IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT THE FREE STATE EDUCATION DEPARTMENT (KROONSTAD)

In the matter between

NTHABELENG MOKOTELI Applicant

and

DEPARTMENT OF EDUCATION: FREE STATE Respondent

ARBITRATOR: Monde Boyce

HEARD: 28 June 2023 & 05 July 2023

CLOSING ARGUMENTS: 05 July 2023

DATE OF AWARD: 09 July 2023

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] The ELRC initially set the matter down for 28 June 2023 at the satellite District Office of the Freestate Education Department in Kroonstad. On the above-mentioned date, the matter could not be concluded, and a further date of 05 July 2023 was agreed upon. The ELRC set the matter down for arbitration for 05 July 2023, and both parties attended the process. There was no requirement for an interpreter since the applicant and the witnesses called were conversant in and were comfortable testifying in English. On both dates, the applicant was in attendance and represented by Mr Khumalo, a practising attorney. Mr Gubuza, the Deputy Director: Labour Relations, appeared for the respondent.

[2] Both parties submitted bundles of documents. The proceedings were digitally recorded, and typed notes were taken.

THE ISSUE TO BE DECIDED:

[3] I am required to decide whether the applicant was dismissed within the meaning of dismissal envisaged by Section 186(2)(1)(b) of the Labour Relations Act 66, 1995 as amended (LRA) and to grant the appropriate relief where I find in the applicant’s favour.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant was employed as a temporary educator Post Level 1 and commenced work in this capacity from 01 March 2021 until 30 June 2022. She earned a gross salary of R23, 336.50 per month at the time of termination of her contract. He temporary employment contract was terminated on 30 June 2023. Dissatisfied with the termination of her contract, the applicant referred an unfair dismissal dispute to the Council for conciliation and, when conciliation failed, referred the dispute for arbitration. She seeks retrospective reinstatement as remedy.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s Evidence

[5] The applicant, Miss Nthabeleng Mokoteli, testified that she referred a dispute to the Council after the employer gave her reasonable expectation that there is permanent employment available. The respondent, however, failed to deliver on this expectation. Page 1 of the applicant’s bundle contains the temporary contract she signed with Lereng Secondary School. The Deputy Principal, Mrs. Notsi, was at the time of the conclusion of the contract acting as the school principal. Because of Miss Notsi’s increased duties, the school needed the services of a Post Level 1 educator who would assume her responsibilities. Upon the signing the contract, she was informed that once Mrs Notsi was appointed as a principal of the school, she (Miss Mokoteli) would be appointed on a permanent basis. The above discussion took place between her (Miss Mokoteli), Mrs Notsi and the Head of Department, Mr Lephotho on 05 April 2021 when she signed the temporary contract. Mrs Notsi was, at the time of her appointment, teaching Geography. She (applicant) was appointed to teach Geography at Grade 10 and later Grade 8.

[6] She subsequently signed another temporary contract with the School’s Governing Body (SGB) where the SGB undertook to pay her a salary of R7, 000.00 which she would refund the SGB once paid by the department. The contract with the SGB was an interim arrangement meant to give the applicant financial assistance until paid by the department. Page 8 contains the temporary contract she signed with the department commencing from 01 March 2021, and this appointment was until 30 June 2021. She received the above-mentioned contract after she had already commenced her duties. After the expiry of this contract, she continued working and there was no communication from the department as to the status of the contract. She assumed that she was now appointed on a permanent basis, and also because the post that Mrs Notsi held was now vacant. Because Mrs Notsi had been appointed permanently as a principal, she believed that she was also then employed permanently.

[7] Because she received no communication from the department about the status of her employment, she went to the Provincial Department’s Education offices, and she received the letter contained on page 11 of her bundle dated 11 November 2021 confirming her temporary appointment as a Post Level 1 educator from the month of April 2021 till the date of 11 November 2021. Page 19 of the respondent’s bundle contains another temporary contract which was to end on 31 December 2021. She did not receive this letter. During the month of January 2022, she continued teaching the same subjects and at the same school and was never told that her contract had ended.

[8] On 25 April 2022, she received a notice of termination as contained on page 13 of her bundle which stated that her contract had been terminated owing to appointment of another educator who was to commence work on 01 April 2022. She however, after 01 April 2022, continued working at Lereng Secondary School. She did not meet the new educator who was said to have been appointed. She then lodged a grievance to the department complaining about termination of her contract. In that grievance, she sought, as an outcome, to be absorbed permanently to the post. She never received any response from the department until she referred a dispute to the ELRC. It was only after she referred the dispute to the Council that she was advised by the department that her issue was being attended to. She was told to stop reporting for work from 01 May 2022, but she however continued receiving payment until 30 June 2022.

[9] She believed that the reason for her appointment in the first place was because the principal’s post was vacant and she further believed that after the acting principal was absorbed, she would be permanently employed. She however received no further contract from the department after the termination notice she received. Because she received no further contract after the initially contract she signed, she believed that she had now been permanently employed.

