In the matter between

I Z MKHIZE Applicant

And

GAUTENG PROVINCE DEPARTMENT OF EDUCATION Respondent

ARBITRATOR: M NAIDOO

HEARD: 7 JULY 2016 AND 1 AUGUST 2016

DELIVERED: 12 AUGUST 2016

AWARD

Details of hearing and representation
[1] The arbitration proceedings took place on 7 July 2016 and 1 August 2016 at the offices of the respondent, Johannesburg North District Office, 2 Reserve Street, FNB Building, 7th Floor Boardroom, Braamfontein. The proceedings were mechanically recorded. The applicant, Ms I Z Mkhize, was present and represented by Mr A Ramkussan, an attorney of the law firm J Juglal Incorporated. The respondent, the Gauteng Department of Education, was present and represented by Ms E Magadla, its labour relations official. The proceedings were conducted in English. Mr T Maluleke assisted with interpretation services.
Issues to be decided
[2] The issues to be decided in this matter are: whether the applicant was dismissed as contemplated in section 186(1)(b)(ii) of the Labour Relations Act of 1995 (“the LRA”); if so, whether the dismissal was procedurally and substantively fair, as contemplated in section 188(1) of the LRA and what appropriate remedy to award in terms of section 193(1) of the LRA in the event of a finding in favour of the applicant that she was unfairly dismissed.
Background to the issues in dispute
[3] The respondent implemented a project called the Dinaledi Project (“the DP”) in 2008. The project allowed the respondent to recruit mathematics (“maths”) and physical science educators to be deployed nationally. The applicant was employed by the respondent as one of several such educators and deployed to the Emshokantambo Secondary School (“the ESS”). She commenced her employment at the ESS on 20 February 2008. She entered into several fixed term written contracts with the respondent until 31 December 2015. The applicant averred that she was notified by the principal of the ESS, on the last day of the school term, namely 15 December 2015, that her contract will not be renewed beyond 31 December 2015 as the DP had come to and end.
[4] On 28 January 2016 the applicant referred an unfair dismissal dispute with the Education Labour Relations Council (“the ELRC”). The ELRC Form E1 was sent to the respondent by fax on 29 January 2015. Panelist M A Hawyes conciliated the dispute on 18 February 2016. The dispute remained unresolved. The conciliator issued an ELRC Form E3 certificate accordingly.
[5] On 11 May 2016 Commissioner C Havenga issued a dismissal ruling in default of the applicant. On 1 June 2016 Commissioner Havenga rescinded his ruling of 11 May 2016. The ELRC set the dispute down to be arbitrated on 7 July 2016. The arbitration commenced on 7 July 2016 and remained part heard until it was completed on 1 August 2016.
Summary of the evidence and arguments
[6] The parties’ representatives made submissions in opening statements. The parties submitted two bundles of documents. The applicant, Mr Richmond, Mr Joseph Ramotsepa Mashishi, Mr Stephen Nemakhavhani and Ms Nelisiwe Mashazi testified. The parties’ representatives made submissions in closing arguments.

