IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No. PSES 307-19/20LP

In the matter between

MICHAEL CHUENE MOSOMANE Applicant

And

LIMPOPO DEPARTMENT OF EDUCATION Respondent

ARBITRATION AWARD

Details of hearing and representation

1 This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act).

2 The initial hearing took place at the Limpopo Department of Education, Cnr Hospital and Hans van Rensburg Streets, Voorwarts Building, Polokwane, Limpopo Province, on 15 October 2019. The last hearings took place virtually on 30 July and 21 August 2020 at 9:00AM.

3 The applicant, Michael Chuene Mosomane was initially, when the arbitration hearing started on 15 October 2019 represented by Phillip Maponya from Public Servants Association of South Africa. However, during the succeeding hearings the applicant represented himself. The respondent, Limpopo Department of Education was represented by Matlou M.M, its employee.

4 The proceedings were digitally voice recorded and conducted in English.

Issues to be decided

5 This dispute was about the applicant’s alleged termination of contract with or without notice.

6 I must decide whether or not the applicant was dismissed.

7 Should I find that he was dismissed, I must then determine whether the dismissal was both procedurally and substantively fair. If the dismissal is unfair, I must determine an appropriate relief.

Common cause facts and background to the dispute

8 The applicant was employed as CS1 Educator at Nakedi Secondary School. He was appointed on fixed term contract since 01 January 2019 to 31 December 2019 or until the post is permanently filled.

9 The applicant’s contract was terminated on 30 June 2019. He was earning a salary of R23 266.50 per month.

Survey of the Applicant’s evidence and argument.

10 The applicant submitted bundle of documents marked BUNDLE B. The applicant testified under oath and in English that:

10.1 He reported to the Principal as his Manager. He was appointed to the post from 01 January to 31 December 2019, as indicated in terms of the first part of the appointment conditions. The last part of the appointment condition indicated that ‘until the post is permanently filled. There are internal processes which the Provincial Department of Education must follow when filling post. One of those processes was the Rationalisation and Redeployment (R & R) and the second process was through advertisement, wherein labour unions are informed to observe it. Trade unions should also observe R & R process. They were informed that R & R would run up until April that year (2019) and should a school find a suitable person to fill the promotional post, which would be an automatic termination of his contract. The Principal informed them that there was no suitable person to occupy his post through R & R. The Principal informed them that, the school was waiting for the Department to advertise the post, instead he was verbally terminated. On 30 May 2019, he was called by the Principal and the School Governing Body (SGB) who told him that the Department has sent somebody to occupy his post and he was terminated immediately. He left the school on 30 April 2019, but he received an SMS on 01 May 2019 informing him to continue working up until 31 May 2019 in order to do a proper handover. He received a Termination letter signed by the District Director, Mr. Mothemane K.D. He was terminated, because there was a Teacher who applied for a horizontal transfer. He felt the post should be filled through advertisement and he should occupy it until 31 December 2019. The principal did not have a reason to take somebody from outside to come and occupy his post. The horizontal transfer was not done in the correct procedure, because there was no trade union present to observe the process.

10.2 During cross-examination Mosomane testified that his appointment letter meant that he was appointed on temporary basis against a promotional post. The post was at level 2, while he was CS1. His contract of employment was approved by the District Director. Horizontal transfer was not a due process to be followed when filling a post and it does not replace due process. Adjudication should be made, when a person request for a horizontal transfer.

Survey of the Respondent’s evidence and argument.

11 The respondent submitted bundle of documents marked BUNDLE A. Two witnesses testified for respondent. The first witness was Tsebe Christina Tladi. who testified under oath and in English that:

11.1 She was an Assistant Director: Human Resources Provisioning, dealing with filling of posts for Educators. The posts are filled through placement of Bursary Holders, R & R and lastly through transfers. The applicant received an appointment letter appointing him temporary as substitute against the promotional post. The applicant accepted the appointment, thereby accepting his contract of employment. The contract of the applicant started on 01 January 2019 and end on 31 December 2019 or until the post is permanently filled, whichever occurs first. The applicant could not be appointed into the post, since it was a promotional post (HOD) and the applicant was a CS1 Educator. The post could be filled by R&R, transfer or advertisement. The applicant was given a notice of termination of service by the District Director. In terms of the notice he was given 30 days’ notice. There was an application for a horizontal transfer to permanently fill the post temporary occupied by the applicant from a certain Modiba M.P. The horizontal filling of the post permanently came first as indicated in the condition set out in item 1.8 of the appointment letter (Bundle A, page 11). The termination of the applicant’s contract of employment was lawful and in order, because they complied with the 30 days’ notice period.