The Respondent’s Evidence

[10] The respondent called Miss Itumeleng Adelaide Notsi who testified that she is currently employed as a principal at Le reng Secondary School. Before being appointed as principal she acted in the position until she was permanently appointed to the position in May 2021. When she started acting at the school, the applicant was appointed at a temporary post against a PL4 post. The applicant continued teaching, and when she (Miss Notsi, was appointed as principal, the applicant continued teaching. In April 2022, Mr Sesing who was HOD was appointed as permanent deputy principal. When Mr Sesing was appointed as deputy principal, he taught History and the needs of the school had changed. The school needed someone else who would teach the History subject that Mr Sesing was teaching. Another educator was appointed to teach Tourism and History. The applicant employment was then terminated.

[11] When she acted as principal, a need arose for a Geography teacher to be appointed. The school could not continue employing the applicant as a Geography teacher because there are teachers at the school who taught Geography. The temporary educator that was appointed to teach History is still employed in this capacity at the school. When Mr Sesing was appointed as a deputy principal, a PL2 post became vacant for which an appointment was made. The applicant was not converted after three months because she was acting against a senior post. Where she had to be converted, she would have to be converted to PL4. Where there is a senior post that is vacant, a PL1 educator is appointed on a temporary basis until an appointment is made. Temporary educators against all schools are appointed on a temporary basis.

[12] To the extent that the applicant alleged that she (Miss Notsi|) and Mr Lephotho stated that she would be permanently employed, she disputes same on the basis that she never had any such conversation with the applicant. She could not have done that because at school level, appointments are not discussed. It is not correct that there was no communication with the applicant regarding the status of her contract. She called all temporary educators and advised them of the status of their contracts.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[13] In the present case, the applicant alleged unfair dismissal relying on Section 186(1)(b) of the LRA. Given that the respondent disputed that it created reasonable expectation, the applicant, as envisaged by this section, bore the onus to prove that reasonable expectation of permanent employment was indeed created. The standing principle now asserted by the Courts is that the party on whom the onus rests, must discharge the onus. It is once the applicant, in the present case, succeeds in discharging the onus that the evidentiary burden would shift to the respondent to prove that no reasonably expectation was created.

[14] Courts have also set out the test for reasonable expectation. There has to be subjective and objective basis for reasonable expectation. Even if I were to find, as Mr Khumalo for the applicant, argued, that subjective basis existed for the applicant to claim that reasonable expectation was created, equally important would be a consideration of whether the objectivity test has been met, in other words, whether, on objective facts that the applicant would have placed before me, reasonable expectation was created and thus, dismissal established. Having heard evidence and arguments, I am not persuaded that the applicant has discharged the onus. On the contrary, I find the respondent to have shown that no reasonable expectation was created.

[15] Evidence before me, and which evidence the applicant did not gainsay on account of it being, in any event, common cause, is that she (applicant) was employed as a PL1 educator on a temporary contract against a vacant promotional PL4 post that the then acting principal of Lereng Secondary School, Miss Notsi, occupied. It is common cause that on Miss Notsi being permanently appointed to the position of principal, the applicant still continued working until termination of her temporary contract on 30 June 2022. The applicant relies on the respondent having not communicated with her on the status of her temporary employment after the set expiry date of her initial contract that was to run from 01 March 2021 to 30 June 2021 to assert that she considered herself to be permanently employed. The further ground the applicant relied on was an alleged discussion between her, Miss Notsi, who was the acting principal at the time of her appointment and the HOD, Mr Sesing where the applicant claimed that Miss Notsi stated that she (applicant) would be permanently employed once her (Miss Notsi) permanent appointment was confirmed. The applicant further, among other grounds, relied on her claim that her services as a Geography teacher were still needed at the school. But the evidence of the respondent pours cold water to these assertions as shall be clear below.

[16] For starters, the ELRC Collective Agreement 4 of 2018 sets out clear and unambiguous guidelines on justifiably reasons for the appointment of temporary educators, the requirements for conversion of such educators to permanent employment and the procedure to be followed for conversion and absorption on a permanent basis of temporary PL 1 educators. Not only does the collective agreement provide for the above, but it goes further (and I suspect the drafters of the agreement anticipated instances where temporary educators would claim reasonably expectation of permanent employment as is the case with the matter before me) to set out the relevant factors that should be considered to determine a reasonable expectation.

[17] Having carefully read the agreement, in particular Clause 2, 3 and 4 of the collective agreement, I cannot find assertions by the applicant to find accommodation. Miss Notsi was an acting principal at the time of the applicant’s appointment and was in no position to make permanent appointments of PL1 educators. Miss Notsi, during her testimony, vehemently denied that any discussion around permanent appointment of the applicant had taken place and that her engagement with the applicant was around her temporary appointment at the school. But even if such a discussion had taken place, and as correctly argued by the respondent, Miss Notsi would have been in no position to or lacked the necessary authority to carry out such a promise. Conversion or absorption of PL1 temporary educators to permanent posts can only be done by the respondent in the person of the HOD.