Opening statements
[7] Ms Magadla submitted that the respondent disputed that the applicant was dismissed. She averred that the applicant’s contract of employment was terminated by notice. She asserted that the applicant was employed on a series of fixed term contracts from 20 February 2008 until 31 December 2015. Ms Magadla explained that the Minister of Education (“the minister”) had initiated the DP in 2008, in terms of which public schools nationally were invited to apply for the appointment of additional maths and physical science educators. The respondent administered the project by recruiting these maths and physical science educators and deployed them to the various schools. The applicant was employed within this capacity and deployed to the ESS. The minister had not anticipated the end date of the DP. The respondent implemented the project annually on the basis of an approved annual budget. The minister granted the annual budgets for the DP from the inception of the DP until the end of 2015. No such budget was approved since the beginning of 2016.
[8] The grant of each annual budget for the DP triggered the renewal of the applicant’s annual fixed term contracts. Ms Magadla explained that in 2015 the minister had terminated the DP and replaced it with another similar project with the exception that technology, as a subject, was added. The new project was called the MST Conditional Grant Project (“the MSTP”). Ms Magadla stated that the MSTP had not been rolled out as no budget had been granted for its implementation. Once such budget is granted the respondent will advertise the recruitment of the additional posts and deploy the successful applicants to the targeted schools. This is how the applicant was employed in the DP and she may apply for such an additional post when the MSTP is rolled out and implemented.
[9] Mr Ramkussan submitted that the applicant was dismissed as contemplated in section 186(1)(b)(ii) of the LRA as she expected her fixed term contract to be made permanent. He pointed out that the applicant was employed in terms of written fixed term contracts as tabulated below:
NO PERIOD
1 2008/02/20 – 2008/03/31
2 2008/04/01 – 2008/06/30
3 2008/07/01 – 2008/09/30
4 2008/10/01 – 2008/12/31
5 2009/01/01 – 2009/03/31
6 2009/04/08 – 2009/06/30
7 2009/07/01 – 2009/12/31
8 2010/01/01 – 2010/12/31
9 2011/01/01 – 2011/12/31
10 2012/01/01 – 2012/12/31
11 2013/01/01 – 2013/12/31
12 2014/01/01 – 2014/12/31
13 2015/01/01 – 2015/01/31

[10] Mr Ramkussan explained that in November 2013 the applicant had applied to the respondent to be absorbed as a permanent employee in her post. The respondent did not revert to her on whether her application was approved or not. Mr Ramkussan asserted that the applicant expected her contract to be renewed because her contract was renewed for the last seven years.
[11] Mr Ramkussan stated that the applicant sought reinstatement as a permanent educator. He (Mr Ramkussan) explained that the applicant was entitled to be absorbed into the said post as she had been employed in the post as a temporary educator for more than three months.
[12] Ms Magadla responded that the applicant was employed as a temporary educator in an additional post. She (Ms Magadla) explained that, had the applicant been employed as a temporary educator in a substantive post; then she was would indeed have qualified to be absorbed as a permanent educator in the said substantive post. Ms Magadla conceded that the applicant had applied to be absorbed as a permanent educator; but asserted that the applicant did not qualify to be absorbed because she had not occupied a substantive post for three months during her fixed term contracts since her employment in 2008.
[13] Ms Magadla pointed out that Circular 01/2013 issued by the Head of Department (HOD) on 16 September 2013 (“Circular 01/2013”) governed the respondent’s conduct in not approving the applicant’s absorption application. She referred to clause 9.2 and 9.5 in this regard which stated:
“Absorption of Contract (Temporary) Educators
…
9.2 CS Educators appointed in a contract (temporary) capacity cannot be absorbed where there is no vacant substantive post on the establishment of 2014, and must be advised of the termination of their appointment effective 31 December 2013
…
9.5 Temporary personnel will be appointed/absorbed into their current posts at their current institutions, provided they meet the requirements as per the Employment of Educators Act, 1998, as well as the curricular needs of the institution.
…”

[14] It is also important, at this stage, to make reference to clause 9.3 of Circular 01/2013, which states:
“9.3 Educators will be absorbed if there is a vacant substantive post available on the post establishment of 2014, and have remained in the service of the Department as a temporary or substitute personnel after the approval of this circular. Qualifying educators are those who are appointed in a temporary capacity and have been continuously employed for a period of at least three (3) months in vacant substantive posts, growth posts, Dinaledi posts, against Promotional Posts and also substantive posts in the Gauteng Department of Education between the periods of 01 January 2013 to 31 December 2013.”

