In the matter between

NADIA FISHER Applicant

and

WESTERN CAPE DEPARTMENT OF EDUCATION Respondent

¬¬
ARBITRATION AWARD

ARBITRATOR: A. Singh Bhoopchand

HEARD: 8 March 2021; 19 March 2021

CLOSING ARGUMENTS: 30 March 2021

DATE OF AWARD: 20 April 2021

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration concerning an alleged unfair dismissal was heard on 8 and 19 March 2021 on the Zoom Video Conferencing Platform. The applicant was represented by Mr Xolile Zigebe, a representative of the trade union NAPTOSA. The respondent was represented by Ms.
Randall, a professional officer within the Labour Relations Directorate of the Respondent
2. One bundle of documents was handed in as evidence.

3. The parties submitted closing arguments in writing, the last of which was received on 30 March 2021.

BACKGROUND
4. The applicant was employed on a six- month fixed term contract at the Dagbreek Primary School in Heideveld with effect from January 2020. She became pregnant soon after her employment and informed the principal thereof on 5 May 2020. Her second contract was for the period July 2020 to September 2020.

5. It is the applicant’s case that she had a reasonable expectation that her contract would be renewed until December 2020 and that the shorter period of her second contract was determined by her pregnancy. The premature termination of her contract also deprived her of the opportunity to claim for maternity benefits which she would have been entitled to, had her contract not been terminated. Respondent’s version is that the contract was to have terminated in June and that it was extended only because schools had been closed, due to the National Lockdown, for most of the period between March and June 2020

SURVEY OF EVIDENCE
Applicant’s Case
6. Nadia Fisher, the applicant, testified that she was interviewed for a post at the school on 14 January 2020. She was immediately accepted for the post as she was known at the school having assisted the school previously with a concert. During the interview it was explained that the contract posts are for six- month periods, but that the contract would be extended for a further six months until the end of December.

7. She took up her post at the school on 15 January 2020. This was her first post after qualifying as an educator. She became pregnant during the second term and she informed the principal of her pregnancy on 5 May 2020. He responded by saying:” You are stupid. Don’t they teach you at university to keep your legs closed in your first five years.” She was devastated by his response. He then told her that it was up to the department as to what would happen with regard to her contract. Her colleagues had warned her that it was a risk to inform the principal about her pregnancy. Two other educators had been told that their contracts would not be renewed because of their pregnancy.
8. At no stage did she tell the principal that she did not intend to return to school after giving birth. She would not have said this as she needed the job in order to support her baby.

9. On 26 May 2020, all educators returned to school after the lockdown. The next day the Head of Department (HOD) spoke to her about her pregnancy. She said that the principal had informed her of the pregnancy and that she wished to speak to her about the way forward. She enquired about the due date of the baby and she made suggestions about leave. After being told that the baby was due on 23 November 2020 she asked about when she would be able to return to school. She informed the HOD that she was willing to return to school in January. The HOD then said that she would present all the information to the principal and that it was up to him to decide on the way forward.

10. On 15 June 2020, all contract educators were called to the office by the school secretary. They were asked to sign their contracts and leave. She only became aware of the period of her contract when the principal spoke to her outside. He told her that her contract was for a three- month period and that she should understand. She asked him what he meant, and he said that it was because of her pregnancy. As her baby was due in November, he said he did not see any reason for her contract to be extended beyond September. All the other contract educators that were not pregnant, were given six -month contracts.
11. As a first -time educator, she was not aware about maternity leave benefits and the principal did not advise or inform her about it.

12. During cross examination she said that she was not told during her interview that the renewal of her contract would be dependant on her evaluation. She was simply told that her contract would be renewed for a further six months. She did not experience any major challenges with her work. The subject adviser and the Head of Department supported her and guided her. Even though her contract was renewed for the period July to September, she only started teaching again in August as that is the time that her Grade 4 class returned to school from lockdown. It was put to her that she had been employed as a substitute for Ms Reed and that Ms Reed had returned to school in October. She said that she had been employed in Ms Mhlungwe’s place and that when she returned to school in August, she was placed in another class.

13. Thulile Thelphen Hlongwane an educator at the Dagbreek Primary School testified that her first contract at the school was from January 2019 to June 2019. Her contract was renewed for a further six months during which time she fell pregnant. Her baby was due in January 2020 During August 2019 she was told that contract employees cannot get maternity leave. Her contract was not renewed for a further six months. She gave birth on 8 January 2020. On 7 July 2020, the principal called her and said that he had heard that she was looking for a job and said that he needed an educator. The next day she signed a contract at the school for a six- month period, from July 2020 to December 2020. None of the contract educators sign contracts for less than six months.

14. Jody Adonis is an educator at Dagbreek Primary School. She signed three successive six-month contracts commencing in January 2019. The last contract ended on 30 June 2020 as she was pregnant at that time. When the secretary found out that she was pregnant, she said that she would not be coming back to school. Her baby was due in August 2020. During June 2020, the principal asked her when she would be able to return to school and she told him that she would be ale to return in October 2020. There was no formal announcement that her contract would not be renewed -it had just become common knowledge that her contact would not be renewed because of her pregnancy. On 1 October 2020, she signed a three-month contract, ending December 2020. No one informed her that she qualified for maternity leave benefits in terms of clause 18,3 of the Personnel Administration Measures (PAM).

