IN THE MATTER BETWEEN:

Busane Nicholas and 1 other Applicant

And

Department of Higher Education and Training Respondent

ARBITRATION AWARD

Date of Award: 17 July 2024

ELRC Arbitrator: T Mtolo

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

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as “the ELRC”) in terms of section 186(1)(b) of the Labour Relations Act (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on 15 and 16 April 2024 at the Respondent’s premises in Durban.

2. The Applicant (S. N. Busane) was present and was represented by Mr. Ndokweni, a Legal Representative, the Respondent (DHET) was present and represented by Mr. Hlela, a Legal Representative.

3. The case of the second applicant, Mxolisi Biyela, was dismissed as he was not present and did not furnish a reason for his absence.

4. The Commissioner convened a virtual meeting with the parties on 20 June 2024 to seek clarity on written submissions made by parties on their submissions regarding the point in limine. The applicant was not present but was represented.

BACKGROUND TO THE ISSUE

5. The Applicant referred a dispute relating to promotion to the bargaining council.

6. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.

7. Arbitration proceedings took place on the dates aforementioned.

8. Both parties handed in Annexures A – E and concluded their pre-arb minutes.

9. The Respondent raised a point in limine after the arbitration. The parties were given several dates to address the point in limine with written submissions.

10. It is common cause that the applicant has no claim to section 198B of the Act.

11. It is common cause that the period of 2017 is not disputed by the applicant.

12. The applicant stated that he had a reasonable expectation for his fixed term contract to be renewed. The applicant was employed as a Lecturer on a yearly contract covering the period from 2014 to 2017. Each year, the contract was expected to be renewed. Conversely, the respondent argued that there was no reasonable expectation for the contract to be renewed.

ISSUE TO BE DECIDED

13. I must determine whether the respondent dismissed the applicant by not renewing the fixed term contract.

SURVEY OF EVIDENCE AND ARGUMENT

Applicants case
14. Witness: Busane Nicholas, presented Bundle F page 20, which included a notice of the expiry of the applicant’s contract in 2015. The same notice was received in 2016 on page 21. The applicant could not recall when he received this notice in 2016, but stated he was recalled to report for work in the year 2016. The applicant believed the latter notice was unfair because they had served the institution from 2014 to 2016. He argued that the nature of their work required ongoing employment and did not justify the termination, as indicated by numerous occasions where the applicant met with S.B. Ndlovu, who assured that the applicant should not worry about losing their job and he further wrote a submission to Head Office for the retainment of their services. The applicant further elaborated on Bundle D page 21, noting the contract period from 1 February 2014 to 31 January 2018.

15. The applicant contended that the contract was contrary to what they were informed by colleagues, who created the expectation of renewal in 2014. These colleagues, however, were not representing the college officially. The applicant pointed out that the contract outlined on page 19 substantiated this claim. The applicant stressed that the conversations leading to their expectation were informal and took place in 2014. These informal discussions continued through 2015 and 2016, involving persons not officially representing the college.

16. The applicant explained that the submission of their contract renewal was based on the belief that their employment would become permanent. The assurance from S.B. Ndlovu and others was that, once employed by the college, one would get absorbed permanently. This led the applicant to believe in their permanent employment status, although the actual call back for permanent employment did not materialize.

17. The applicant detailed their duties as included in the employment contract for the period of 2014 to 2018. They performed various academic and administrative duties, including teaching, conducting examinations, performing admin tasks, and participating in extracurricular activities. Despite meeting all requirements, the applicant was not given reasons for the non-renewal of the contract, nor did the contract state that renewal was dependent on any condition.

18. During cross-examination, the applicant stated that he reported to the Senior Lecturer at B.B Umlazi Campus, working under Mr. Nqabayethu and Mrs Mavimbela, the Campus Manager who took part in the submission to Head Office for the retainment of their services. The applicant did not intend to call Mrs Mavimbela to corroborate their submissions, nor did they recall signing a contract in 2016.

19. In the absence of an employment contract, the applicant provided payroll payslips for 2016 to prove they were performing Lecturer duties at Umlazi B.B Campus. The applicant acknowledged earning a higher salary of 37% and did not comment further. He provided evidence of ongoing work without a formal renewal process. The applicant noted that despite their service, they were not absorbed permanently as expected and did not complete migration forms required for permanent employment.

