IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

In the arbitration between

SADTU obo MALAHLE Applicant

And

WESTERN CAPE EDUCATION DEPARTMENT Respondent

Date of Award: 17 July 2024

Arbitrator: A.Singh-Bhoopchand

ARBITRATION AWARD

Details of Hearing and Representation

1. The arbitration hearing was held virtually over two days. The matter was finalised when the parties submitted their closing arguments in writing, the last of which was received on 5 July 2024. The employee, Ms Malahle (Applicant) was represented by Ms Mzizi, a representative of the trade union SADTU. The employer, the Western Cape Education Department (Respondent) was represented by Ms Qonongo, an Employee Relations Officer within the Respondent’s Labour Relations Directorate.

2. One bundle of documents was submitted as supporting evidence.

3. Proceedings were digitally recorded.

Issue in Dispute

4. I must determine whether the Applicant had a reasonable expectation of renewal of her fixed term contract and if so, whether the non-renewal of the contract constituted an unfair dismissal.

Background

5. The Applicant was employed as a substitute educator at the Nelson Mandela High School for the period October 2022 -September 2023. During this period, she served as a substitute educator for different educators and each time her stint for a particular educator ended, her contract was renewed to serve as a substitute for a different educator. When her contract ended in September 2023, she volunteered her services for the month of October 2023. She was employed again as a substitute educator for the period 11 November 2023 -31 December 2023 where she served as a substitute educator for Mr Nzimakwe. Her contract was not renewed thereafter.

6. The Applicant claims that she hoped/expected her contract to be renewed if Mr Nzimakwe did not return to school. In January 2024 she learnt that Mr Nzimakwe’s services had been terminated. However, another educator had been appointed in his place.

7. Respondent’s case is that no expectation was created that the Applicant’s contract would be renewed and that the contract ended by effluxion of time.

Summary of Evidence
Applicant’s Evidence

8. Lelethu Malahle: She testified that she was employed as a substitute teacher in the place of Mr Nzimakwe. All contract teachers were called to the Deputy Principal’s office during or about September. The Deputy – Principal told them that one contract post will be lost. For a period thereafter she substituted for both Ms Hoffman and Mr Nzimakwe. She was aware that her contract would end in December 2023, but she was hoping that her contract would be renewed if Mr Nzimakwe did not return to school. She later said that the Deputy Principal specifically told her that her contract would be renewed if Mr Nzimakwe did not return to school. She was also given a draft time- table for 2024 by the Head of Department. She reported for duty in January 2024 as she hoped that Mr Nzimakwe would not return to school. This is when she learnt that Mr Nzimkawe’s services had been terminated and that he would not be returning to school. However, another educator had been appointed as a substitute in his place. The principal told her that there was a position available at Strand High School and that she should apply for that post.

9. During cross examination she said that she is not saying that she was promised the post but that she hoped that she would be appointed again. She feels that she deserves the post. The educator that was appointed Iin the post had left the school and was working at Strand High School. She was asked to come back in January 2024 to serve as a substitute for Mr Nzimakwe. This is unfair as they are both suitably qualified. She has been a dedicated educator and has served the school well.

Respondent’s Evidence

10. Ms Lungapi, the Principal of Nelson Mandela High School testified that when she was appointed as principal of the school in October 2023, the Applicant was already working at the school as a volunteer. As from November 2023, the Applicant was appointed as a substitute teacher as the educator incumbent to the post, Mr Nzimakwe was on precautionary suspension. She was uncertain as to when that disciplinary process would be concluded. As such the Applicant was contracted to work only until 31 December 2023.

11. As it turned out, the disciplinary process of Mr Nzimwake was finalised during the December school holidays of 2023, and she was informed early in January 2024 that Mr Nzimwakwe had been dismissed. Based on the needs, in particular the need to improve maths outcomes of the school, another educator was appointed in Mr Nzimakwe’s post. The school did not communicate the outcome of the disciplinary process nor its decision to appoint another educator in the position to the Applicant. The Applicant could not have had an expectation of her contract being renewed as no promise was made to her.

12. She refuted the Applicant’s claim that she received a draft timetable in December 2023 as the timetables were only handed out to the educators during January 2024.

13. She also said that when the Applicant visited her office on 17 January 2024, she informed the Applicant that the school had taken the decision to appoint Ms Dikaba in the post when it became vacant as her appointment met the needs of the school. At the time when the Applicant worked at the school, there was no vacant substantive post for the Applicant to fill. She was in a substitute post, which by its nature has an expiry date. Therefore, no expectation could have been created that the Applicant would be returning to the school in the year 2024.

14. Ms Pretorius: She is the Deputy Principal of Nelson Mandela High School. She testified that during September 2023, the school became aware that it was going to lose one of its posts as a principal had been appointed from 1 October 2023. She therefore called a meeting with all the educators employed on contract including substitute educators and informed them that they would be losing one post and therefore none of their positions is guaranteed. She added that she specifically told them that she could not promise that their contracts would be renewed for the year 2024.

