IN THE ELRC ARBITRATION
BETWEEN:

Sindisiwe Smangele Pamela Shelembe “the Applicant”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL “Respondent”

ARBITRATION AWARD

Case Number: ELRC234-22/23KZN

Last date of arbitration: 30 SEPTEMBER 2024

Date of submission of closing arguments: 09 October 2024

Date of award: 16 October 2024

NTOMBIZONKE MBILI
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion
0046
Gauteng
RSA

Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za

Physical Address
ELRC Building
261 West Avenue
0046
RSA

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 07 November 2023, proceeded on 24 July 2024, 25 September 2024, and the presentation of evidence was finalized on 30 September 2024. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 09 October 2024.

2. The arbitration was held at the Pietermaritzburg offices of the KwaZulu-Natal Department of Education.

3. The Applicant was present and represented by Mr Ndumiso Mbeje, a Union Official from SADTU. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr ST Daniso, employed by the Department as an Assistant Director for Labour Relations.

4. Bundles of documents were submitted on behalf of the Respondent (Bundle A) and the Applicant (Bundle B) respectively. The proceedings were digitally and manually recorded. The services of an interpreter were utilized and Mr Bheki Hadebe provided interpreting services.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

5. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191 (5) (a) of the Labour Relations Act 66 of 1995 (LRA).

6. I am required to decide whether the Applicant’s dismissal was substantively and procedurally fair or not. The Applicant seeks retrospective reinstatement.

BACKGROUND

7. The Applicant referred an unfair dismissal dispute to the Council on 29 July 2022. The Applicant alleged that she was dismissed on 25 January 2012 and the referral was 3817 days late. The Applicant was required to file an application for condonation, and the application was filed on 29 July 2022. The Respondent did not oppose the application in respect of the late referral and the condonation application was granted by Commissioner Lusanda Myoli.

8. The Applicant was employed on a temporary contract by the Department in 2011, as an Educator at Bhekuximba Primary School earning R14 048,76 as a monthly basic salary.

9. The Applicant stated that she received a letter of appointment from the Department, the contract would commence on 30 May 2011 to 31 December 2011. She claims that she was dismissed verbally by the Principal of Bhekuximba Primary School on 25 January 2012. The Respondent on the other hand disputed that the Applicant was dismissed and stated that the Applicant was on a fixed term contract which terminated upon its expiry date.

10. Section 192 of the Labour Relations Act provides that in any proceedings concerning an alleged unfair dismissal an employee must establish the existence of the dismissal and if this has been successfully done, the employer must then show that it was fair. In this case the dismissal is in dispute, this means that the employee first must establish that there was a dismissal and bears the duty begin leading evidence.

SUMMARY OF EVIDENCE AND ARGUMENTS

The Applicant’s case

11. The Applicant gave evidence and stated that she was employed by Bhekiximba Primary School at the end of May 2011 as an Educator. She said that she had 15 years’ experience as an Educator. She was employed to teach learners which were not allocated an Educator from January to May 2011. She went on to state that she was head hunted by the Circuit Manager, with whom she had previously worked. She submitted that the Manager advised her that she was going to fill a vacant permanent post and that she did not require to serve the one-year probation period because she had experience.

12. The Applicant stated that she was issued with an appointment letter, stating that the effective date of appointment was 30 May 2011, however she only started to work in June 2011, she continued to work up until the closure of the fourth term in December 2011. When the schools re-opened in January 2012 she returned to work because she had not been issued with a termination letter when her contract expired on 30 December 2011. She continued to work as per normal, received a duty load and continuously signed the time sheet.

13. She said that on 23 January 2012 a new Educator was appointed to teach the learners Consumer Studies, which was the subject that she was allocated to teach. On 25 January 2012 she was called to the Principal’s Office and was informed by the principal that her services had been terminated. She enquired regarding her 30 days notice pay as per the appointment letter, but her concern was not addressed.

14. The Applicant stated that on 26 January 2012 the principal contacted her and offered her a four-month contract due to an Educator going on maternity leave. She accepted the offer and provided her services to the Department for four months.