[15] Ms Magadla averred that there were no vacant substantive posts in the ESS to absorb the applicant as a physical science permanent educator. Ms Magadla also averred that the applicant did not qualify to be appointed to any substantive vacant posts as the applicant was employed in a Dinaledi post, which was an additional post. She explained that the two such additional posts were approved for the ESS.
[16] There were six other schools approved, with two additional posts each that benefited from the DP. In the Gauteng province, as a whole, there were 102 schools approved, with two additional posts each that benefited from the DP. Ms Magadla stated that the employment contracts of both the educators, who had occupied the additional DP posts in the ESS, were terminated with effect from 31 December 2015.
[17] Mr Ramkussan conceded that the applicant was employed as an educator for the duration of the DP and that it (the DP) had indeed come to an end on 31 December 2015. He stated that the applicant’s case, in essence, is that she was entitled to be absorbed into the post she had occupied.
Testimony of the applicant
[18] The applicant testified that she has been an educator for 23 years. She was appointed as a PL1 educator at the ESS. She taught physical science, life orientation and natural science at ESS. She confirmed that the DP governed her conditions of service.
[19] The applicant stated that on 20 February 2008, the very first day of her employment with the ESS, Mr Nemakhavhani had told her that the DP posts are no different from the other posts in the school establishment; and that after three months she would be absorbed as a permanent educator. During her cross examination she reiterated that she was told in 2008 that she would be absorbed permanently within three months and persisted that she thought that she would become a permanent employee after three months. She exclaimed that Mr Nemakhavhani had explained to her that the post was similar to other posts and that she did not ask him for “the documents” relating to the DP. She pointed out that she did not enquire whether the project would come to an end. The other DP educator, at the ESS, left the school in December 2014.
[20] The applicant asserted that in November 2014 Mr Nemakhavhani had a meeting with the staff and advised them to complete the absorption application forms. He expressed his hope that all his temporary educators, like the applicant, would be absorbed into the school as permanent educators. She completed the absorption form and handed it to Mr Nemakhavhani.
[21] The applicant asserted that all her colleagues, who completed the absorption forms, were in fact absorbed. She was the only educator who was not absorbed.
[22] The applicant explained that she approached Mr Nemakhavhani in June 2015 and made enquiries about whether her application was successful. Mr Nemakhavhani told her that she “was rejected”. Mr Nemakhavhani explained to the applicant that he was told by an official from the district office that the application “was rejected”. Mr Nemakhavhani also told the applicant that the district office had not provided any “rejection letter”; nor was any written reasons provided for the “ejection”.
[23] Mr Nemakhavhani told the applicant, in December 2015, that the DP contract had come to an end and that it would not be renewed in 2016. Mr Nemakhavhani advised the applicant to make any further enquiries in this regard with Mashazi, who is employed in the human resource department of the district office. The applicant exclaimed that she was very offended by the manner in which her termination was managed as Mr Nemakhavhani only verbally notified her of this; particularly given her long service at the ESS.
[24] The applicant referred to a minute of a meeting that took place on 21 October 2015, which featured in her bundle; and explained that, according to the minute (“the minute of 21 October”), Mr Bahlekazi, her subject head of department, to whom she reported; had explained to her that the DP posts would be terminated as the DP had come to an end. Mr Bahlekazi also explained to her, according to the minute, that DP was going to be “replaced” by the MSTP. The applicant averred that she was not at that meeting and Mr Bahlekazi had not communicated this to her.
[25] The applicant asserted that she was aggrieved by being terminated. She referred her dispute to her union, the South African Democratic Teachers Union (SADTU). She referred to a type written note, which featured in her bundle, and which was purportedly signed by Mr P Maahlo (the Site Steward), Mr N Sibanda (the Site secretary) and Mr Bahlekazi (the Side desk) (“the Site SADTU minute). It is recorded in the Site SADTU minute that on 23 October 2015 (erroneously stated as “2016”) the applicant had made a formal report to SADTU concerning her termination. SADTU had facilitated a meeting with the district director, which took place, with the applicant in attendance, in July 2015. The Site SADTU minute concluded with the note that the applicant had sent a letter on 23 October 2015 recording that Mr Nemakhavhani had told her “of the termination of all Dinaledi post”. The applicant disputed that she had met with the district director in July 2015. She averred that the meeting was in fact in June 2015. She also disputed that she had “written” to Mr Nemakhavhani. She averred that the communication was verbal.
[26] Under cross examination Ms Magadla submitted to the applicant that she had in fact told SADTU that she was aggrieved that she was in her temporary post for eight years and that her current contention, that she was not absorbed, is an afterthought that only featured during the arbitration proceedings. The applicant did not respond. Ms Magadla stated that the reason why her application for absorption, was not successful was because she had not occupied a substantive vacant post; but rather an additional temporary post related to the life span of the DP. Ms Magadla pointed out that the applicant’s employment was terminated because the DP had come to an end and therefore she was not dismissed.
[27] The applicant also referred to a minute of a meeting that had purportedly taken place on 28 October 2015 (“the minute of 28 October”). She disputed that she was in fact present at the meeting even though, as she pointed out, it is recorded in the minute of 28 October that she was present at the meeting.
Testimony of Mr Bahlekazi
[28] Mr Bahlekazi testified that he is the head of department at the ESS for natural sciences (“HODNS”). He pointed out that he was an educator at the ESS since 1996 and was promoted to HODNS in 2014. He pointed out that the applicant had been employed at the ESS as a temporary educator with the DP. She taught natural science and life orientation in grades eight, nine, 10, 11 and 12. He pointed out that grades eight and nine fall under the category of general education and training (“GET”) while grades 10, 11, and 12 fall under the category of further education and training (“FET”)
[29] Mr Bahlekazi asserted that the two DP posts were terminated at the end of 2015 and he is not aware “of where it is now”. He explained that, Ms Makari, who occupied the other DP post, had left and was replaced with Ms Mtembu. Both Ms Makari and Ms Mtembu taught maths. The applicant’s employment, as well as that of Ms Mtembu, was terminated when the DP came to an end. He pointed out that Mr Nemakhavhani had informed him that the DP project had come to an end. He, in turn, communicated this to the applicant at a meeting of the educators in his department on 28 October 2015. Under cross-examination Mr Ramkussan asserted that the applicant was not present at this meeting. Mr Bahlekazi asserted that he remembered that she was present and pointed out that the minutes of the meeting reflected that she was indeed present.
[30] Mr Nemakhavhani had also told Mr Bahlekazi that, even though the two DP posts were cancelled; the applicant’s and Ms Mtembu’s workloads must still be carried by the other educators within the natural sciences and maths departments. Mr Bahlekazi exclaimed that he is still carrying the extra workload “up to today”.
Testimony of Mr Mashishi
[31] Mr Mashishi testified that he is the subject head for life sciences. He reports to Mr Bahlekazi. He was the applicant’s line manager. He pointed out that he has been an educator at the ESS for about 25 years.