20. The applicant argued that college practices indicated a likelihood of being retained permanently, with assurances from Mr. Ndlovu and other college officials reinforcing this belief. However, the applicant noted a lack of documented evidence for meetings and statements that contributed to their expectation of permanent employment.

21. The applicant described the college’s enrolment processes and the expectation that their services would continue based on program needs and sufficient student enrolment. The applicant’s role in Bundle B, page 8 program was highlighted, noting that without adequate enrolment, the college’s programs might close. They argued that teaching and related services were intended to be permanent, aligning with the college’s overall practice and policies.

22. The applicant acknowledged that he did not qualify to be permanently employed by DHET but qualified to be permanently employed by the college council. He reiterated that Mr. Ndlovu and Mrs Mavimbela created the expectation that he would be permanently employed by the college but did not have any documentation as he did not inform his representative to subpoena attendance registers when these meetings occurred and the submission that was sent to Head office. He could not recall the months and dates of when these meetings occurred.

23. The applicant admitted to not calling any college officials to testify, as these were informal conversations. The applicant acknowledged a submission from the Central Office but did not comment on the part of the DHET process. The applicant disputed that the college did not have sufficient enrolment to renew his contract. He disputed that the respondent did not have a practice of fixed term contracts which led to permanent employment.

24. During re-examination, the applicant clarified that informal talks did include S.B. Ndlovu. The applicant highlighted a statement they did not dispute, did not mean they did not know.

Respondents’ case

25. Witness Mrs. O.B. Mavimbela, Campus Manager, B.B. Campus – Umlazi testified about her tenure of employment with the respondent and several positions held to date, she testified regarding contracts held with Busane and five other employees. These contracts are renewable annually based on student enrolment figures, with data sourced from the DHET funding. She clarified that minutes are provided to the college, stating the allocation of students to different campuses.

26. Renewal notices are determined each year based on enrolment numbers and communicated in December. Mrs. Mavimbela highlighted that contracts are subject to the needs of the college and enrolment figures, indicating the possibility of renewal or non-renewal. She referenced Bundle F, page 20, concerning the notice of contract expiry issued on 16 December 2016.

27. The college council, under administration, operates without a designated principal. Decisions about renewals are made by the DHET, central office in consultation with the campus managers and heads of departments. The renewal process during this period involved submitting renewal recommendations based on the institution’s needs. The college council and DHET review these recommendations before final approval.

28. Mrs. Mavimbela stated that some contracts were automatically renewed, while others were not, based on the needs and enrolment figures. She affirmed the need for campus managers to provide proof of shortage or surplus of staff to justify renewals or non-renewals. She stated that Mr. S.B Ndlovu’s signature is affixed on the contract in 2015. She noted that Campus Managers have no power to recruit but can recommend when they have employees that are on contract and are under pressure due to timeframes and in a desperate attempt to not leave learners without a lecturer they would recommend from the pool of their former contracted Lecturers. She stated the campus has strategic visits and informal or random visits. She did not recall a meeting with S.B Ndlovu where he informed staff members their contracts would be renewed.

29. She noted a submission to Head office but could not recall the details. She submitted that a Lecturer whom has been on contract for approximately three years may be made permanent against a vacant Lecturer post on Persal, if any. She stated that the applicant worked from July 2014 to February 2015, March 2015 to December 2016 which totalled 28 months and not 36 months. The applicant did not have a full 36 months. She further stated that she is not well informed on the process of migration as it is guided by the Human Resources policy.

30. She further rebutted the claims that she informed the applicant his contract would be renewed as he was a high performing individual, and that he would be permanently employed. She stated that she issued notice of expiry of contracts and informed employees it is the end of their journey and their renewal would be dependent on timetabling needs and she would not have pre-empted her timetabling needs when issuing notice of expiry of contracts.

