Panelist: Mothusi Maje
Case No.: ELRC100-24/25NW
Date of Award: 04 December 2024

In the Matter between:

National Teachers Union (NATU) obo Jabulani Ernest Zimema
(Union / Applicant)

And

Education Department of North West

(Respondent)

Applicant’s representative: Zamangwane Khanyile (NATU Union official)   
Applicant’s address:    199 Anton Lembede Street    
    14th Floor, Embassy Building    
    Durban, 4001        
Telephone:  (031) 332-0692 / 068 260-9137 / 067 599-6331    
                                                    Email        legal@natu.org.za / thuli.legal@natu.org.za 

Respondent’s representative:    Absent
Respondent’s address:   Education Department: North West    
    08 OR Tambo Street, Potchefstroom   
    2577    
Telephone:  082 890-1704 / 076 824-3386 
                                                  Email:        ephuswane@nwppg.gov.za /    
                                                                 matshabatatedi@gmail.com         

DETAILS OF HEARING AND REPRESENTATION

1. This is an award of the arbitration that was held on the 22 August 2024 at the Education Department of North West at Alabama offices in Klerksdorp (North West). The matter became part-heard and continued on 01, 02 and 03 October 2024. It became part-heard and continued on 12, 13 and 14 November 2024.
2. The applicant, NATU obo Jabulani Ernest Zimema who was present and he was represented by Zamangwane Khanyile, the union official from NATU. The respondent, Education Department of North West was present and represented by Boitumelo Phuswane as its Labour Relations Officer.

ISSUE TO BE DECIDED

3. The issue to be decided was whether the respondent dismissed the applicant in terms of Section 186 (1) (b) (ii) of the Labour Relations Act. If so to determine the appropriate relief.

BACKGROUND TO THE DISPUTE

4. The applicant was employed by the respondent on a fixed term contract as an Educator from 03 March 2023 until 03 June 2023. The fixed term contract of employment was further extended until 31 December 2023. The applicant at the time of the alleged dismissal was earning R26 932.25 per month and his fixed term contract of employment was terminated on 31 December 2023.
5. The Applicant approached the Education Labour Relations Council (ELRC) alleging that his termination of his fixed term contract of employment amounted to dismissal and seeks retrospective reinstatement.
6. The dispute was not resolved at conciliation and arbitration hearing was scheduled on 22 October 2024, it became part-heard and continued on 01, 02, 03 October 2024 and 12, 13 and 14 November 2024, hence this award.
7. There were bundles of documents that were submitted by the applicant party which was marked “Bundle A” of the applicant. The respondent submitted a bundle of documents which was marked “Bundle B” of the respondent.
8. The parties also requested to submit written closing arguments after the arbitration hearing was finalized, which was granted and the agreed date to submit the closing arguments was on 21 November 2024.
9. Because the proceedings were electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.

SURVEY OF EVIDENCE AND ARGUMENTS
APPLICANT

Jabulani Ernest Zimema testified as follows:

10. In order to support his case the applicant led the evidence that he was a PL1 Educator at Kanana Secondary School. He was converted from fixed term contract of employment to permanent positon on 01 June 2023. It was his further evidence that he was given a transfer letter to report to Tigane Secondary School.
11. At Tigane Secondary School, he found out that the School was dysfunctional and he was advised to report back to Kanana Secondary School by Tigane Secondary School care taker. He was dismissed by the Kanana Secondary School ‘s Principal named Mr. Khumalo.
12. He testified that Annexure A on page 1 is his salary advice with persal number 92085601 with pay point 7820 / 082118 sent by the Department of Education in the North West. In 2021, he was employed at the Kanana Secondary School under a substitute post which was a temporary post.
13. The applicant further testified that the temporary educators’ employment contracts were renewed yearly by the Principal of Kanana Secondary School. Bundle A on page 6 is his appointment letter issued on 01 June 2023 in that he was permanently employed by the Department of Education in the North West. After his appointment permanently, he received a bonus and his monthly salary was paid in full.
14. Bundle A on page 7 is the placement letter at Tigane Secondary School through the Principal of Kanana Secondary School, Mr. Khumalo which he received on 22 January 2024, and he had to go and report at Tigane Secondary School.
15. It was his evidence that he reported at Tigane Secondary School and upon arrival at Tigane, he met the school caretaker who advised him that there was already an appointment of another educator. The Tigane Secondary School caretaker further advised him to go back to the Circuit Manager and the Kanana Secondary School Principal, Mr. Khumalo.
16. Upon arrival at the Circuit Manager’s office, he informed the Circuit Manager of what happened at Tigane Secondary School. The Circuit Manager advised and informed him to report back to the Principal of Kanana Secondary School about the situation at Tigane Secondary School.
17. On 26 March 2024, the Principal of Kanana Secondary School, Mr. Khumalo contacted him telephonically on his cellular phone during school holidays. The Principal informed him that he must not report back to Kanana Secondary School when the schools re-open.
18. He enquired from the Kanana Secondary School Principal, Mr. Khumalo as to why he was barred to report at his school anymore. Mr. Khumalo responded to him that his fixed term contract of employment has been terminated as it has come to an end. He accepted the explanation from Mr. Khumalo and decided to consult with his union.
19. The process of his transfer to Tigane Secondary School was facilitated through by South African Democratic Teachers Union (SADTU).
20. The union advised him to report back to Kanana Secondary School to ask the Principal, Mr. Khumalo to give him the termination letter. When the schools re-opened, he went back to Kanana Secondary School and around 17:00 pm, he received a telephone conference call from the Principal of Kanana Secondary School, Mr. Khumalo, his SADTU union official and the Circuit Manager.
21. In April 2024 when the schools re-opened, he was told not to report to Kanana Secondary School as he was no longer an employee and he was trespassing.
22. He filed a grievance with the Department of Education of Education at the office of the District Director, Mr. Monele. There was no response whether the grievance filed was received . Bundle A on page 10 is the grievance submitted to the office of the District Director but there was no response.
23. He followed up the grievance the grievance submitted but there was no response. His further evidence was that he tried to speak to the Human Resources Department but there was no response.
24. The applicant submitted that he was unemployed.

UNDER CROSS EXAMINATION

25. His evidence was that Bundle A on page 10 is the grievance submitted and it was directed to the office of the District Director which did not confirm the receipt thereof. The grievance was sent by the union on his behalf and he should have received a response from the union in relation to the grievance submitted.
26. The union informed him that there was no response from the Department of Education in the North West. He went personally to the Human Resources Department but the response was that he must go and speak to his union.
27. Bundle A on page 12 is the grievance from and at paragraph 8 is the procedure. Bundle A on page 13 is his personal particulars on the grievance form. There was no acknowledgement of receipt from the Department of Education in the North West. He conceded that the grievance was not received by the Department of Education in the North West.
28. The applicant further testified that he was appointed in 2021 and his fixed term contract of employment was renewed both in 2022 and in 2023. In 2024, his fixed term contract of employment was not renewed. He received a conversion letter from a fixed term contract of employment to a permanent appointment dated 01 June 2023.
29. In September 2023, he received a conversion letter at Kanana Secondary School but he did not have a position at Kanana Secondary School. It was put to him that that the Principal of Kanana Secondary School joined the school towards the third term. The applicant did not respond.
30. It was also put to the applicant that the previous Principal of Kanana Secondary School left the school towards the end of the third term before Khumalo came to replace him or her. The applicant did not respond.
31. It was again put to the applicant that Mr. Khumalo did not renew any of his fixed term contracts of employment, he was dishonest in his evidence-in-chief but it was done by the Principal of Thuto Tsebo Secondary School where the post was borrowed to Kanana Secondary School. The applicant did not respond.
32. The applicant conceded that there was a post at Kanana Secondary School but the post he occupied was borrowed from Thuto Tsebo Secondary School initially when he assumed his duties at Kanana Secondary School. He was informed initially by the then Principal named Malope.
33. Bundle A on page 6 is the conversion letter dated 01 June 2023 which placed him at Thuto Tsebo Secondary School. He went home after receiving the conversion letter. The Human Resources officer dismissed him in that he did not have teaching subjects. He enquired from the Central University of the Free State.
34. He did not who to contact at the Department of Education but he contacted the University Professor who gave him a letter which is not in the bundle of documents. The Circuit Manager told him in January 2024 that he was terminated because he did not have the teaching qualifications.
35. It was the applicant’s further evidence that the Principal of Kanana Secondary School, Mr. Khumalo contacted him on 26 March 2024 not to report to the School anymore. He was eligible to be appointed.