[32] Mr Mashishi stated that he was at the HODNS meeting on 28 October 2015. He asserted that the applicant was present at the meeting. He confirmed that Mr Bahlekazi had indeed communicated to the staff present that the DP would come to an end with effect from 31 December 2015 and that the applicant’s employment would accordingly be terminated. He explained that Mr Bahlekazi had also explained to the staff present that the applicant’s workload, in the circumstances, would have to be shared.
Testimony of Mr Nemakhavhani
[33] Mr Nemakhavhani testified that he is the principal at ESS. He pointed out that the DP was established by Minister Pando “to assist schools who were producing good results in maths, physical science and matric results”. He explained that schools that qualified were granted two additional posts. The ESS had qualified and was granted the two posts. He asserted that the two “additional posts were above the staff establishment”. Mr Nemakhavhani stated that one of these posts was for maths; while the other was for physical science. The applicant was appointed in the physical science post.
[34] Mr Nemakhavhani explained that the “normal school establishment posts”, which are permanent posts for educators at the ESS, are based on a quota given to the ESS against the number of registered learners. Mr Nemakhavhani pointed out that the DP posts were additional temporary posts, separate from the normal school establishment posts.
[35] Mr Nemakhavhani denied that he told the applicant that she would become a permanent employee after three months. He asserted that the school did not employ the applicant. It was the respondent’s district office that had recruited the applicant and deployed her to the ESS. She ought to have known that she was employed as a DP deployment in the additional temporary post. Mr Nemakhavhani stated that he does not orientate educators sent to the ESS. This is done by the respondent’s district office. This process was also followed when the applicant had arrived at the ESS in 2008. He received the applicant at the ESS and handed her to the HODNS for an induction. He asserted that, when the applicant did arrive at the ESS, he had, nevertheless, explained to the applicant that she was appointed in terms of the DP and that her post was temporary and additional.
[36] Mr Nemakhavhani denied that he only told the applicant on the last school day, at the end of the academic year in December 2015, that the applicant’s employment was terminated. He confirmed that he had in fact told Mr Bahlekazi, on 21 October 2015, at a senior management staff meeting; that the DP posts were cancelled with effect from 31 December 2015 and that he must convey the message to his (Mr Bahlekazi’s) staff, which included the applicant.
[37] Mr Nemakhavhani explained that, in November 2013, he handed all his staff, who were on temporary posts, absorption application forms for the 2014 academic year. He did this at a staff meeting. He advised them to complete the forms. He delivered the completed forms to the respondent’s district HR office. He later received a telephone call from Ms Mashazi, who told him that the applicant did not qualify for absorption because she had not applied for a vacant substantive post; and that no vacant substantive post was in fact available at the ESS. Ms Mashazi had told him to inform the applicant that her application would not be processed. He did so.
[38] Mr Nemakhavhani pointed out that the absorption forms clearly state that it is an application and not a promise of employment or a contract. He also pointed out that he does not have the authority to appoint educators. This authority lies with the Provincial Head of Department (“HOD”). Mr Nemakhavhani stated that the HOD did not send him a signed a letter of appointment, as is the process; and therefore the applicant’s application was not successful.
[39] Mr Nemakhavhani explained that the normal process is that the respondent’s district office would send him a letter either confirming that the application for absorption was in fact successful; or that it was not successful. In the case of the former, a letter of appointment would be provided to him. In the case of the latter, written reasons would be provided to him. In the normal course he would hand the letter of appointment, or the written reasons, to the educator in question.
Testimony of Ms Mashazi
[40] Ms Mashazi testified that she is the assistant director of human resource provisioning (“HRP”) at the respondent’s provincial office. She works with the allocation of posts. She explained that she has held this HRP post since 2009.
[41] Ms Mashazi stated that the DP, which is a “maths and science programme” (“MSP”), was in operation when she had been appointed to the HRP post. She explained that the DP was renewed annually.
[42] Ms Mashazi explained that the posts related to the DP were not meant to be permanent and were renewed annually on the application of the applicant and the other DP educators. Ms Mashazi received a circular every year from the respondent’s head office, which stated that there were funds for the DP for the following year.
[43] Ms Mashazi averred that the applicant was appointed as a DP educator on 20 August 2008. Her contract of employment was terminated with effect from 31 December 2015. In 2016 the applicant applied to be appointed as a temporary educator for the period 22 April 2016 until 31 June 2016. This application was unrelated to the DP. Her application was successful. Ms Mashazi pointed out that the applicant did not apply for this contract to be extended. Her contract terminated on 31 June 2016.
[44] Ms Mashazi stated that, in the latter part of 2015, she received instructions from the respondent’s provincial office, “to give notice that the programme was coming to an end”. She pointed out that the provincial office had notified her that the DP was to end on 31 December 2015. Her instruction was to “terminate the contracts”. In September 2015 she called Mr Nemakhavhani, as she did with all the principals of the DP schools; and informed him that the two DP posts were to going to end on 31 December 2015.
[45] Ms Mashazi explained that after the respondent has employed an educator as a temporary educator, that educator is entitled to apply to be absorbed as a permanent educator to a vacant substantive post. Applicants to these posts must have the necessary qualifications for the post applied for. A circular is issued by the respondent’s head office, towards the latter part of each year, specifying the vacant substantive posts available in each school.
[46] Ms Mashazi pointed out that, on receipt of the applicant’s absorption application in 2013, she telephoned Mr Nemakhavhani and queried as to which post the applicant was applying to be absorbed into. She went through the posts, available at the ESS, with Mr Nemakhavhani; and they agreed with each other that there were in fact no substantive vacant posts available in the ESS. She told Mr Nemakhavhani to inform the applicant of this accordingly.
[47] Under cross examination Ms Mashazi conceded that she should have notified the applicant in writing that her application was not successful and that written reasons should have been provided to her.
[48] Ms Mashazi explained that the MST has replaced the DP; but that the MST has not been implemented as yet as no funding has been allocated to the programme. Once such funding is allocated the respondent will advertise the posts and educators will be invited to apply for such employment.
Closing arguments
[49] Mr Ramkussan argued that the applicant was entitled to be absorbed into the post that she had occupied from 2008 until 31 December 2015. Ms Magadla argued that the applicant was not entitled to be absorbed into this post, as it was a temporary additional post. She could only be absorbed into a vacant substantive post.
Analysis of evidence and arguments
[50] The applicant bore the onus to prove, on a balance of probabilities, that she was dismissed. She averred that she was dismissed as contemplated in section 186(1)(b)(ii) of the LRA, which states:
186 “Meaning of dismissal …
(1) …
(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer –
…
(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 … did not offer to retain the employee;”