31. Cross-Examination: She was questioned about the specifics of Busane’s contract renewals from 2014-2017. She could not confirm the details of individual contract renewals without referring to specific documentation. Mrs. Mavimbela explained that renewal notices were issued based on the availability of funding and student numbers. She denied having any influence over the renewal process, stating it was a centralized decision. She did not recall specifically giving the applicant the notice of expiry in 2014 but stated it was her task. She stated that despite these notices of expiry of contracts, the employees would be called back the following year depending on the timetabling and enrolment needs, and gaps identified by the college timeously. She did not recall the terms of the period of 2016. She is not the Author of these HR documents and did not bring the proof of shortages and funding related to the 2017 period as disputed by the applicant as she was not requested to do so. She stated it communicated to employees that their contracts were also based on the needs of the college and other employees taking leave as per applicants’ contract in 2017. She did not recall being any meeting with S.B Ndlovu and contract employees. She stated that according to her knowledge some contracts were renewable and some were not renewable.

32. Under re-examination: She stated that the applicant produced no documentation related to the availability of funding in 2017, enrolment and availability of the services of a Lecturer in 2017. The period of 2016 is not documented. She stated that Mr. Naidoo and the applicant signed bundle D, pages 7 and 15. She further submitted that when a gap is identified by different stakeholders in the college, she makes a submission for a Lecturer position to central office, and if central office approves it will be dependent on the description being a fit to that of a contracted Lecturer and they receive priority but this is not a permanent post. It was done for a fixed term contract.

33. Witness: Mrs. Msimang, employed by DHET as Coastal College Acting Principal. She started working in 1999 as Staff Development Officer, later HRD and Campus Manager. She held acting roles in corporate services and was permanently appointed as Deputy Principal (Corporate Services) in 2011-2017.

34. The appointment of Lecturers is need-based and approved by the DHET. Mrs Msimang oversees eight campuses and liaises with deputy principals and campus managers to meet staffing needs. She elaborated on the structure of management in the college, and the SMT whom has power to make certain decisions. She explained that contract renewals depend on enrolment figures and DHET funding .She oversees submissions or gaps regarding the needs identified by the SMT. Mrs Msimang emphasized the importance of following procedural guidelines in the renewal process. She did not know of any meeting that included Mr. Ndlovu and contract workers in her campus. She stated that she ought to have known if such meetings occurred. She alluded to a process from the DHET regarding migration. Employees will not be migrated without filling in the necessary forms and meeting the requirements. She stated that she is a member of the college council and rebutted claims that there was any meeting with contract workers regarding them being made permanent employees.

35. Under cross-examination: Msimang clarified she had limited interaction with Mr. Ndlovu regarding contract renewals. She averred that she was never present in any meetings where S.B Ndlovu promised contract workers renewals for the period of 2017. She stated that any communications about contract renewals would have been formalized through the DHET through the issuance of circulars and communicated to the SMT. She conceded that for informal visits it would not be documented as such, but stated that informal visits included showing face and walking around the campus and it does not include meetings as per the applicants’ allegations. Meetings are categorised as formal and will be documented. She further stated that she has no documentation before her regarding the period of 2017 as she was not requested to furnish the arbitration with those documents.

36. She stated that she was seeing the applicant for the first time and has never told him that his contract would be renewed. She confirmed that renewal procedures are standardized and involve multiple layers of approval. Mrs. Msimang reiterated that she did not have direct involvement in individual contract renewals for 2017. She noted that funding for enrolments is reviewed annually, and decisions are based on the institution’s needs. Mrs. Msimang asserted that she followed DHET guidelines and had no discretion in renewing contracts outside established procedures.

37. Re-examination: Mrs. Msimang clarified that the employment contract has no clause stating that the contract is renewable. She indicated that she was not given any documentation regarding the renewal of Busane’s Lecturer contract for 2017 based on enrolment or funding.

CLOSING ARGUMENTS

38. The parties closing arguments were considered.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

39. Labour Relations Act (LRA) 66 of 1995: Section 186(1)(b) of the LRA states dismissal means that an employee reasonably expected the employer to renew a fixed-term contract on the same or similar terms, but the employer offered to renew it on less favorable terms or did not renew it.

40. I have examined the evidence submitted by both parties and have duly perused submitted annexures. I am required to determine whether the First Respondent dismissed the applicant in not renewing his contract beyond July 2017.