15. Under cross-examination the Applicant was referred to Bundle B, page 1, the appointment letter which she received in 2011, which read as follows:

“I have pleasure in informing you that your employment in the temporary capacity on the establishment of Bhekximba Primary School has been approved subject to the following conditions:
1.1 You are employed against a vacant substantive post, which has been/will be advertised for the filling with due regard to the Department’s obligation to serving educators declared in excess.
1.2 Your employment is on a contract basis and will terminate on the day following the last day of the fourth quarter or, alternatively when the post is filled either in a permanent capacity or by the temporary transfer of an excess educator. In the latter instances, a notice of 30 days will be given.”

16. She was referred to clause 1.1 of the appointment letter and questioned on her understanding of a “substantive post”. She stated that it meant a vacant post that the Department had budgeted for. She confirmed that she was not one of the educators that were in excess and that she did not understand that she was employed on a contract basis. The Applicant stated that it was improper for the Department to appoint another Educator, and disregard her to fill the position permanently as she qualified.

17. It was put to the Applicant that the Department was not obligated to give her 30 days’ notice because her services were not terminated prior to the end of her contract. She answered and said that the appointment letter stated that she would be given 30 days’ notice when her services are terminated.

18. The Applicant stated that she was dismissed on 25 January 2012, and she was offered and accepted a new contract with the Department on 26 January 2012. She confirmed that she substituted an educator on maternity leave from 26 January 2012 to May 2012. She was referred to page 13 of bundle A, the Applicant’s service record, which stated that the second contract resumed on 01 January 2012 and ended on 09 May 2012. The Applicant confirmed that she was paid for the entire contract period.

The Respondent’s case

19. The Respondent called Mr Masibonge Zama as its only witness. Mr Zama stated that he was employed by the Department as a Chief Personal Officer with the Human Resource Support Service.

20. He stated that the Applicant was employed on a fixed term contract. He explained that when an employee is employed against a substantive post it means that there is a vacant post within the approved post allocation for that school and that a temporary Educator is appointed while waiting for the post to be filled permanently.

21. He submitted that excess educators are educators which are additional or surplus to the approved post allocation. The Department has an obligation to place the excess educators accordingly.

22. He was referred to clause 1.2 of the appointment letter and he explained that the Applicant was appointed on a fixed term contract, which had a start and end date. He stated that if the post was filled on a permanent basis by the transfer of an excess educator during the course of the Applicant’s contract, which would have meant that the contract of the applicant would have terminated prior to the termination date of the contract, the Applicant would have been entitled to 30 days’ notice pay. In the applicant’s instance there was no obligation for the Department to submit 30 days’ notice to the Applicant because the contract was not terminated prior to its end date.

23. He stated that the Applicant was offered and accepted the second contract for an employee who was on maternity leave. The Applicant was compensated for the entire contractual period, which was from 09 January to 09 May 2012.

24. Under cross examination the witness stated that the Applicant was not replaced by the transfer of the excess educator to the school, because the Applicant was under a contract.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. Both the Applicant and Respondent’s versions are recorded in detail and will therefore not be repeated in further detail herein. I will only refer to those salient facts which are in my view pertinent for determination of this matter.

26. The dispute before me concerns whether or not there was a dismissal, if I find that there was a dismissal, whether it was substantively and procedurally fair. On the issue of procedural fairness, the Applicant contended that she was verbally dismissed by the principal of the school, without being given any prior notice. On the issue of substantive fairness, the Applicant maintained that she had an expectation to permanent employment created by the Circuit Manager and by the fact that she was not given a termination letter upon the expiry of her fixed contract.

27. The Department on the other hand, disputed that the Applicant was dismissed and that there was any reasonable expectation for permanent employment. The Respondent alleged that the appointment letter recorded a specific duration, which had a commencement date and an end date, and that the Applicant presented herself, offered her services and that she was renumerated for this period. The Respondent stated that the Applicant’s fixed term contract had expired and that there was no employment relationship in existence thereafter.

28. Section 186(1) of the Labour Relations Act sets out instances which constitute a dismissal. It appears from the facts of this case that the applicant seeks to rely of section 186(1)(b) which states the following:

“(1) ‘Dismissal’ means that–
(a) . . .

(b)
(i) an employee 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 or

(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 offered to retain the employee on less favourable terms, or did not offer to retain the employee.”

29. The applicant claims that she had expected that she would be appointed to the position on a permanent basis. This is what she was informed by the Circuit Manager who had apparently recruited her. The Circuit Manager was never called to testify at the arbitration. I was accordingly not given the benefit of her version, neither was I given any explanation on why this crucial witness was not called to testify. To this end the applicant’s version in respect of an expectation given to her by the Circuit Manager is not supported, it remains inadmissible hearsay evidence.

