12 May 2025 -ELRC1226-24/25MP

ARBITRATION AWARD

Panellist/s: Mahasha Thomas

Case No.: ELRC 1226-24/25MP

Date of Award: 12 May 2025.

In the ARBITRATION between:

Khumalo A

(Union / Applicant)

And

Head of Department: Mpumalanga Department of Education

(Respondent)

Union/Applicant’s representative:

Union/Applicant’s address: Langutani Matsilele (Matsilele Attorneys)

Respondent’s representative: Frieda Rieger

DETAILS OF THE HEARING AND REPRESENTATION.

The employee referred a dispute in terms of section 186 (1) (a) of the Labour Relations Act, herein referred to as the “LRA”.

The matter was set down as an arbitration process on 28 March 2025 at Gert Sibande District office, Department of Education, Ermelo.

The employee was in attendance represented by Langutani Matsilele of Matsilele Attorneys, based in Nelspruit.

The employer also attended the hearing, represented by Frieda Rieger, Assistant Director Labour Relations.

ISSUES TO BE DECIDED.

The issues to be decided was whether the employee was dismissed or not, if so, whether the dismissal was fair or not.

BACKGROUND TO THE DISPUTE.

The employee was appointed on a fixed term contract in 20 May 2023 to 31 December 2023 at Lindile Secondary School, Msukaligwa Circuit. When the contract came to an end by operation of the law, it was renewed on 1 January 2024. The contract was not renewed when it expired on 31 December 2024.

The employee was suspended on 11 November 2024 following allegations of having sexual relationship with a learner.

The employee was not charged.

Following non-renewal of the fixed term contract, the employee declared a dispute alleging that his services were unfairly terminated in that he was supposed to have been given notice of termination.

The employee sought reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT.

EMPLOYER’S EVIDENCE.

Johannes Mahlangu’s testimony was that the employee was not dismissed. He was appointed in a fixed term contract at Silindile Secondary School in a project that sought to improve Mathematics and Science results at poor performing schools. His contract came to an end by operation of the law.

Renewal of a fixed term contract is effected when the employee completes a Notice of Employment of an educator (Form Edu 8).

The form has an assumption of duty ate and a date for expiry of a fixed term contract. Thereafter, the employee fills in Confirmation of a temporary closed employment contract confirming the period of a fixed term contract of employment.

It is a practice in the education sector to appoint educators on a temporary basis for a period of twelve months, to allow an uninterrupted teaching and learning, unless the educator is appointed to substitute an educator who is on maternity leave.

The employer had no obligation to issue a notice of termination to the employee because the employee was aware of the date of termination.

The employer could not conclude disciplinary action against the employee because the fixed term contract had expired.

The employee had the onus of proving that he had signed a fixed term contract of employment.

EMPLOYEE’S EVIDENCE.

Akhonamandla Khumalo testified that he was placed by Mathematics, Science and Technology Academy (MSTA) at Silindile Secondary School with an aim of improving the results for Mathematics and Science. When given an offer of appointment by MSTA employee, he was assured that the contract would be renewed on condition, mathematics and science results are improved in the school. He was also told by the school principal that the renewal of the contract is dependent on his performance.

He was tasked to teach mathematics and science at grades 10 and 11. He is not aware about the results for the two grades. He is aware that grade 12 achieved 100% pass rate. He expected the contract to be renewed because grade 12 learners obtained 100% pass rate.

He signed the contract of employment with the school principal.

ANALYSIS OF ARGUMENTS AND FINDINGS.

In my analysis, I only considered relevant evidence and arguments presented by both parties.

The onus was on the employee to prove that the employer committed an unfair labour practice relating to benefits when it refused to backdate payment of her housing allowance from the date of the inception of GPSSBC Resolution.

Section 186(1) (b) of the LRA states, “ Dismissal means that- an employer has terminated employment with or without notice;

An employee employed in terms of a fixed term contract of employment 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…”

In Member of the Executive Council for the Department of Finance Eastern Cape v De Milander & Others (2011) 32 ILJ 2521 (LC) the court held” “The onus to prove that the dismissal occurred in the circumstances where the employee had a reasonable expectation that the fixed term contract would be renewed at the end of its period rests with the employee. A dual enquiry is conducted in determining the existence of reasonable expectation. The first enquiry is subjective and entails enquiring into the subjective basis upon which the person who claims reasonable expectation relies in contending that his or her contract ought to have been renewed. The enquiry into reasonable expectation ends if the employee fails to show that he or she had the expectation that the period of the fixed term contract would be extended. If the employee is successful in showing that he or she had a subjective expectation that the contract would be renewed then the second enquiry entails determining the existence of such an expectation on the basis of the objective facts that existed prior to the termination of the contract”.