[51] It was common cause that the applicant was employed in terms of the DP which commenced in 2008, when the applicant was employed, and which ended on 31 December 2015. It is clear from the evidence before me that the end date of the project was not contemplated in 2008. It is also clear, from the evidence, that the project was going to end at some unspecified date in the future.
[52] The applicant is an educated woman and had applied for the post. It is highly improbable that she did not know that she was in fact applying for such a limited duration post. She remained in this limited duration post for about eight years, which she successfully applied, on an annual basis, to be renewed. If she indeed did not know that the post was of a limited duration; then it begs the question: why then did she apply to be absorbed?
[53] The essence of the applicant’s case is that she was entitled to be absorbed into the post she had held simply because she had held this post for more than three months. The applicant did not dispute the authenticity of Circular 01/2013 and that it had the necessary legal effect that it purported to have. Although Circular 01/2013 was applicable to the 2014 academic year, it is a safe indicator of what was meant by absorption, in so far is it related to the issue in dispute in the current matter. According to clause 9.3 of Circular 01/2013 the “qualifying educators” are defined to include temporary educators employed in the Dinaledi posts. Hence, the applicant was entitled to apply to be absorbed as a permanent employee into the staff establishment.
[54] The next issue is whether she was entitled to be employed into the DP post that she held. Clearly she was not. The post, by its very nature, was temporary and had been abolished with effect on 31 December 2015. Section 6(3)(a) of the EEA provides:
“Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”