THE APPLICANT’S WITNESS

Thomas Bochele testified as follows:

36. He knows the applicant and there was a tele-conference that took place between himself, the Principal of Kanana Secondary School, the applicant and the Circuit Manager.
37. The purpose of the tele-conference meeting was that the Circuit Manager complained about the letter written by SADTU officials to the MEC and the Director. The applicant was terminated whilst in possession of the letter.
38. The Circuit Manager indicated that the letter to convert the applicant from a fixed term contract of employment to permanent appointment was a mistake and should not have been issued to the applicant.
39. The Circuit Manager told him that the applicant was not supposed to have reported for work at Kanana Secondary School. The Circuit Manager informed him that she already told the applicant a year before that he should not report for work at Kanana Secondary School because the post was borrowed and revoked.
40. The Circuit Manager informed him that if the applicant if the applicant persists to report for work at Kanana Secondary School, he will be trespassing. The Circuit Manager was disappointed after discussing the matter with the SADTU branch and the matter was escalated to the MEC and the Director.
41. The Circuit Manager indicated that she will no longer discuss the matter with the SADTU branch. The applicant was promised a position at Tigane Secondary School. The applicant was not allocated work at Kanana Secondary School in January 2024.
42. The Circuit Manager confirmed that she already spoke to the applicant in December 2023 that he should not report to work at Kanana Secondary School because his fixed term contract of employment came to an end. He did not know where the applicant received a conversion letter. The Principal of the School recommended the applicant to be permanently employed.

UNDER CROSS-EXAMINATION

43. There was a vacant post at Thuto Tsebo Secondary School which was not used which was borrowed to Kanana Secondary School. The applicant was appointed on a fixed term contract of employment in a borrowed position from Thuto Tsebo Secondary School to Kanana Secondary School.
44. The Circuit Manager indicated that there was no post at Kanana Secondary School and the conversion letter was issued to the applicant wrongly because there were issues of applicant’s qualifications which needed to be verified.
45. The unions ensures that all their members were treated fairly and there were issues with the applicant’s qualifications that needed to be verified.

RESPONDENT’S EVIDENCE

RESPONDENT’S WITNESS EVIDENCE.

Moeketsi Kagisho Khumalo testified as follows:

46. His evidence was that he became the Principal of Kanana Secondary School in September 2023 and knows the applicant. The former acting Principal at Kanana Secondary School introduced all staff members as it was a norm when the hand- over was done. The applicant was employed on a fixed term contract of employment because there was a teacher who went on maternity leave and the applicant was relieving.
47. The witness further testified the applicant was employed on 05 November 2020 as a Process Controller at the water and sanitation treatment plant. The employer was in a process of recruitment and selection and placed the applicant on a fixed term contract of employment on month to month basis. The applicant was aware that his position will be advertised.
48. There was an arrangement made with Thuto Tsebo Secondary School to borrow a post to use the services of the applicant at Kanana Secondary School. He contacted the Circuit Manager who confirmed and advised him that the applicant was not supposed to be in Kanana Secondary School.
49. There was no dismissal because there were no duties assumed by the applicant. The applicant asked the Circuit Manager to place him somewhere. The applicant requested the Circuit Manager to stay at Kanana Secondary School because he did not have money to travel to Tigane Secondary School and pay for accommodation.

UNDER CROSS-EXAMINATION

50. He was employed by the Department of Education since 1996 permanently and the educators were introduced to him together with the applicant. The then Principal of Kanana Secondary School, Mrs. Mohapi informed him that the applicant was a reliever from a post borrowed from Thuto Tsebo Secondary School.
51. Bundle A on page 6 is the conversion letter which he knew about it in December 2023 through the applicant. In December 2023, the applicant knew that he was supposed to report at Tigane Secondary School. Bundle A on page 7 is the placement letter of the applicant to report to Tigane Secondary School.
52. The conversion letter was not introduced to himself to the applicant, in fact, the applicant brought the conversion letter to his attention.

Vuyiswa Monkwe testified as follows:

53. She was the Principal of Thuto Tsebo in 2023 and knows the applicant. The applicant and a certain Kgiba were the two educators on temporary posts borrowed. She agreed to borrow the posts to Kanana Secondary School for appointments of the two candidates.
54. Bundle A on page 6 is the conversion letter and she requested the Human Resources Department to contact the applicant to collect the conversion letter. The applicant came to Thuto Tsebo Secondary School to collect the conversion letter from a certain Botlhale.

UNDER CROSS-EXAMINATION

55. In mid-year of 2022, there were 2 temporary positions which are currently vacant. The applicant always collected his pay slips from Thuto Tsebo Secondary School. The educators are appointed based on the curriculum needs of the School.
56. The applicant’s services were rendered at Kanana Secondary School and the two (2) positions did not meet the curriculum needs of Thuto Tsebo Secondary School.

