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01 November 2024 – ELRC161-23/24EC

Case Number: ELRC161-23/24EC
Commissioner: Henk Jacobs
Date of Ruling: 30 October 2024

In the matter between

NEHAWU obo Sangotsha and 2 Others
(Applicant)

And

Department of Higher Education / EC Midlands TVET College
(Respondent)

Union/Applicant’s representative:

NEHAWU

Mr M Hote

Telephone:
Telefax:
E-mail: mzimkhulu@emcol.co.za

Respondent’s representative:
Respondent’s address: Mr L Mphati

Telephone:
Telefax:
E-mail: lungisa@emcol.co.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair dismissal dispute, referred in terms of section 191(5)(a) of the Labour Relations Act 66 of 1995 (the LRA), was held 25 October 2023, 20 November 2023, 28 February 2024, 19 April 2024, 01, 30 August 2024 and 07 October 2024.

2 The Applicants, Ms Sangotsha, Ms Masebeni and Mr Smith were initially represented by Mr Ngqunwana, an official from the National Union of Public Service & Allied Workers (NUPSAW). On 01 August 2024, the Applicants appointed Mr Hote, an official from the National Education, Health and Allied Workers Union (NEHAWU) to represent them. The Respondent, the Department of Higher Education Eastern Cape, was represented by Mr Mpati, an Employee Relations Officer employed by the Respondent.

3 The hearing was held in English and IsiXhosa and was digitally recorded.

4 The parties requested and agreed to deliver their heads of argument on or before 14 October 2024.

Issue to be decided

5. The issue to be decided is whether the Applicants were dismissed when their fixed term contracts were not renewed, or when they were appointed on less favourable conditions, and if so, whether the dismissal of the Applicants was procedurally and substantively fair, and if not, to determine the appropriate remedy in terms of sections 193 and 194 of the Labour Relations Act 66 of 1995.

Background to the matter

6. The Applicants were employed on various fixed term contracts from 2018 to 2023 and earned respectively a basic salary of R15 388.75 per month for the 2023 contract.

7. The Applicants referred a dispute to the ELRC which was conciliated, and a certificate of non-resolution was issued, whereafter the Applicants filed a request to have the matter arbitrated.

8. In terms of issues in dispute, the Applicants are of the view they should be employed permanently and that the termination of their fixed terms contracts constitute a dismissal in terms of section 186(1)(b)(ii) of the LRA.

9. The Applicants sought to be reinstated retrospectively to the same terms and conditions that existed prior to their dismissal for an indefinite period.

10. The parties submitted bundles of documents that they would rely on during the proceedings. The parties were given an opportunity to peruse these documents and to raise any issues related to the documents. The parties accepted the documents into record to the extent that the documents are what they purported to be.

Survey of evidence

11. This is a summary and does not reflect all of the evidence and arguments heard and considered in reaching a decision.

Applicants evidence

12. Ms Masebeni testified that she started working for the Respondent since 2018 to 2023 on various fixed term contracts, she believes that she was employed on a permanent basis. She was placed on various fixed terms contracts, each with a start and end date, and there was no reason for the Respondent to employ her on various fixed term contracts.

13. She was employed at the Charles Goodyear campus within the Civil Engineering Department and was teaching brick laying, plastering and mathematics, she was the only one that could teach brick laying. She is a qualified artisan and holds a diploma in civil engineering, while the other lecturers only hold a diploma.

14. Ms Masebeni further testified that the fixed terms contracts do not state why it was fixed and she did not receive a letter that her contract will come to an end. She expected to receive a call as her manager always said that they do not need to worry, they will come back the next year. She only heard that classes had commenced during 2023, and she was not called back.

15. During January 2023, she reported for duty without signing a contract and at the end of January 2023 she received her salary, she noticed a reduction in her salary, she was then issued a new contract and noticed the reduced salary and working times.

16. Under cross-examination, Mr Masebeni stated that her contract was terminated end of April 2023 and that she never received any letters for her tenure that any of her contracts would come to an end or be terminated. She did not report for duty in the second trimester as she was waiting for a call from her manager who always called her before she returned to work.

17. Ms Masebeni also confirmed that all her contracts had a start and end date but do not give any reason why it is has a fixed term. On page 73 of the Respondent’s bundle in paragraph 3.1 the duration of Ms Masebeni’s contract is stipulated as 25/01/2023 and shall terminate on 30/04/2023.

18. Page 80 of the Respondent’s bundle in paragraph 20 of Ms Masebeni’s contract reads as follows: “The employee’s appointment in terms of this contract is subject to a certain number of students registering at the employer. Should the number drop for whatever reason during the duration of this contract resulting in the employee’s services no longer being required, this contract will be terminated for this reason and in accordance with paragraph 19 above.”