The subjective basis relied upon by the employee was three fold. He contended that he was informed by the school principal and MSTA employee that his contract would be renewed provided there was an improvement in Mathematics and Science at Silindeleni. He went further to state that the contract of employment was terminated because of the pending disciplinary case against him.

The employee’s case would have been different if he had called both the school principal and MSTA employee to confirm having made a promise to him. In the absence of their testimony, the employee’s testimony about expectation for the renewal of a fixed term contract, amounts to hearsay evidence.

Although hearsay evidence may under certain circumstances be admissible, it can only be admitted as evidence if the employee had provided reasons for non-availability of a witness. There was no reason provided why both the school principal and the MSTA employee were not called to come and testify.
The employee’s assertion that he was dismissed because he had a pending disciplinary case, is in my view, far-fetched. If the employer was hell-bent to dismiss him, it could have taken the easier route of dismissing him for the alleged serious misconduct of having sexual relationshiship with a learner.

An employee carries the onus to establish that he had a reasonable expectation that his contract would be renewed. He had to place facts which, objectively considered, establish a reasonable expectation. Because the test is objective, the enquiry is whether a reasonable employee would, in the circumstances prevailing at the time, have expected the employer to renew his or her contract. As soon as the other requirements of section 186 (1)(b) have been satisfied it would then be found that the employee had been dismissed, and the employer would have to establish that the dismissal was both procedurally and substantively fair.

The employee relied on the provisions of the statement which reads” contract expiry date 31 December 2024, or until the post is filled by means of formal recruitment or transfer process/ placement of a state funded bursar/ transfer of an official in addition;or alternatively until the post is abolished or suspended, whichever date comes first”. The words “whichever comes first” if given their ordinary meaning, suggests that occurrence of any of the conditions stated above, would end the contract of employment.

In this case, what came first was the expiry of the period of a fixed term contract. If the employer had placed a bursar in the same post before the contract could come to an end, the fixed term contract would in terms of the above clause, have been validly terminated.

The question was whether despite fulfilment of one of the conditions mentioned above, the employee could under the circumstances, objectively; still rely on reasonable expectation of the renewal of a fixed term contract.

In my view, a reasonable person in the same circumstances as those of the employee would not objectively have had a reasonable expectation for the renewal.

Conditions of employment were accepted by the employee at the time of his employment. He was aware that he was appointed on a fixed term contract that would terminate on 31 December 2024.

Even if it could be accepted that there were prior promises of renewal by the school principal and the MSTA employee, such renewal was on condition that he improves the pass percentage of the learners. In his own testimony, he stated that he did not know the results for the classes he was responsible for.

In Mediteranean Woolllen Mills (Pty) Ltd v South African Clothing and Textile Workers Union (143/96) [1998 (SCA) the court held that “ despite these clauses, a reasonable expectation could still arise during employment if assurances, existing practices and conduct of an employer led the employee to believe that there was a hope for renewal… “

It is probable that the principal might have made a promise for the renewal of the contract to the employee. However, the school principal is also an employee. The Head of Department is the employer of educators. The promise to have the fixed term contract renewed, could have been made by a person without the authority to do so.

The fact that matric learners obtained a 100% pass rate in mathematics and science cannot be attributed to him. He was responsible for grades 10 and 11. He had therefore failed to establish that he had satisfied the condition of a reasonable expectation for the renewal of a fixed term contract which he alleged was given by the school principal and the MSTA employee.

The fact that the fixed term contract was previously renewed once, cannot be enough to create a reasonable expectation for the renewal of a fixed term contract. The employee had to provide other reasons, which if considered; would raise reasonable expectation for the renewal.

The other issue of determination was whether or not the employer ought to have given a notice of termination to the employee.

Section 37 (1) of the Basic Conditions of Employment Act provides “subject to section 38, a contract of employment terminable at the instance of a party (my emphasis) to the contract may be terminated only on notice less than…..” Key words in this section are “at the instance”, which refers to termination done, suggested or requested by someone. Termination of the fixed term contract was not at the instance of the employer. Termination was instead, by operation of the law.

In this case, parties agreed to a date for beginning and ending of the contract of employment.

There was no notice period stated in both the assumption of duty forms and the Notice of Employment of an Educator signed by both parties. What is clearly stated is the duration of a fixed term contract.

Under the circumstances, the employer was not obliged to give a notice of termination to service because both parties were aware when the fixed term contract would come to an end. If the above stated forms obliged the employer to issue such a notice, the employer would, in failing to do so, be in breach of the contract.
The employee had failed to discharge the onus of proving the existence of a dismissal. I agree with the employer that ELRC does not have jurisdiction to entertain a dispute which was as a result of termination by operation of the law. The employee could therefore, not be granted the remedy he required.

AWARD.