41. The applicant’s claim is grounded on the belief that his contract would be renewed based on past renewals and verbal assurances from college officials. The applicant’s contract was renewed annually from 2014 to 2017 with a break in service in these periods. The applicant allegedly received verbal assurances from S.B. Ndlovu, Mrs Mavimbela and other officials that suggested employment would become permanent. These assurances were given in informal settings and were reiterated over multiple years. The applicant fulfilled all contractual duties, including teaching, conducting examinations, and administrative tasks. No negative performance reviews were presented to justify non-renewal.

42. The respondent’s counter argument is that contract renewals were based on annual student enrolment numbers and DHET funding, factors beyond the college’s control, depending on these factors. The respondent argued that there was no reasonable expectation for renewal based on contractual terms and external factors: The applicant’s contract renewal was subject to the needs of the college and student enrolment figures. These terms were clearly communicated to the applicant and further called two witnesses to corroborate their arguments.

43. Mr. Busane, the applicant claimed that the notices of contract expiry in 2015 and 2016 were unfair, arguing that the nature of their work required ongoing employment. He cited assurances from S.B. Ndlovu that they should not worry about losing their job and that there were submissions to Head Office for their retainment. The applicant further mentioned informal discussions with colleagues, leading to an expectation of permanent employment, although these colleagues did not officially represent the college. Despite providing payroll payslips and detailing their duties from 2014 to 2017, the applicant did not present formal documentation to support the claim of guaranteed permanent employment or renewal of fixed term contacts.

44. During cross-examination, the applicant admitted not calling Mrs. Mavimbela or any college officials to corroborate his claims, nor recalling signing a contract in 2016. He also acknowledged that despite assurances from Mr. Ndlovu and others, he had no documented evidence of these meetings or the statements that contributed to their expectation of permanent employment. The applicant’s arguments were largely based on informal assurances and personal belief rather than documented facts. In SA Rugby (Pty) Ltd v CCMA and Others (2006) 27 ILJ 1041 (LC), the court found that verbal assurances from individuals in positions of authority can contribute to a reasonable expectation of renewal, provided they are specific and credible. However, the applicant must demonstrate that these assurances were made by someone with the authority to make such promises. Mrs Mavimbela vehemently denied these claims citing college needs, enrolment numbers and funding at the forefront of every renewal of contracted Lecturers; which contradicted the applicant’s claim that Mrs Mavimbela assured him and others of contract renewals and or permanent positions. Mrs Mavimbela further elaborated on the process of permanency which included migration of which the applicant confirmed he never filled any migration forms.

45. The lack of testimony from Mr. S. B. Ndlovu to corroborate the applicant’s claims of assurances about contract renewal or permanent employment significantly affects the credibility and weight of the applicant’s argument. In labour disputes, especially those involving claims of unfair dismissals based on reasonable expectations of contract renewal, the availability of corroborative testimony and documentation is crucial. The applicant’s failure to call S. B. Ndlovu to testify means that the alleged assurances about renewal or permanent employment remain unverified and untested. This omission weakens the applicant’s case as the respondent cannot cross-examine Ndlovu to challenge the applicant’s assertions. The absence of written documentation or formal records of the meetings where these assurances were allegedly made further undermines the applicant’s position. In Dierks v University of South Africa (1999) 20 ILJ 1227 (LC), the court held that an employee’s expectation of renewal must be based on a reasonable and legitimate basis. The absence of evidence from key witnesses and documentation significantly weakens the employee’s claim. In the absence of testimony from relevant witnesses and documentary proof, the employee’s claim was dismissed.

46. Mrs. O.B. Mavimbela, the Campus Manager, testified that contract renewals were based on student enrolment figures and DHET funding, with renewals communicated each December. She clarified that renewal decisions were made by the DHET central office in consultation with campus managers and heads of departments, not solely by campus managers. Mavimbela denied informing the applicant of any guaranteed renewal and noted that some contracts were renewed while others were not, based on institutional needs. She also stated that she did not recall specific meetings with Mr. Ndlovu promising contract renewals to staff. She was also tasked with issuing notice of expiry of contracts to the applicant and stated she would not have pre-empted the timetabling needs while issuing the notice of expiry of contracts. This testimony is plausible. The submissions were corroborated by Mrs Msimang regarding contract renewals, the assurances were still denied by both witnesses. Furthermore, non-renewal notices were issued timeously and not challenged. In Van Niekerk v Medicross Health Care Group (Pty) Ltd (1999) 20 ILJ 1812 (LC), the court found that timely and clear communication of contract terms, including notices of non-renewal, is crucial in managing employee expectations. If an employee receives such notice and does not challenge it promptly, it weakens their claim of a reasonable expectation of renewal.