[55] Clause 9.2 of Circular 01/2013 clearly states that temporary educators “cannot be absorbed where there is no vacant substantive post on the establishment” of the following academic year. The applicant had only made an absorption application in 2013 to be absorbed as a permanent educator in 2014. She did not dispute that there was indeed no substantive vacant post available on the staff establishment at the ESS, as Ms Mashazi had testified. It was apparent, from the evidence on this issue, that the applicant had not identified any vacant substantive post, in her application, whether in the ESS or any other public school in the region, the Gauteng province or any other province; into which she wanted to be absorbed. Nor did she make such an absorption application in 2008, 2009, 2010, 2011, 2012, 2014 and/or 2015. She was clearly entitled to do so.
[56] The applicant’s absorption application in 2013 was rightly rejected on the basis that she had neither applied for be absorbed into a vacant substantive post; nor was such a post available at the ESS. Had she identified such a post the respondent would have been under a duty to rebut whether her application was fairly rejected. She failed to do so.
[57] The applicant did not refer the current dispute after the respondent rejected her absorption application. She was probably aware of the rejection in 2014. This is because after she had made her absorption application in 2013, she had signed another fixed term contract for 2014. She referred the dispute after she was notified that her DP post was abolished as the DP had come to an end and that her continued employment was terminated with effect from 31 December 2015. Clearly the applicant would only be entitled to be considered for absorption if she made such an application, identified a substantive vacant post in her application and had the necessary qualifications for such a post. Moreover, the governing body of the relevant public school for such an appointment must recommend her. She had not done so in her 2013 application, as I have explained above. Nor did she make any other such applications.
[58] In the light of all the evidence before me, it is clear that the respondent did not dismiss the applicant when it terminated her employment with effect from 31 December 2015.
AWARD
[59] The applicant, Ms I Z Mkhize, failed to discharge her onus that she was dismissed by the respondent, the Gauteng Department of Education, as contemplated in section 186(1)(b)(ii) of the Labour Relations Act of 1995
[60] The applicant’s dispute referred under Case No. PSES740-15/16GP is accordingly dismissed.

Arbitrator: M Naidoo