Kaone Portia Makabane testified as follows:

57. She is the Circuit Manager managing Schools since 01 September 2022. She knew the applicant as an educator at Kanana Secondary School. The Principal of Kanana Secondary School, Mr. Khumalo, informed her that there was an educator who was not on the school establishment.
58. She visited the Kanana Secondary School and interacted with the School Principal. The Thuto Tsebo Principal communicated with the applicant that the post will be taken back. The applicant was informed that in December 2023, his fixed term contract of employment will be terminated and will not be renewed.
59. The applicant continued reporting to Kanana Secondary School, but not teaching and not signing the attendance register. The matter was resolved that the applicant will be assisted to get the position at Tigane Secondary School.
60. The applicant agreed that the conversion letter was issued by the Human Resources Department. There was a new School in Tigane that the applicant was supposed to report to but he did not report to the school on the basis that he did not have money for accommodation and travelling costs.

UNDER CROSS-EAMINATION

61. She is the Circuit Manager appointed on 01 September 2023. Her duties are to support and monitor the schools. The conversion letter was issued wrongly to the applicant and the District Director was informed about the erroneous issuing of the conversion letter. The Human Resources Management issued to conversion letter and sent it to the District Director.
62. It was her evidence that the applicant was not promised by the employer to be permanently employed and that was going to create a problem in terms of recruitment and selection processes to render them null and void. The applicant was given a notice of termination of fixed term contract of employment which ended in December 2023.
63. There was no personal vendetta against the applicant. She did not advise the applicant to report to Thuto Tsebo Secondary School because the post was taken back from Kanana Secondary School. The applicant was offered a position at Tigane Secondary School but he did not report at the school citing lack of money.
64. The applicant continuously reported at Kanana Secondary School even after his fixed term contract of employment came to an end in December 2023. The applicant was not eligible for conversion at Thuto Tsebo Secondary School.