19. Ms Sangotsha testified that she has been employed by the Respondent on various fixed term contracts since 2014 and her last contract was ended 30 April 2023 and was not renewed. She went to enquire and was looking for a letter of termination from the Respondent. She was teaching motor mechanics which was ongoing.

20. During May 2023, she was called back and was offered a different contract of employment at the Occupational School for a period of three years. This contract of employment is less favourable to her because she can only take leave during December when everyone is on leave, the contract is renewed yearly based on Seta funding. The new contract required her to work longer hours, and she wish to be reinstated to her previous contract of employment.

21. Under cross-examination, Ms Sangotsha confirmed that her employer for the Charles Goodyear Campus and her current contract is the same employer. Her current contract’s remuneration is substantial more than her previous contract.

22. Mr Smith testified that he was employed by the Respondent during 2012 and was teaching specialisation in fitting and machining. The Respondent after some years appointed another lecturer who attended his classes and in 2023, after the first trimester his contract was not renewed, and the position was filled by the new lecturer that was appointed.

23. Mr Smith further testified that he is currently employed on a permanent basis at the Department of Basic Education at a lower salary scale as what he earned at the Respondent.

24. Under cross-examination, Mr Smith stated that he was not aware that the Respondent offered him a new contract during 2023.

Respondent’s evidence

25. Mr Twalo testified that he is employed by the Respondent as the Campus Manager and that the Applicants were working under him at a project called 191. The workload reduced and therefore they had to cut the hours worked by the Applicants, hence the reduction in salary in the 2023 contract for the first trimester.

26. When they do subject allocation, they will fill the permanent lecturers’ schedules and then recruit contract lecturers. Ms Masebeni’s contract was not renewed based on the number of subjects left to be allocated. The levels she was teaching was phased out as she was teaching N1 and N2.

27. After every trimester, she would enter a new contract for three months should the need arise.

28. Ms Sangotsha’s contract was not renewed due to a reduction in the number of students who enrolled for the program. She was then re-employed on a three-year fixed term contract at the Brickfield campus by the same employer as before and that the latter contract was more favourable than the previous contract as it was for three years instead of three months.

29. Mr Twalo further testified that Mr Smith was offered a new contract which he declined based on him accepting employment on a permanent basis at the Department of Basic education.

30. Under cross-examination, Mr Twalo confirmed that when he allocated workloads to staff, he first fill the workload for the full-time staff and then appoint the contract staff based on what is left. This decision was taken during the 2023 financial year based on a reduced budget and having to many contract lecturers.

31. Mr Twalo also stated that he issued termination letters to the staff after each contract came to an end. He called Mr Smith who came to see him at his office, Mr Smith indicate he cannot accept the offer as he received permanent employment.

32. Mr Blani testified that circular 30 of 2020 came about because the institutions would appoint people to posts that were not authorised. The Applicants’ contracts were not renewed based on the operational requirements of the Respondent.

33. Under cross-examination, Mr Blani confirmed that the Applicants could not migrate to permanent posts as the level 1 post were filled to the brim. Ms Sangostha was not entitled to annual leave when she was appointed on the trimester fixed term contracts, but she is entitled to annual leave based on her new three-year contract, hence the new contract provided better terms and conditions that the previous contract she had.

Analysis

34. In accordance with section 192 (2) of the LRA, the employee bore the onus of proving that he had been dismissed. The onus then shifts to the employer to prove that such dismissal was nevertheless fair.

35. In this instance, the Applicants referred an alleged unfair dismissal dispute in terms of section 186(1) (b)(ii) of the LRA and states the date of dismissal as 05 May 2023. Section 186(1)(b)(ii) reads as follows: “Dismissal means that an employee employed on a fixed-term contract of employment reasonably expect the employer 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”

36. In Sindane v Prestige Cleaning Services (JS 594/07) [2009] ZALC 156; (2010) 31 ILJ 733 (LC) (handed down on 28 August 2009) the LC held that a fixed-term contract terminates by operation of law at the end of its term. Such termination does not constitute a “dismissal”.

37. In IMATU and another v City of Johannesburg Metropolitan Municipality and others (JA 49/2013) [2014] ZALAC 3; [2014] 6 BLLR 545 (LAC) (handed down on 4 March 2014) the LAC confirmed that the onus was on the Employees to prove that they had a reasonable expectation that the contract would have been renewed and that a bona fide error by the Employer would not give Employee reasonable expectation of extension.

38. The onus to establish a dismissal in this instance rest on the Applicants to proof that a reasonable expectation exists to be employed for an indefinite period.

39. The Applicants’ evidence in short was that they were employed on numerous fixed terms contracts for periods of about 3 months from as early as 2012, 2014 and 2018 respectively. After each trimester they would break with the students and would wait for a call from their manager to return the next semester on a new contract. This continue for the period indicated hereinabove until 2023 when their contracts were not renewed, this created an expectation that they are employed for an indefinite period.