15. When the Applicants contract ended in September 2023, her contract could not be renewed as there were no positions available at the time. The Applicant chose to offer to volunteer her services for the month of October. Thereafter when Ms Hoffman left the school, the Applicant was appointed as a substitute educator for the period November 2023 until December 2023 in Mr Nzimakwe’s post. No promise was made to the Applicant that her contract would be renewed as the future of Mr Nzimakwe’s post was uncertain.

Analysis
The Applicable legal Provisions
16. In terms of section 186(1)(b)(i) of the LRA a dismissal means:
(b). an employee employed on a fixed term contract of employment reasonably expected the employer-
(i). 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 and conditions as the fixed term contract, but the employer offered to renew it on less favourable terms or did not offer to retain the employee.

17. In an unfair dismissal dispute where the dismissal of an employee is in dispute, it is the applicant that bears the onus to prove that he was dismissed. It is only after the employee has succeeded in establishing the existence of a dismissal that an employer would be required to prove the fairness thereof.

18. Ordinarily a fixed term contract lapses by effluxion of time on the agreed date. Section 186(1)(b) creates a unique type of dismissal in that it is only when the employee successfully proves that the respondent has failed to fulfil a reasonable expectation of renewal of the contract or of retaining the employee that the employee is regarded as having been dismissed within the extended meaning of a dismissal contemplated in section 186(1)(b) of the LRA. A subjective belief by the applicant that his/her contract would be renewed does not count as a reasonable expectation of renewal. The applicant must prove objectively that the respondent engendered in him/her a reasonable expectation that his fixed term contract would be renewed on the same or similar terms.

19. In Dierks v University of South Africa (1999) 20 ILJ 1227, at 1246, the court held that the following factors would have to be taken into account in considering whether a reasonable expectation existed or not, they include: “…. The evaluation of the surrounding circumstances, the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer, or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose or reason for concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice, and the nature of the employer’s business.”

20. In Minister of Land Affairs v GPSSBC & Others at para 9 the court had this to say:

“The test for establishing a reasonable expectation is an objective one. The court will consider whether a reasonable employee in the circumstances prevailing at the time would have expected the employer to renew his or her fixed term contract on same or similar terms.”
21. The aforementioned test is consistent with the judgment of the Constitutional Court in Walele v City of Cape Town & Others where it was held that the inquiry for determining the existence of a legitimate expectation is primarily factual, and the focus is on the objective facts giving rise to the expectation and is based on provable facts that tend to show that it was the respondent or its decision makers that stimulated a reasonable expectation on the applicant that his fixed term contract would be renewed on same or similar terms .

22. In summary, the test remains that set out by the LAC in SA Rugby Players Association v SA Rugby (Pty) Ltd

“The enquiry is whether a reasonable employee , in the circumstances prevailing at the time , would have expected the employer to renew his or her fixed term contract on the same or similar terms.”

Applying the Law to the Facts
23. The Applicant stated several times during her testimony that she hoped that her contract would be renewed pending the outcome of the disciplinary process of the educator that she was substituting for. Although she stated at some point in her testimony that the Deputy Principal specifically promised that her contract would be renewed, she later clarified that no such promise was expressly made and that she merely hoped that her contract would be renewed. The version of any express promise was in any event never put to any of the Respondent’s witnesses.

24. Absent any express promise , the question then is whether the Applicant’s hope equates to a reasonable expectation in the circumstances. On a simple examination of the facts and given that she was substituting for Mr Nzimakwe, it is perhaps understandable that she hoped to be in the post as long as it was available. However, it is evident that the circumstances at the school were not as simple as she understood it to be and it is for this very reason that the Deputy Principal made it clear to all contract educators , including the Applicant ,that the future of their contracts were not guaranteed. There was much uncertainty at the school with regards to the availability of posts – as it turned out one post was lost; Ms Hoffman retired and Mr Nzmakwe was dismissed. Both Nzimakwe and Ms Hoffman were math educators with one teaching math literacy and the other math. It is not disputed that both the Applicant and the educator that was appointed were both suitably qualified for the post. According to the Respondent , the other educator was chosen because she best met the needs of the school in terms of the overall performance of math candidates. The decision appears rational . Of note also is the fact that there was no vacant substantive post available.

25. When viewed objectively and when considering the circumstances at the school in terms of its needs, and absent any promise to anyone, including the Applicant , it was not reasonable for the Applicant to expect her contract to be renewed. Put differently, the Applicant’s subjective expectation of renewal was not sufficiently supported by objective evidence . A reasonable person in the Applicant’s position should not have expected her contract to be renewed.

26. The Applicant has failed to discharge the onus to prove that she was dismissed within the definition outlined in section 186(1(b)(i). Her fixed term contract ended by effluxion of time.

In the premises , I make the following award:

AWARD
1. The Applicant was not dismissed.
2. The Applicant’s claim of an unfair dismissal is dismissed

A.Singh-Bhoopchand
Senior ELRC Panelist