ANALYSIS OF EVIDENCE AND ARGUMENTS

65. Section 186 (1) (b) (ii) of the Labour Relations Act makes provisions 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.
66. The practical implications of this will be that employees appointed on fixed term contracts of employment will be able to claim that they reasonably expected to be appointed indefinitely as a result of the behavior of the employer.
67. The mere allegations by the applicant without further evidence is not sufficient. The setting of this standard will prevent floodgates for large numbers of other cases based on the Section 186 (1) (b) (ii) of the Labour Relations Act.
68. It is therefore incumbent on the applicant to have pertinently raised and pleaded a case of dismissal based on Section 186 (1) (b) (ii) in the arbitration and prove that such termination on a fixed term contract of employment amounted to a dismissal. His failure to prove that such amounts to dismissal must be fatal to him being able to establish that he was indeed dismissed.
69. This is so, because it has already been established that there is no dismissal as contemplated by Section 186 (1) (b) (ii) unless proven by the applicant with sufficient reasons that in deed there was a reasonable expectation created by the employer to retain him 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.
70. A stipulation in a fixed term employment contract which specifically excludes any expectation of renewal is therefore not necessarily the deciding factor and there must be a considerable weight placed on it in practice.
71. In deciding whether the applicant was dismissed, the point of departure has to be the consideration that the applicant had the onus to prove that he was dismissed. His employment at the employer was on the basis of a fixed term contract of employment. This was the only employment contract in existence between the applicant and the respondent.
72. The terms of a fixed term contract of employment were clear. There is nothing in the evidence that contradicts these clear fixed term contract of employment terms. The applicant was given a notice of termination of the fixed term contract of employment fully in line with the terms of the contract.
73. That would mean that his employment contract automatically came to an end in December 2023 which is when the term of the fixed term contract came to an end. In turn, this means that the applicant was not dismissed by the respondent.
74. It is because of the above clear facts that the applicant sought to rely and confusing the two contentions to try and contradict the employment contract, its application and the consequences of its application.
75. This is clearly a fixed term contract for a legitimate reason, which is consistent with the provisions of the Labour Relations Act. The applicant was not guaranteed permanent employment and he did not have any expectation of continued employment on expiry of the fixed term contract of employment.
76. It was the evidence of the Circuit Manager that the applicant was not eligible to be converted on a full time or permanent basis solely on the basis that he did not have teaching subjects, the post was revoked by Thuto Tsebo Secondary School from Kanana Secondary School.
77. The applicant also misled the Council in his evidence-in- chief in that he received a conversion letter from the new Principal of Kanana Secondary School, Mr. Khumalo. The conversion letter was issued on 01 June 2023 and Mr. Khumalo joined Kanana Secondary School around September 2023 way after the conversion letter was issued to the applicant.
78. It is trite that where employment of an employee terminates on the basis that a fixed term contract of employment has reached the end of its term and has thus expired, this termination does not constitute a dismissal as contemplated by the Labour Relations Act 66 of 1995.
79. From the outset, it must be said that the applicant’s case faces considerable difficulties, not on the merits of the case, but on the basis he has chosen to present, plead and bring it. As said in SA Breweries (Pty) Ltd v Louw‘, if a litigant pleads a bad case, it must lose, and it cannot be rescued from failure because it is possible to conceive and construct a better case. This will now be elaborated on, below.
80. It is clear from the wording of s 186(1) above that there are specifically defined instances that bring about the termination of employment which would be regarded as dismissal. This means therefore that an employment contract can be terminated in a number of ways which do not constitute a dismissal as defined in s 186(1) of the LRA.
81. One such instance would be a fixed-term employment contract entered into for a specific period or upon the happening of a particular event. An event that comes to mind would include a conclusion of a project or the cancellation or expiry of a contract between an employer and a third party.
82. Once the event agreed to between an employer and its employee takes place or materializes, there would ordinarily be no dismissal. It has been the position in common law that the expiry of a fixed-term contract of employment does not constitute termination of the contract by any of the parties
83. All thus said, the applicant was not dismissed. The first part of the applicant’s case must therefore fail. I find no dismissal existing and proven by the applicant under these circumstances.
84. This is not one of those cases such as disputes relating to freedom of association where the employer proves the conduct complained of, the legislation then requires the employer to prove that such conduct was fair or lawful and, if it cannot prove that, unfairness is established.
85. Turning next to the applicant’s second part of his case, being the alleged promise or offer of permanent employment by the Circuit Manager, he refused to report at Tigane Secondary School citing that he did not have money and the School was under construction, he lied about the whole situation at Tigane Secondary School.
86. There was a need for educators to be employed and he did not just want to report for work after all efforts made by the Circuit Manager who is overseeing all the schools under her authority.
87. The applicant’s evidence clearly was inconsistent and I can only come to one conclusion that the misled the proceedings purposely to lie. The applicant was lying under oath.
88. The applicant similarly faces a number of obstacles. The first obstacle is a legal one. Such a promise or offer by the Principal of Kanana Secondary School does not change underlying nature of his fixed term contract of employment.
89. In simple terms, the promise or offer does not change what is a fixed term contract of employment into a permanent contract of employment. It also does not change the fact that employment contract comes to an end on the agreed termination period.
90. All that this promises or offer can achieve is to possibly prove an act of dismissal as contemplated by Section 186 (1) (b) (ii) which makes provisions 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.
91. The question whether the respondent’s failure to renew the fixed term contract of employment constitutes a dismissal within the meaning of Section 186 (1) (b) (ii) is a legal one.
92. It is therefore incumbent upon the applicant who brings an alleged unfair dismissal dispute to set out material facts upon which he relies for the conclusion of the law he wishes to draw from those facts and it will not be sufficient, therefore, to plead the conclusion of the law without presenting the material facts giving rise to it.
93. The mere allegations by the applicant without further evidence is not sufficient. In order to assess the correctness of the applicant’s contention that he had a reasonable expectation that his contract would be renewed and that the respondent’s failure to renew it constituted a dismissal, it is first necessary to determine whether he in fact expected his contract to be renewed, which is the subjective element.
94. Secondly, if he did have such an expectation, whether taking into account all the facts, that expectation was not reasonable, which is the objective element. Whether or not his expectation was reasonable will depend on whether it was actually and genuinely entertained.
95. In casu, and as I have said, the applicant has made out no such case. The applicant has in fact never said that he expected his fixed term contract to be renewed. He has said that he was promised a new and permanent job.
96. Also, the applicant, even if it can be said that he had a subjective expectation of remaining employed, there was a complete and utter failure on his part to prove this expectation was reasonable, especially considering that the applicant was not truthful and his witness did not present any tangible evidence at arbitration to corroborate his evidence as a witness.
97. In the end, and simply put, the promise of a permanent job is not an expectation of the renewal of the fixed term contract, which is one of the reasons for the addition of Section 186(1)(b)(ii) in order to cater for this kind of eventuality.
98. Even if I consider the applicant’s case of a promise or offer made by the Circuit Manager and the Principal of Kanana Secondary School, this case on the merits thereof in any event has no substance. One had to consider this part of the applicant’s case based on his testimony.

AWARD

99. The applicant has failed to prove that the respondent dismissed him based on Section 186 (1) (b) (ii) of the Labour Relations Act.
100. The application is dismissed.

ELRC Commissioner: Mothusi Maje
ELRC North West Province (Pretoria office)
04 December 2024