[18] The test for when reasonable expectation would be legitimate was set out in Minister of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd where the Supreme Court of Appeal (SCA) in paragraph [65], and citing other authorities amongst which is the case of South African Veterinary Council and Another v Szymanski, dealt in detail with the test for legitimate expectation which may give rise to reasonable expectation.

[19] In the above cited case, the SCA, among other things, set out five requirements for legitimacy of the expectation. In paragraph [65] , and citing authorities, the Court held that, among other requirements: “The representation must have been induced by the decision-maker and “The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate.” There is a further requirement that a contract fixed for a particular period must be capable of renewal. This principle was restated in South African Rugby Players Association v SA Rugby (Pty) Ltd . It was not enough for the applicant to merely assert reasonably expectation of renewal of her contract without showing why, in circumstances where there was no funded, substantive and vacant position and where objective facts point to impracticability of permanent appointment or conversion to the post, the respondent should still have appointed her permanently to the post.

[20] The applicant was appointed on a temporary basis against a promotional post, and this post was a PL4 post. On appointment of Miss Notsi on a permanent basis, Mr Sesing who was the HOD at the school was a permanently appointed to the post of deputy principal, and the applicant continued teaching with her temporary appointment then against the PL3 post vacated by Mr Sesing. Evidence by Miss Notsi was that there was no vacant PL1 post at the school against which the applicant would have been appointed. For the applicant’s claim to perhaps succeed, her temporary appointment would have had to be against a funded, substantive and vacant PL1 educator post and the procedure as envisaged by Clause 4.4 of the collective agreement would have had to be followed. The temporary appointment of the applicant was against a promotional PL4 post which did not fall under the category of temporary appointments that would have caused conversion or absorption to a permanent appointment where the applicant was eligible. She thus could not reasonably expect to be permanently employed in instances where the post she was temporarily appointed against was not a funded, substantive and a vacant post.

[21] Also, evidence by Miss Notsi was that after her permanent appointment as principal, the needs of the school changed, and a need existed for appointment of a temporary PL 1 History educator and that the school no longer needed a temporary PL 1 educator for the Geography subject as there were enough educators at the school who taught the subject. What this means is that the applicant could not have been absorbed or permanently appointed in instances where the school did not have a need for a Geography teacher. The school appointed, on a temporary basis, Miss Sithole who had to teach and still teaches History, and her (Miss Sithole) temporary appointment is against a promotional PL3 post vacated by Mr Sesing who has since been appointed as deputy principal. The applicant, again, could not reasonably expect to be permanently appointed or absorbed in instances where the school did not have a need for the temporary PL 1 educator post she occupied. While the applicant maintained, and contended that the school still needed her, needs of the school would not have been, and never are determined by what educators wished for, but by the actual needs of the school as determined by school management.

[22] The applicant further contended that she considered herself to be permanently employed from 01 July 2021. But by her own version, she went to the respondent’s Provincial office in Bloemfontein in November 2021 to enquire about the status of her employment. The Provincial office, in a letter dated 11 November 2021 and contained on page 11 of the applicant’s bundle, confirmed that she was temporarily employed as educator (PL1) from 06 April 2021 to 11 November 2021. In other words, contrary to her assertion, she was made aware by the respondent that she was still temporarily employed as a PL1 educator in November 2021. It was not her evidence that, on receipt of this confirmation from the Provincial office, she pursued the issue further. She thus could not reasonably expect to have been permanently employed from 01 July 2021 in instances where the respondent made her aware that she was still employed on a temporary basis.

[23] The applicant also relied on her temporary contract having been renewed for more than three months as other ground for asserting her claim of reasonable expectation of permanent employment. But her assertion and argument in this regard does not hold water. The extent of repeated renewals of a temporary contract is just but one of the factors that should be considered in terms of the provisions of Clause 3.5 of the collective agreement. But weighed against other relevant factors, among which are the ones already stated in the preceding paragraphs, the applicant could not be absorbed or permanently employed to the position of temporary PL1 Geography educator. Such permanent appointment would not have been possible where there was no funded, substantive and vacant post of PL 1 Geography educator and where no need for such a post had been identified by the school. Any permanent appointment in the absence of the above-mentioned requirements would have been unlawful and would have amounted to illegality.

[24] As earlier stated, it is the applicant who bore the onus. Having considered evidence and arguments, it is my finding that the applicant dismally failed to discharge the onus. In the circumstances, I deem it reasonable to make the following award:

AWARD

[25] No reasonably expectation of permanent employment was created by the respondent.

[26] The claim by the applicant is accordingly dismissed.

[27] The Council is directed to close the file.

Monde Boyce
Panelist: ELRC