Respondent’s Case
15. Leon Jones, the principal of Dagbreek School testified that the applicant arrived at the school in January 2020 to apply for a post that had been advertised on Facebook. He personally interviewed her and explained to her in detail what the criteria for the post was. He told her that he could offer her a six-month contract, but that there would be a full assessment made of her performance. He explained to her further that she should not have any expectation of a renewal of the contract after 30 June 2020. However, as there was effectively no second school term (because of the National Lockdown), there was no adequate opportunity to assess the applicant’s performance. Her contract was therefore extended for the period 1 July 2020 to 30 September 2020. Her contract was not extended for a further period because she did not perform well. She failed to hand in scripts on due date and this resulted in them not being able to send out school reports. She was part of a staff meeting where she was told that she not performing up to standard. She was given assistance and guidance during phase meetings and staff meetings. Applicant’s attendance record was also poor in that during the period January to September, she had been absent from work for 14 days. It was put to him that the applicant had been absent from work for 10 days due to covid related quarantine and that the other 4 days of her absence from work were related to her pregnancy. He could not deny this.

16. He denied that he told the applicant that her contract would not be renewed because of her pregnancy and that he had made any personal comment about her being pregnant. He also denied that he promised the applicant that her contract would be renewed for a further six months. He agreed that he did not say anything to the applicant about maternity benefits as she is expected to apply for her own benefits. He was not aware of the provisions of PAM relating to maternity benefits.

17. Loken Fransman is the Head of Department for the intermediate and senior phase. She supervised the applicant who was a grade 4 educator. Her meetings with the applicant were about work -she did not get involved in matters related to contracts. She agreed that she had asked the applicant when she would return to a school after her maternity leave but denied that she had told her that the grade 4 post would still be available.

18. With regard to the applicant’s work performance, she said that she had spoken to the applicant about being on the phone and on her laptop too often. No work assessment was done for the second term due to the National Lockdown. During the first term, the applicant did not submit everything that she was required to submit. She also did not submit any examination assessments and continuous assessments for the third term. She spoke to the applicant about her performance. Generally new educators do struggle, so the applicant was given extra time to submit her work, but she still failed to do so.

EVALUATION
19. This dispute was referred in terms of section 186(1)(b) of the LRA. This section provides as follows:
Dismissal means that:
(1). An employee reasonably expected the employer 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.

20. The employee bears the onus to establish that she held a reasonable expectation that her fixed term contract would be renewed. I must decide whether on the facts objectively considered, it can be established that the employee had a reasonable expectation. The legislature has chosen to identify situations in which non-renewal of a fixed term contracts constitute dismissals by focussing on the expectation of the employee. The critical issue when determining whether this form of dismissal has occurred is whether the employee’s claim that they expected the contract to be renewed was reasonable in the objective sense- that is whether the circumstances were such that any reasonable employee would in the circumstances have expected the contract to be renewed on the same or similar circumstances.

21. When assessing whether an expectation is reasonable, all the surrounding facts and circumstances should be considered, including the terms of the contract of employment, promises made by the employer regardless of the contractual terms which gainsay what the employer promised and the general conduct of the parties.

22. The applicant bases her claim of reasonable expectation on two main factors, namely, that the principal told her that the contract would be renewed for a further six months and that all the other contract educators had their contracts renewed for a further six months. The issues in this matter have been conflated, probably so because the facts are interrelated. Much of the evidence and argument focussed on the applicant’s pregnancy as a reason for the renewal of the contract for a period of only three months as opposed to six months. These facts are relevant not only as a reason for termination, but they also relate to the issue of reasonable expectation. However, the focus of the enquiry is the reasonable expectation and not the reason for termination. If there is no reasonable expectation there is no dismissal and that would be the end of the enquiry.

23. At face value, it may seem that she did have a reasonable expectation of renewal for six months, given that the principal may have mentioned at the outset that the contract would be extended for a further six months and then went on to renew the contracts of the other educators for a further six months. However, circumstances changed when she became pregnant. The principal made it clear to her that he was not happy about her changed circumstances. The fact that his comments were inappropriate and may possibly have led to a claim of an automatically unfair dismissal is not the subject of this enquiry. The HOD informed the applicant during her discussion with the applicant that the renewal of her contract was dependant on the principal’s consideration of her changed circumstances. When he renewed her contract for a further three months, she did not question it. At the start of her three- month contract she bore no expectation that her contract would be renewed thereafter. Viewed objectively, applicant cannot reasonably claim that she expected her contract to be renewed. The issue of maternity benefits which formed a large part of the applicant’s case is not relevant to this enquiry.

In the premises, I make the following award:

AWARD
1. The applicant, Nadia Fisher, did not have a reasonable expectation that her contract would be renewed.
2. The applicant was no dismissed.

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A. Singh-Bhoopchand
ELRC Arbitrator