In the arbitration between:

G.P.Ward Applicant

And

Western Cape Education Department Respondent

ARBITRATION AWARD

DETAILS OF REPRESENTATION

The arbitration was heard on the 4 March 2005, at the offices of the Western Cape Education Department (WCED) in Cape Town. Applicant represented himself and respondent was represented by Kenny Petersen .

ISSUES TO BE DECIDED

I was asked to decide whether the non renewal of Mr Ward’s contract of employment amounted to an unfair dismissal in terms of Section 186(1) of the Labour Relations Act 65 of 1995 and in particular whether applicant had a reasonable or legitimate expectation to have his contract renewed. I was also asked to decide on whether the termination of applicant’s contract was procedurally and substantively fair in terms of Section 189 of the Labour Relations Act 65 of 1995.

BACKGROUND AND ISSUES NOT IN DISPUTE

Mr Ward was nominated and appointed as a substitute educator, at the Grassy Park Secondary School. Applicant served as a substitute educator in the commerce department for Mr J.Fred, who was booked off sick. Each term, the school awaited medical certificate booking Mr Fred off before a new application was filled out by applicant and a new nomination was forwarded to the WCED . On each occasion that such application was made, the WCED accepted the nomination of applicant, and contracts were forwarded to him for his acceptance.

It was also common cause that applicant was a post level 1 educator, whilst Mr Fred’s position was that of a post level 3 educator. In terms of their establishment for 2005, the school had to lose three posts of post level 1. Applicant was informed by the principal at a meeting which took place during November 2004 that because of the drop in learner numbers, the commerce department would have to reduce the number of temporary/substitute educators from three to two. The principal also informed applicant that the principle of “Last in First Out” would be used in deciding who would leave. Applicant was informed that he would have to leave.Mr Fred had applied for medical boarding, which had not been approved at this stage. The school advertised other posts for 2005, for which Mr Ward did not apply.

OVERVIEW OF EVIDENCE

The WCED presented the evidence of Mr Clive Stadler, the headmaster of Grassy Park Secondary School. He testified that MrWard was a substitute teacher and his appointment was always dependant on the receipt of a medical certificate confirming that Mr Fred had to be put off work. Mr Ward was then nominated for periods of three months . This happened on four occasions during the year 2004. Mr Ward was aware of the fact that his nomination was dependant on Fred being booked off work.

Towards the end of 2004, he called Mr Ward to a meeting at which two other educators, Mr Hockey and Mr Simons were also present. He informed them that the number of learners at the school had dropped and that as a result of that the school would have to lose two educators, one of them being from the commerce department. He informed Ward that he would have to leave. He testified that Ward did not respond at the time and he assumed that he was happy to leave. He was therefore surprised when Ward subsequently lodged a dispute with regard to non renewal of his contract.
Mr Stadler denied that he had created any expectation that applicant would be nominated in Mr Fred’s post if he was medically boarded for 2005. He testified that Fred’s post became a substitute post for 2005, but that the post was no longer for the commerce department. Fred’s allocation for 2005 became language , arts and culture. At the end of December 2004, all available posts for 2005 were advertised and he could not understand why Ward did not apply for any of the posts.

Under cross examination Mr Stadler was questioned on whether in view of the implementation of OBE, it was still necessary to have specialist teachers. His response was that the HOD post was still a specialist post and that post level 1 educators were multi-skilled. It was also put to Stadler that during the third term, he had promised Mr Ward that if Fred’s position became vacant, the post would be given to him. Stadler’s response to this was that any principal who made such a promise would be ill informed.

Furthermore, there had been problems with applicant’s completion of administrative work during the first and second terms and he therefore could not have made such a promise in the third term. He had also called Mr Ward to his office on at least one occasion per term to discuss his performance.

Mr Ward testified that the headmaster of the school had promised him that he would be appointed in Fred’s post and that he therefore had a legitimate expectation to be appointed .This promise was made specifically when it became apparent that Mr Fred would apply for medical boarding. There were no problems with his performance in the
classroom, but conceded that there were some problems with the keeping of records. He had made appointments with Stadler to discuss the problem that he was having with regard to the writing of marks in the mark book, but Stadler had not kept any of the appointments.
He felt aggrieved that he had been singled out to be the one to leave and felt that this had happened because of an argument that he had had with the Deputy Principal. He testified that he had challenged Stadler about this privately. He also felt that the principle of “last in first out” had not been applied because he was not the “last one in”.

Under cross examination, he testified that this was the third time that he was challenging the process of appointment He was aware that he was in a substitute post and he was also aware of the difference between a substitute post and a contract post. During 2004, he was aware that his appointment was dependant on Fred being put off sick. He testified that it was common knowledge at the school that Fred would be boarded and that Stadler had promised him that he would be appointed in Fred’s post. He was not aware of any collective agreement that stated that such a post had to be advertised . It was common practice for the headmaster to use his discretion and to nominate a candidate for the post. He felt that the headmaster was covering up when he denied that he had made any promise to him and that an expectation had been created by the headmaster on numerous occasions, by implication as well as directly.

