IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT eTHEKWINI TVET COLLEGE BOARDROOM
In the matter between
MBATHA WISEMAN NHLAKANIPHO Applicant
And
DEPARTMENT OF HIGHER EDUCATION -DHET Respondent
ARBITRATOR : AS Dorasamy
HEARD : 28 JUNE 2024
DATE OF AWARD : 12 JULY 2024
SUMMARY : Labour Relations Act 66 of 1995 – Section 192(1) – alleged unfair
dismissal
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on the 28 June 2024, the evidence was completed at the e Thekwini Boardroom in Durban. This matter was under the auspices of the Education Labour Relations Council (ELRC). Mr Lindokuhle Vincent Ndimande an attorney, represented the applicant, Mr Fortune Ngcobo represented the Department of Higher Education and Training (DHET). The parties were to submit written closing arguments by the 5 July 2024. The party’s submissions and the applicable provisions of the applicable circulars were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the respondent unfairly dismissed the applicant and dependent
thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3. The applicant was appointed on a fixed term contract that was not renewed.
4. The application/ matter should be dismissed.
RESPONDENT’S OPENING STATEMENT
5. The applicant was on a fixed terms contract and the programme was phased out. The relief sought by the applicant is not possible.
APPLICANT’ OPENING STATEMENT
6. This is a case of unfair dismissal and the applicant is seeking to be employed permanently. The applicant seeks retrospective re-instatement from January 2024
on a permanent basis with back pay.
RESPONDENT’S CASE
SUMMARY OF EVIDENCE AND ARGUMENT ON BEHALF OF THE RESPONDENT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
PATRICIA NTOMBI NTSHANGASE
Mrs Ntshangase testified to the following effect:
7. She is aware of the matter.
8. The applicant does not qualify or meet the requirements for the post. He was at the college for more than a year. The years on their own does not qualify the person and sometimes a lecturer will stay in the college but there was a substitute and he stood in for somebody else. If a staff member is ill but the post is not vacant.
9. The second issue is the work load. He should be given a work load. During his stay at Richmond he was teaching certain subjects that were discontinued. His contract came to an end and the project was discontinued.
10. His contract came to an end because of funding. It was phased out. It was a few years’ ministerial projects that are being discontinued because of funding issues. When the applicant’s contract came to an end it had a beginning and an ending. When the end date came over and above that his subjects were discontinued.
11. He was teaching process plant operating level 2. That has been discontinued in Richmond. There was no workload to give him. He can apply and be appointed again.
Under cross-examination she stated that:
12. The Richmond project is being phased out in its entirety. The first group of permanent lecturers of
the project is being phased out. There lecturers affected that were permanent and they
were sent to other institutions.
13. The second category were lecturers who took the posts at other institutions and an advert was sent and they could apply and compete.
14. There are others who were better than the applicant and his job was still there. Mr Makubo continued from where he left off and not the applicant. Mr Makubo and the applicant were interviewed.
EVIDENCE ON BEHALF OF THE APPLICANT
APPLICANT’S CASE
WISEMAN NHLAKAIPHO MBATHA
The salient aspects of his evidence are recorded below.
15. He complains of unfair dismissal. He was appointed at the college on 29 September 2019, at Northdale campus. He is qualified to teach N1 to N6. When he was appointed, he taught Maths and Electrical Theory. He started on a 3-month contract.
16. He moved from Northdale campus to Richmond campus and specialised in ICT and life skills. He was in Richmond for 22 months.
17. He is a qualified teacher and had good results. There was no workload and the course was being phased out. In 2022 they ended with one class because the intake was not screened and there was a high rate of intake. In 2023 they enrolled 90 students with 2 failures.
18. Prior to his dismissal other than his dismissal letter there was no communication but his last date of employment was 31 December 2023.
19. He received a call from the HR manager about a move to Plessislaer. There was a vacant permanent post in Greytown, it was a permanent, vacant and funded post in life- skills and ICT. He did not apply for the post because it was on a process of absorption.
20. After his dismissal he approached HR about his post. He was told that there were changes about his post being advertised. It was a post for Greytown and ICT and life-skills at Masinga and Northdale. He was not called for any interviews or was not short listed. He was not told about his applications. After his dismissal there was no communication from the college.\
21. He seeks retrospective re-instatement with back pay and a permanent post.
Under cross examination he stated as follows:
22. He was on a fixed term contract. In 2023 there was a continuation of his contract. His contract did not have a clause about permanent post. The college did not offer him a permanent position in Richmond.
CLOSING ARGUMENTS
23.. The parties submitted written closing arguments were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
24. This matter relates to the alleged dismissal of the applicant.
25. The applicant challenges the procedural and substantive aspects of his dismissal and believes
that he was unfairly dismissed and prays for retrospective re-instatement with back pay.
26. The respondent contends that there was no dismissal but that the applicant’s fixed term contract
came to an end. And prays that the matter to be dismissed.
27. I have taken cognizance of the decision in Sweeney/ Transcash [2000] 6 BALR 712 (CCMA) where
the commissioner held that arbitration hearings constitute a rehearing de novo on the merits. The
award must accordingly be based on evidence led at the arbitration, not on the record of the
disciplinary hearing if necessary.
Further an arbitration is a new hearing which means that the evidence concerning the reason for
the dismissal is heard afresh before the arbitrator. The arbitrator must determine whether the
dismissal is fair in the light of the evidence admitted at the arbitration.
28. The arbitrator is not merely reviewing the evidence considered by the employer when it decided to
dismiss but to determine whether the employer acted fairly. This does not prevent the arbitrator
from referring to any enquiry record in so far as it is admitted as evidence in the arbitration.
29. In this matter it is clear from the submissions submitted by the parties that the following may be
reasonably gleaned.
The applicant was on a fixed term contract and the end of contract date was communicated to the
applicant.
The project for which the applicant was employed was phased out.
THE RELEVANT LEGAL PRINCIPLES
APPLICATION OF THE LAW TO THE FACTS
30. The applicant was employed on a fixed term contract that had ended. The ending of the employment was as a result of the effusion of time.
31. The applicant is dismissed and not entitled to any relief.
AWARD
32 The application is dismissed
DATED AT DURBAN ON THIS 12 DAY OF JULY 2024.
A S DORASAMY (ARBITRATOR)