30. In the case of SA Rugby Pty Ltd v SARPU & another [2008] 9 BLLR 845 (LAC) the following was held

“[39] The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of section 191 of the Act.

[43] What section 186(1)(b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms, but the employer only offered to renew it on less favourable terms or did not renew it. The operative terms in section 186(1)(b) are, in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed-term contract or renew it on less favourable terms. The fixed-term contract should also be capable of renewal.

[44] The appellants carried the onus to establish that they had a “reasonable expectation” that their contracts were to be renewed. They had to place facts which, objectively considered, established 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 fixed-term contract on the same or similar terms. As soon as the other requirements of section 186(1)(b) have been satisfied it would then be found that the players had been dismissed, and the respondent (“SA Rugby”) would have to establish that the dismissal was both procedurally and substantively fair.

[46] Clause 3.2 stating that the contracts automatically terminated on the dates set out and that the players acknowledged that they had no expectation that their contracts would be renewed on the terms contained therein or any other terms is, to me, of critical importance. This clause and other exclusionary clauses referred to above were deliberately included in the contracts in order for them to be part of the contracts and to mean what they were intended for. It would, therefore, be expected of the appellants to place more credible facts to make their expectation reasonable in the face of clause 3.2. A mere ipse dixit that there is an expectation, based on flimsy grounds, would not suffice.”

31. No objective evidence has been placed before me to suggest that a reasonable man in the position of the applicant would have expected that her contract would be renewed on the same or similar terms. In fact, what is apparent from the evidence that was placed before me is that the parties were at all material times aware and accepted that the applicant was employed on a fixed term basis. Her contract was extended again in January 2012 when she replaced another educator who was on maternity leave. This clearly demonstrates that the initial engagement had run its course, the employment relationship was resuscitated when she was offered a further fixed term contract.

32. The applicant’s contract terminated ex lege or by operation of law, and she cannot, as of right, claim that she was dismissed without providing objective evidence that supports that she had a reasonable expectation of the contract being renewed.

33. In the case of Joseph v University of Limpopo & others [2011] 12 BLLR 1166 (LAC) the following was held:

“[35] The onus is on an employee to prove the existence of a reasonable or legitimate expectation. He or she does so by placing evidence before an arbitrator that there are circumstances which justifies such an expectation. Such circumstances could be for instance, the previous regular renewals of his or her contract of employment, provisions of the contract, the nature of the business and so forth. The aforesaid is not a closed list. It all depends on the given circumstances and is a question of fact.”

34. In respect to the further reasons that the applicant alleges gave her the impression that she will be permanently employed, such as the fact that she continued to work when schools reopened in January 2012 or that she was not given notice of termination.

35. It seems to me that the conditions contemplated in the appointment letter were not such that notice was always required upon termination, firstly because, the time of her contract had reached its expiry date in December, which she was alive to during the subsistence of the agreement, and secondly because none of the conditions set out in the letter of appointment were present. She was not being replaced because of a transfer or the filling of the position.

36. Her contract was extended for a further four months because she was replacing an employee that was on maternity leave. This does not create any expectation of permanent employment in my view.

37. I accordingly find that the applicant has failed to demonstrate that she had an objective expectation that her contract would be renewed on the same or similar terms. This being the case the applicant was not dismissed as contemplated in section 186(1)(b) of the Labour Relations Act.

38. It also appears from the factual matrix that the applicant has a further legal hurdle, which simply cannot be overcome. The applicant’s claim appears to have prescribed in terms of the Prescription Act 68 of 1969, it does not appear from the evidentiary material that the applicant filed the referral in time; within three years. Condonation of the referral does not in and by itself revive a claim sounding in money brought out of time. In this regard the case of Mpanzama v Fidelity Guards Holdings (Pty) Ltd (2000) 12 BLLR 1459 (LC) bears precedence in respect of the application of prescription to arbitration awards. In this regard the referral is again bound to fail as the remedy sought in respect of back pay is unenforceable.

AWARD

I accordingly make the following award:-

1. The Applicant was not dismissed
2. The Council does not have jurisdiction to entertain the referral.

NTOMBIZONKE MBILI
Arbitrator 16 October 2024
ELRC234-22/23KZN