11.2 During cross-examination, Tladi testified that the termination of the applicant’s contract of employment was done before 31 December 2019, because there was somebody who met the curriculum needs transferred as indicated in item 1.8 of the appointment letter. Termination of the applicant’ contract was communicated to him (Bundle A, page 13). The effective date for the termination of the applicant’s contract was the 1st July 2019, which was the reason for him to be terminated on 30 June 2019.

12 The second witness of the respondent was Sehlangu Lazarus Mpuwewho testified under oath and in English that:

12.1 He was working at Nakedi Secondary School as a Principal, since 2015 acting and appointed in October 2017. He knew the applicant as a temporary Teacher appointed in their school. The applicant was a substitute who was temporary appointed against the promotional post. The applicant accepted the conditions of his appointment as set out in terms of item 1.8 of the appointment letter. The contract of employment of the applicant seized to exist on 30 June 2019. The applicant was given a service termination letter. The post was during the time of this hearing occupied by Mrs. Modiba M.P through horizontal transfer. Mrs. Modiba knew about the vacancy through a vacancy list submitted to the Circuit Offices. Any post could be filled through R & R, horizontal transfer or advertisement.

12.2 During cross examination Sehlangu testified that the start date of the applicant’s contract was the 1st January 2019 and the end date was 31st December 2019 and it went further to say, until the post is permanently filled, whichever occurs first. Filling of that post could be through R & R, transfer or advertisement. The horizontal transfer came first (01 July 2019), before the 31st December 2019.

Analysis of the evidence and arguments

13 The applicant is alleging that, his contract of employment was pre-maturely terminated by the respondent. He led his evidence to the effect that, his contract of employment was supposed to be terminated on 31 December 2019, but the respondent pre-maturely terminated it on 30 April 2019. He was verbally told by the chairperson of the School Governing Body (SGB) that, his contract was terminated. The applicant went further to testify that, his appointment letter put a condition that his contract will end on 31 December 2019. The second part of the condition which stated that “or until the post is permanently filled, whichever occurs first” was supposed to be adhere to through the advertisement of the post. The applicant testified that the respondent should not have permanently filled his post through horizontal transfer. He does not regard horizontal transfer as a fair manner in which the post he temporary occupied should be filled. His main contention was that, he should have been allowed to continue with his contract until 31 December 2019.

14 The evidence of the respondent was that, the applicant was a CS1 Educator, who was temporarily appointed against a promotional post (HOD). The applicant’s contract of employment was terminated, because the post, against which the applicant was temporarily occupying, was going to be permanently filled. A certain Mrs. Modiba M.P has applied for a horizontal transfer and the school has accepted it. It was the respondent’s evidence that, item 1.8 of the applicant’s appointment letter stated that the contract of the applicant will start from 01 January 2019 and end on 31 December 2019 or until the post is permanently filled, whichever occurs first. The respondent testified that the post was permanently filled by Mrs. Modiba who was horizontally transferred to the school (Nakedi Secondary School). The respondent argued that horizontal transfer was one of the manner in which a post could be filled. The applicant was not verbally terminated on 30 April 2019, but on 30 June 2019 after he served a month’s notice (01 to 30 June 2019). He was terminated in terms of the condition set out by item 1.8 of his appointment letter (page 11 of Bundle A).

15 Item 1.8 of the applicant’s appointment letter (page 11 of Bundle A) states that “Period of appointment is w.e.f 2019.01.01 to 2019.12.31 or Until the post is permanently filed, whichever occurs first”. This means that the contract of employment of the applicant was with effect from the 1st of January to the 31st of December 2019 or until the post is permanently filed, whichever comes first. The respondent testified that horizontal transfer was one of the way in which a post could be filed and I agree with the respondent. The respondent has permanently filed the post and as such the applicant should be terminated, because the permanently filling of post occurred first, that is before the 31st of December 2019. The applicant knew that, he was appointed against a promotional post and did not qualify to occupy it. Even if the post was advertised, he was still not going to qualify for it. The applicant was also aware of the conditions of his appointment as set out in terms of the above quoted item 1.8 of the appointment letter. I do not agree with the applicant when he interprets this item 1.8 to mean that his contract started on 01 January 2019 and should end on 31 December 2019. This item 1.8 should be read and interpreted in full as I quoted it here supra. It is common cause that the applicant’s contract of employment was terminated on 30 June 2019. The applicant was not terminated verbally on 30 April 2019. In his evidence in chief the applicant testified that, he received an SMS informing him to continue to work until 31 May 2019. However, he continued to work until 30 June 2019 as indicated on the service termination letter (page 13 of Bundle A).

In view of the above analysis, I therefore, find that the applicant was not dismissed his fixed term contract automatically terminated due to the occurrence of a specific event, the permanent appointment of a person (Mrs. Modiba) to the post.
16 Award

17 I find that the applicant, Michael Chuene Mosomane was not dismissed. He is not entitled to any relief.

V. Madula
Panelist