47. Mrs. Msimang, the Coastal College Acting Principal, emphasized that contract renewals depended on DHET funding and enrolment figures, following procedural guidelines. She denied any involvement in promising contract renewals to the applicant and stated that all such communications would be formalized through the DHET. Msimang reiterated that she followed DHET guidelines and had no discretion in renewing contracts outside established procedures. Mrs Msimangs’ testimony is accepted as she is in a position of authority and explained what prompted the contract renewals. She further illustrated how meetings would be categorised in her campus; with S.B Ndlovu further poking holes in the applicant’s arguments regarding informal meetings. In Mahlamu v CCMA and Others (2011) 32 ILJ 1059 (LAC), the court emphasized that the employer’s reliance on external factors, such as funding and enrolment, in deciding contract renewals is legitimate and does not necessarily constitute unfair dismissal. The employer must, however, ensure that these criteria are applied consistently and transparently.

48. Based on the detailed analysis of the evidence and arguments presented, as well as relevant case law, the following conclusions can be drawn regarding the applicant’s reasonable expectation of contract renewal: The applicant’s contracts renewals were contingent on student enrolment and funding from the Department of Higher Education and Training (DHET). Renewals were issued or communicated based on the college’s needs and available funding, with the applicant receiving a notice of non-renewal before December 2016. The reliance on external factors such as student enrolment and funding, and the absence of documented evidence for the assurances given, weaken the applicant’s claim of a reasonable expectation of renewal. In the University of Pretoria v CCMA (2012) and Mahlamu v CCMA (2011) underscore the importance of clear contractual terms and the legitimacy of using external factors like enrolment and funding to decide on renewals, thus supporting the respondent’s position. In University of Pretoria v CCMA & Others (2012) 33 ILJ 183 (LAC), this case established that the onus is on the employee to prove that a reasonable expectation of renewal existed. The court noted that informal assurances without formal documentation or consistent practice do not suffice to create a reasonable expectation of renewal.

49. I reject the applicant’s submissions due to a lack of formal documentation and reliance on informal assurances. The applicant failed to provide substantial evidence of guaranteed permanent employment or that the non-renewal of his contract was unfair. The payroll payslips and detailed duties do not suffice to prove an expectation of permanent employment, especially without corroboration from college officials or documented evidence of the claims. The case law supports that subjective belief and informal assurances are insufficient to establish a reasonable expectation of renewal. In SA Rugby Players Association (SARPA) & Others v SA Rugby (Pty) Ltd & Others; SA Rugby (Pty) Ltd v SARPU & Another (2008) 29 ILJ 2218 (LAC), The Labour Appeal Court held that an employer’s conduct, such as the regular renewal of fixed-term contracts, can contribute to a reasonable expectation of renewal. However, this expectation must be substantiated by consistent and formal communication from the employer.

50. I accept the respondent’s submissions as they provided a clear and procedural explanation for the non-renewal of the applicant’s contract. The testimonies of Mrs. Mavimbela and Mrs. Msimang were consistent and supported by institutional guidelines and procedures. Their accounts detailed the reliance on DHET funding and enrolment figures for contract renewals, with no documented evidence supporting the applicant’s claim of guaranteed permanent employment or renewal. The case law supports the respondent’s position that renewal decisions must be based on objective factors and formal processes.

51. I find that the applicant failed to prove that the respondent dismissed him by not renewing his fixed-term contract. Furthermore, the decision not to renew his fixed term contract was made based on institutional needs, DHET funding, and enrolment figures, following established procedures without any unfair conduct.

AWARD

1. The applicant Nicholas Busane has failed to prove that the respondent, Department of Higher Education dismissed him by not renewing his fixed term contract.

2. The matter is dismissed.

ELRC Commissioner: Thandeka Mtolo

17 July 2024