IN THE ELRC ARBITRATION
BETWEEN: ELRC862-23-24GP

JOHANNES D RASHOKENG “the Applicant”
and

WESTERN TVET COLLEGE – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: ELRC862-23/24GP

Date of award: 15 October 2024
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 25th and 26th of September 2024 and proceeded as such. Both parties were present, the applicant represented himself and the Respondent was represented by Mr. A. Maseko the Employee of the Respondent.
1.2. The parties agreed to a face-to-face hearing to mitigate against postponements due to network and load shedding issues.
2. BACKGROUND

2.1. The Applicant was employed by the Respondent (The Western TVET College) as an Electrical Engineer Lecturer with no Electrical Trade Certificate at Westcor TVET College for 2.5 years on a series of fixed term contracts.
2.2. The Applicant’s contract came to an end.
2.3. The Applicant was not absorbed when some of his colleagues were absorbed.
2.4. Dissatisfied the Applicant referred a dispute to the ELRC for unfair dismissal.
2.5. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal for misconduct as provided for in section 191(5)(a)(i) of the Labor Relations Act 66 of 1995 (LRA.)
2.6. I am now required to decide whether there was a dismissal and if I find that there was a dismissal then to decide whether the dismissal of the applicant was unfair substantively and procedurally and then to make an order accordingly.
3. APPLICANT’S EVIDENCE AND ARGUMENTS

3.1. The Applicant was the only witness.

3.2. The Applicant testified under oath and stated that he was appointed with a Diesel Mechanic trade test in an Electrical Engineering post. He started as a Lecturer on the 02 June 2021. His first contract ran from the 02 June 2021 to 31 December 2021, before the 9th of December 2021, the College extended his contract until February 2022 because students had not written their exams due to COVID.

3.3. The second contract ran from March 2022 to 31 July 2022.

3.4. The third contract started on the 23rd of August 2022 to 31 December 2022. At this point he applied for permanent posts which had become vacant in the Electrical and Mechanical Departments. He was shortlisted and interviewed for the Diesel Mechanic Lecturer post. He did not succeed in the interview because he did not have the required teaching experience in this Department.

3.5. The fourth contract started on the 5th of June 2023 to 31 August 2023. He was called in to report for duty without applying.

3.6. The fifth contract started on the 6th of September 2023 to the 31 December 2023 and again he had not applied for this contract.

3.7. The Applicant argued that some of his colleagues were employed permanently but he was not. He argued that S 186(1) (d) applied because the employer refused to re-employ him having re-employed others.

3.8. He argued that according to PPN, lecturers who have been in the system for 2 years had to be absorbed permanently. The applicant relied on a letter Annexure “B” and read it into record. Letter written by GM Reuben Maleka of PSA dated 19 April 2024. Upon enquiry he was informed that he did not qualify for the post, yet he has always been appointed on contract for the same thing.

3.9. He stated that he was not supposed to have applied for the posts that were advertised, he should have been absorbed. He stated that he is demanding payment of his full salary from January 2023 until May 2023, and compensation each time the employer made him sign a contract two weeks into the month. He testified that the employer did this to save money, and he was demanding that the money be paid to him in full.
3.10. The Applicant testified that he was unfairly dismissed because the employer failed to absorb him.

3.11. Under cross examination the Applicant conceded that he was on a fixed term contract which ended on the 31 December 2023.

3.12. The Applicant closed its case.

4. RESPONDENT’S EVIDENCE AND ARGUMENTS
MANDISA HLATSHWAYO (HR Manager)

4.1. She testified under oath and stated that the Applicant had signed the contract with the employer. The contract was a fixed contract ending on the 31st of December 2023. The Applicant had signed the contract with full knowledge that it was ending on the 31st of December 2023 without notice. The new contract supersedes any other contract previously signed. She reiterated that the Applicant’s contract came to its natural end on the 31st of December 2023.

4.2. The Applicant was appointed because there had been resignations, or a Lecturer had passed. Whilst the College commences with the process of appointing a new lecturer, they would appoint a lecturer temporarily on a fixed term contract so that learning is not affected by the non-availability of a permanent lecturer.

4.3. She testified that the Applicant had not met the minimum requirements in the appointment of a replacement of Mr Davies who had passed.

4.4. She testified that the College Implementation Committee had agreed to migrate permanent employees from College Payroll to persal payroll, meaning that College paid employees were the ones that were to be migrated to persal payroll. In June 2022 those that fell under this category were migrated.

