position because she was the nominated candidate for the permanent post. It is common cause, however, that the selection process has to be repeated and that M/S Bastiaan may very well not be nominated again.
He testified that if a dispute had not been lodged with regard to the filling of the permanent post, the effective date for the commencement of the permanent post would have been 1 January 2005.

Mrs Lewis testified that she was a dedicated educator and that she had continued to perform certain tasks while she was on maternity leave and also at a previous time when she had gone on sick leave to undergo surgery. The headmaster, as well as the circuit manager were impressed with her work She testified that the headmaster had indicated to her at the beginning of 2004 that she would be appointed to the post. She was aware that her contract position ended on the 31 December 2004. However she had expected to be appointed to the permanent position as her contract position had been renewed several times. When the dispute with regard to the filling of the permanent post was lodged and a decision was taken that the selection process be repeated, she expected her contract position to be renewed. She was told at a grievance meeting that she should be appointed for three months so that she could at least claim maternity benefits. She received the necessary form A2 that would enable her to claim maternity benefits, in February.

ANAYLIS OF EVIDENCE AND ARGUMENT

One of the issues that I have been asked to determine is whether failure to renew Mrs Lewis’s contract amounts to an automatically unfair dismissal in terms of Section 187 of the Labour Relations Act 66 of 1995. The WCED did not raise the question of jurisdiction of this forum to make a finding in this regard. However I must be guided by the fact that adjudication of automatically unfair dismissals falls under the jurisdiction of the Labour Court. Accordingly, my ruling in this regard is that this forum does not have the necessary jurisdiction to make a finding on this issue.

I shall proceed to consider, however, whether failure to renew the contract amounted to an unfair dismissal in terms of Section 186(1)(b) of the Labour Relations Act 66 0f 1995. This section states that:

“Dismissal means that-an employee 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 ;

Mr Simons presented argument on the issue of reasonable expectation. In his view the fact that Mrs Lewis’s contract was continually renewed and her evidence that she had the support of the staff and learners, created a reasonable expectation for her. He referred to a Labour Court ruling which states that the purpose of Section 186(1)(b) is to prevent the unfair practice of keeping an employee on a temporary basis without employment security until such time as the employer wants to dismiss the employee without complying with the obligations imposed by the Labour Relations Act in respect of permanent employees. Mr Simons then went on to point out, quite correctly, that this dispute does not revolve the permanent post. It is common cause that the selection process for the permanent post is going to be repeated. The issue is whether Mrs Lewis had a reasonable expectation to have her contract position renewed pending the outcome of the selection process for the permanent post.

The WCED argues simply that Mrs Lewis did not have any reasonable expectation because she was aware that her contract would end on the 31 December 2004. She was also aware that the position that she occupied was being advertised for a permanent post and that she would have an opportunity to compete for the post.

The actions of the School Governing Body in appointing Mrs Bastiaan to the post until 15 March 2005, and then subsequently apparently arranging for the renewal of Mrs Lewis’s contract from 1 January 2005 to 15 March 2005 in order that she could claim maternity benefits, is somewhat confusing. WCED insists that her contract ended in December 2004, yet the Governing Body went on to ensure that she was retained as an employee in order to claim maternity benefits. The headmaster’s explanation for this is that this was done on humanitarian grounds.

However, the legal consequence of this scenario is that if all the necessary forms that have been handed to Mrs Lewis are completed, she will in effect have been employed until March 2005 . The headmaster, Mr De Vries testified that for the sake of continuity Mrs Bastiaan would be maintained in the post because she was the nominated candidate. However, it must be borne in mind that the selection process to nominate a candidate has to be repeated, which in effect means that M/S Bastiaan is not the nominated candidate at this stage. Mr Simons was correct in arguing that if it was the intention of the school governing body to maintain continuity to the post, albeit the temporary post, then it ought to have appointed Mrs Lewis . It does appear that the governing body is pre-empting the re-nomination of M/S Bastiaan to the permanent post with the hope of maintaining continuity for the year 2005.

However, the issue is not one of continuity but of reasonable expectation. Mrs Lewis’s contract was renewed at least six times . She was aware that her contract would expire on 31 December 2004 and that the post was being advertised for a permanent position. She was the candidate that was re-appointed several times as long as the temporary post was available. Despite the post being advertised for a permanent post, a permanent appointment has not been made. It is not unreasonable for Mrs Lewis to have expected to be re-appointed to the temporary position in the absence of a permanent appointee.
Accordingly, my ruling is that the her dismissal is unfair in terms of Section 186(1)(b) of the Labour Relations Act 66 of 1995.

Mrs Lewis has requested that I appoint her to the position. I have no authority to do so . I must also be mindful of the rights of other parties who may be prejudiced by any award made herein.

On the question of costs the WCED argued that costs do not automatically accrue to the successful party. Section 16(3)(c)(d) of the ELRC constitution stipulates that each party to a dispute must pay its own costs.

For reasons canvassed above, my award is as follows:

1. The WCED pays to Mrs Lewis compensation being the equivalent of three months salary.
2. Each party to pay its own costs.

ARTHI SINGH-ARBITRATOR

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 568-04/05 WC
APPLICANT S T E LEWIS
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE UNFAIR LABOUR PRACTICE
ARBITRATOR A SINGH
DATE OF ARBITRATION 28 FEBRUARY 2005
VENUE CAPE TOWN

REPRESENTATION:

APPLICANT MR E SIMONS
RESPONDENT MS Z MAZOSIWE

AWARD:

1 The WCED pays to Mrs Lewis compensation being the equivalent of three months salary.
2 Each party to pay its own costs.