40. It would be appropriate to treat the three Applicants individually. Ms Sangothsa is currently employed by the Respondent on a three-year fixed term contract that would expire during 2026. Ms Sangotsha’s claim is that she was placed on a contract with less favourable terms than her previous fixed term contract, and thus, constitutes a dismissal. For this claim to stand, she should have declined the alleged less favourable contact to claim dismissal, she did not and is currently employed.

41. Even if one argue that it is not the case that she should have declined the less favourable contract to claim an alleged unfair dismissal dispute, I cannot agree with Ms Sangothsa that her new contract was on less favourable terms. She made reference to her semester breaks as a benefit, albeit those breaks were unpaid as the contract would have come to an end. Her current contract makes provision for paid annual leave which is a benefit. Her salary scale on both contracts is that of a level 1 lecturer.

42. On that basis, Ms Sangostha failed to proof that she was dismissed.

43. Now turning to Mr Smith, there are two contradicting versions regarding the renewal of Mr Smith contract of employment. Mr Smith’s evidence was that he was not aware of the offer to renew his contract and that he has secured employment elsewhere. It must be stated that Mr Smith was not fully involved and present during the arbitration proceedings and elect when to attend, and when not to attend. His evidence presented during the proceedings was like his attendance, he was evasive and did not answer questions directly, on that basis, I find that Mr Smith evidence should be treated with caution.

44. Mr Twalo was direct, and his response was clear that he personally saw Mr Smith regarding the renewal of his fixed term contract which was declined by based on his permanent appointment by the Education Department.

45. If one need to have regard to Mr Smith declining the offer, it will simply imply that he did not wish to be placed on a new fixed term contract with the Respondent. To claim that there was an expectation to be appointed permanently by the Respondent would simply means that the Respondent had to make a promise in this regard.

46. There was no evidence presented throughout the proceeding by any of the Applicants that they were promised a permanent position to create an expectation. The Applicants in argument made reference to section 198B (5) of the LRA that regulates employment based in fixed term contracts that the Applicants should be deemed to be for an indefinite period. Section 198B(1)(b) reads that this section does not apply to employees earning in excess of the threshold prescribed by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act.

47. The documents submitted by the Applicants contained copies of all their fixed term contracts respectively, and in terms of all those contracts prior the January 2023 contract, they earned above the threshold. On that basis, they cannot rely on the deeming provision in terms of section 198B (50) of the LRA, the only contract then before me is the contract dated 25 January 2023 to 30 April 2023.

48. The 2023 contract complied with the provisions of section 198B as it had a start and end date and was based on the number of students enrolled for the specific curriculums. On that basis, Mr Smith failed to proof that he had a reasonable expectation to be employed permanently, and therefore, failed to proof the existence of a dismissal.

49. Now turning to Ms Masebeni, she was the only Applicant who was not called back to be placed on a new fixed term contract. It would be important to consider the specific wording of Ms Masebeni’s contract as a point of departure. It is common cause that the Applicants relied on the non-renewal of the 2023 contract as the date of dismissal to substantiate their claim.

50. Page 73 of the Respondents bundle me Masebeni’s contract reads under clause 1.1 that the employee is employed as a Temporary Lecturer and clause 3.1 states that the employment relationship shall commence on 25 January 2023 and shall terminate on 30 April 2023.

51. This means that the contract define the position as a temporary lecturer for a specific period. Page 80 under clause 20, the contract states that the employee’s appointment in terms of this contract is subject to a certain number of students registering at the employer. Should student numbers drop for whatever reason during the duration of this contract resulting in the employees’ services no longer required, the contract will be terminated.

52. Clause 20 then constitutes an automatic termination clause which would need to be scrutinised should the Respondent relied on such a clause for terminating the contract. In this instance, the Respondent did not rely on such clause.

53. The same principles would apply to Ms Masebeni with regards to her contracts prior the January 2023 contract that she earned above the threshold and therefore cannot relay on section 198B of the LRA, save to state that the January 2023 contract the Applicant earned below the threshold.

54. There was no evidence presented during the proceedings that the Applicant was made any promises to be employed on a permanent basis, therefore, no reasonable expectation for permanent employment was created.

55. Much was made under cross examination and argument about circulars and policies, these were never presented through the Applicants as evidence that it could have created an expectation of permanency, these are discussions at management level and was not known by the Applicants at the time.

56. I find it appropriate to make the following award.

Award

57. The Applicants, Ms Sangotsha, Ms Masebeni and Mr Smith, failed to proof that they were dismissed by the Respondent, East Cape Midlands TVET College Uitenhage.

58. The ELRC does not have jurisdiction to hear the matter.

59. The Applicants are not entitled to any relief.

Signature:

Commissioner: Henk Jacobs