4.5. She explained the structure of the CIC (College Implementation Committee) as follows:

4.6. The Principal of the College is the Chairperson
Deputy Principals form part in this Committee
All Campus Managers
All recognised Trade Unions in the College (PSA, NEHAWU, SADTU, NAPTOSA)
HR Manager
Assistant Director Labour Relations
Representatives from the College Council.

4.7. She testified that Annexure “B”, the Union PSA was giving feedback to its members on contract appointment. PSA made a request for the contract employees to be made permanent on condition that they had 2 years’ service. She explained further that this request was not made at this College, hence all the vacant positions were advertised, and lecturers were appointed through recruitment and selection process and not through absorption. She reiterated that Annexure “B” is not a Government documents, it is a letter from the Union PSA to its members.

4.8. The Committee identified all permanent employees who were on the College payroll, and they were migrated to persal.

4.9. She reiterated that the College did not migrate anyone who is temporarily appointed, only those that were permanent from College payroll to Persal Payroll. All the vacant positions were advertised and filled through recruitment process.

4.10. She explained that Annexure “D” is a circular from HR Management, giving an update and status to colleges on the implementation of the PPN.

4.11. She further explained that the policy was there to standardize the process across colleges, so that all would follow the same processes when implementing the PPN approved standardized structure.

4.12. She stated that she was not aware of any monies owed to the Applicant, she has not received any enquiries.

4.13. The witness denied that the Applicant was ever dismissed and reiterated that his contract came to its natural end.

5. ANALYSIS OF EVIDENCE

5.1. Section 192 (1) of the Labour Relations Act 66 of 1995 (LRA) provides that in any proceedings concerning an alleged unfair dismissal an employee must establish the existence of the dismissal. This is particularly important when an employee alleges that he was dismissed, but the employer disputes the claim.

5.2. In the case of Makosi / Nqangdo Trading Enterprise (2016) 25 CCMA, the Commissioner held that the employee must establish some overt act by the employer that is the proximate cause of the termination of employment.

5.3. Fixed term contracts can be used for employees to work for a specified length of time or to work on a set project. These arrangements can give employers both certainty and flexibility. A fixed term contract will usually expire automatically at the end of the term or project without the need for notice. Fixed term arrangements are particularly useful for absence cover, to meet increased short-term business demands or completion of a specific project.

5.4. In this case, the Respondent testified that the Applicant was called to cover for a lecturer who had passed and at some point, he covered for a lecturer who had resigned. There were specific reasons each time the Applicant was appointed temporarily.

5.5. It would appear that the Applicant was on a Pure fixed term contract which expires automatically at the end of the term. The Applicant conceded that his contract came to an end.

5.6. In SA Rugby (Pty) Ltd v CCMA and Others [2006], the employee’s reasonable expectation of contract renewal under Section 186(1)(b) of the LRA was dealt with. The court found that where an employee’s fixed-term contract ends, they can claim dismissal if they had a reasonable expectation of renewal.

5.7. In the present case, the Applicant did not establish any reasonable expectation that the contract would be renewed. Testimony from Ms. Hlatshwayo confirmed that the agreement explicitly stated the contract was for a fixed term and that no agreement existed that promised further employment. The Applicant’s reliance on Exhibit B (which was not authored by the Respondent) also fails to substantiate a reasonable expectation of renewal.
5.8. The dispute as I understood the Applicant was that because he had had fixed term contracts on and off for 2years he therefore qualified to be migrated and to be made permanent.
5.9. In Dierks v University of South Africa [1999], the Labour Court ruled that an employer is not obliged to convert a fixed-term contract into permanent employment unless there is clear evidence that such an expectation was created or agreed upon.
5.10. The Applicant’s claim that he should have been migrated to permanent employment was unsupported by the evidence. Ms. Hlatshwayo’s testimony indicated that the PPN Policy only applied to permanent employees, and the Applicant, who was employed on a fixed-term basis, was not eligible for migration.
5.11. The Applicant relied on a letter written by the General Manager of PSA which was communication / feedback to the Union members on contract appointment.
5.12. The Respondent’s witness Ms Hlatshwayo explained that PSA had not made the request to their College and thus the advertising of all permanent posts. She further explained that the College Implementation Committee had taken a decision to migrate the College permanent employees from College payroll to Persal payroll.
5.13. The Applicant testified that he applied for the advertised permanent posts, both Electrical and Mechanical, and was not successful.
5.14. It is therefore my finding that the Applicant has not successfully established the existence of the dismissal.
5.15. I accordingly make the following award

6. AWARD

6.1. I find that there was no dismissal.

6.2. This application is dismissed.

GCINA MAFANI
Arbitrator 15 October 2024
ELRC862-23/24GP