ANALYLIS OF EVIDENCE AND ARGUMENT

The issues to be determined are twofold:-
1. whether applicant had an expectation and if so whether it was a reasonable expectation to have his contract for a substitute position renewed.
2. whether, in the light of the evidence and the WCED’S contention that applicant was not offered a position because of the operational requirements of the school, there was procedural and substantive fairness in terms of Section 189 of the Labour Relations Act 65 of 1998.

I am mindful of the fact that disputes based on operational requirements are normally dealt with by the Labour Courts. However, it is my view that in the circumstances of this case, the issue of reasonable expectation is linked to the operational requirements of the employer.

It is common cause that Mr Ward was appointed in a substitute position. The contract was a fixed term contract for a specific purpose-that purpose being to replace Mr Fred who was booked off sick. It has long been recognized by our courts that previous renewals of a fixed term contract may lead to the reasonable expectation of further renewal. In Truter v Mecham (1997)18ILJ 803 it was held that the number of times that a contract was renewed was one of three criteria for the determining of the reasonableness of an expectation. In Natal Fire Protection Association 1995 BLLR 110 (IC) , the Industrial Court pointed out that an employer enters into a fixed term contract usually because the task to be performed is a limited or specific one , or the employer can offer the job for a limited or specific period. Mr Ward’s contact was renewed on four occasions during 2004 and as long as Mr Fred was booked off sick. It is common cause that Mr Fred had made an application for medical boarding and that at the time that Mr Ward was informed that his contract would not be renewed, the medical boarding of Mr Fred had not been approved. However one can conclude from the fact that Mr Fred had made an application to be medically boarded that he did not intend to return to school in the year 2005. His position would therefore still be available for 2005. An important consideration is the reason the employer offered the employee the fixed term contract in the first place, and the reason the employer subsequently renewed it (Dierks v University of South Africa (1999) 20 ILJ 1138(LC)). Mr Ward was offered the contract because Mr Fred was sick and the contract was renewed as long as Mr Fred was still sick. On the face of it, it would appear that Mr Ward had a justifiable reasonable expectation.

I cannot, however, make a finding on the reasonableness of Mr Ward’s expectation without taking into account the further circumstances of this case. The headmaster testified that he had encountered problems with Mr Ward’s performance, particularly, the non completion of certain administrative tasks and that Mr Ward had been called into the office to discuss the situation. Mr Ward conceded that there were problems with his failure to enter marks into the markbook . The issue of Mr Ward’s work performance was clearly in question.

It is also common cause that Mr Ward was called into a meeting during November 2004 where he was told that due to a change in the schools establishment for 2005, the school would have to lose three temporary/substitute educators, one of them being in the commerce department. Mr Ward was asked to leave. It is noteworthy that Mr Ward did not respond to this information at that meeting nor did he apply for any of the other posts that were advertised. Mr Ward is of the view that according to the requirements in the commerce department, another teacher is needed. I will not make a finding on whether another teacher was needed in the commerce department or not. Our Courts have generally left employers a free hand when it comes to selecting employees for retrenchment. It is up to the employer to determine what its operational requirements are. I must therefore accept the evidence of the headmaster that the school needed to lose one teacher in the commerce department.
The headmaster testified that Mr Fred’s allocation changed from commerce to language, arts and culture. Mr Ward’s argument is that he is a multi-skilled educator and could therefore still be appointed to Mr Fred’s position in the new allocation . However, the headmaster testified that a post level three position requires an incumbent to be a specialist in a particular field. This would imply that due to the new allocation of Mr Fred’s post, the post would now require a specialist educator in the field of language, arts and culture. Mr Ward, being form the commerce department would not be able to fit this post. My ruling therefore is that due to change in circumstances of the specific post in question, of which Mr Ward was made aware, he cannot be said to have a reasonable expectation. The WCED, has in any event submitted that Mr Ward has been employed at another school since mid-February 2005

In his written submissions to me, Mr Ward referred me to a previous dispute that he had lodged in 2003 in which the arbitrator ruled that he had a legitimate expectation. The circumstances and facts of that dispute were different. The arbitrator in that case pointed out that there was no planned and deliberate linking of the contract periods to specific operational needs.

Mr Ward also made submissions with regard to procedural and substantive fairness in terms of Section 189 of the Labour Relations Act 65 of 1998. In terms of the Labour Relations Act, disputes with regard to operational requirements are dealt with by the Labour Courts. Accordingly I have no jurisdiction to make a finding in this regard. I have considered operational requirements only in so far as there was a link between the operational needs of the employer and the issues considered in terms of Section 186(1)(b) of the Labour Relations Act 65 of1998.

AWARD
On the evidence and argument before me applicant’s request for compensation is denied.

ARTHI SINGH
ARBITRATOR
19/04/05

EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

CASE NUMBER PSES 560-04/05 WC
APPLICANT G P WARD
RESPONDENT DEPARTMENT OF EDUCATION WC
NATURE UNFAIR DISMISSAL
ARBITRATOR A SINGH
DATE OF ARBITRATION 4 MARCH 2005
VENUE CAPE TOWN

REPRESENTATION:

APPLICANT IN PERSON
RESPONDENT K PETERSEN

AWARD:

1 On the evidence and argument before me applicant’s request for compensation is denied.

DATE OF AWARD 19 APRIL 2005