20 February 2025 – ELRC561-24/25WC

Arbitrator: Retief Olivier
Case number: ELRC561-24/25 WC
Date of Award: 19 February 2025

In the matter between

Delmain Davids Applicant
and
Western Cape Education Department Respondent

Applicant’s representative: Mr John De Laan – SADTU

Respondent’s representative: Ms Ovaya Tyhaliti (Western Cape Education Department)

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing took place virtually 15 November 2024, 28 January 2025 and 29 January 2025. The applicant Mr Delmain Davids was represented by Mr J De Laan from SADTU. Ms Ovayo Tyhaliti represented the respondent, the Western Cape Education Department (WCED). It was agreed parties would submit written closing arguments by not later than 7 February 2025, both parties submitted their written arguments accordingly.

ISSUE TO BE DECIDED

The applicant referred the matter as an unfair dismissal dispute, due to the non-renewal of a fixed term contract, starting that he had a reasonable expectation of renewal of his fixed term contract, based on frequent renewals of his contract. It was submitted that the last contract that he was appointed in, was from 1 July to 30 September 2024, and that he had an expectation of renewal of that contract for a further quarter until the 31st of December 2024.
The respondent denied that any dismissal had occurred and stated that the applicants’ contract had expired and that there could not have been an expectation of renewal, as no expectation was created in any way. The applicant was aware that he had signed a fixed contract with a specific start and end date. The applicant was not dismissed. I have to decide whether a dismissal occurred and if so if the dismissal was fair.

BACKGROUND:

The applicant Mr Davids was initially employed with the WCED as a substitute post level 1 Educator at Zoar RP Botha Primary School, for the period July 2023 until June 2024. The substitute post became available because the incumbent in that post acted as the HOD until 30 June 2024. The post then became a substantive vacant post as of 1 July 2024.
The WCED made a decision to renew all employees’ contracts that were coming to an end on 30 June 2024, despite the nature of the posts, in order to conclude the Department’s processes of disposing of contract posts due to cost containment in the province. The applicant’s fixed term contract in the substitute post had come to an end on 30 June 2024, and he was automatically placed on a fixed term contract as of 1 July 2024 until 30 September 2024, as per the automatic renewal by the WCED.
The applicant submitted that he had an expectation that contract would be renewed until the end of December 2024, because the post was not filled and remained vacant, even after his contract ended on the 30th of September 2024.

SURVEY OF EVIDENCE AND ARGUMENT

Applicant’s submissions:

Key aspects of the applicant, Mr Davids’ evidence was that he was appointed by the WCED in fixed term contract posts as from 1 July 2023 to 30 June 2024. All these contracts during this period of 12 months had start and end dates, but after the end date of 30 June 2024, he was given a new contract, as from 1 July 2024 to 30 September 2024. He submitted the post that he then continued in became available due to the Departmental Head (HOD) post been filled by the incumbent in whose post level 1 post he substituted in, and that post had subsequently not been filled permanently.
He further submitted that the principal had not properly explained the nature of these posts, although he acknowledged that from 1 July 2023 to 30 June 2024 he taught in a substitute post, as the person who post it was, was acting in the HOD post. He submitted that an expectation of renewal was created because after every term he was reappointed on contract for a further term.
During cross examination he confirmed he was appointed on fixed term contracts and signed the contracts. He stated that the principal had told him he we will be contracted in the vacant post, and to this day that post remains open. He acknowledged that it was a contract post from 1 July to 30 September, but stated the principal told him that he had a chance to get appointed in that post. He acknowledged further however that the principal told him he needs to apply for the position. He agreed that the principal never promised to renew his contract. He admitted on his own accord that there was a meeting where he was informed by the principal that his contract was renewed only for a specific period and he was called to the meeting on his return on July 2024, and that the principal informed him that his contract will be coming to an end on 30 September 2024. He stated that though he was aware that his last contract had an end date, an expectation of renewal was created because his previous contracts were renewed, and at this time this position had not been filled. He acknowledged that it could not be converted because it was a vacant post and an advertisement requesting applications was issued, but since then there has been no appointment.
In closing it was submitted when the HOD was filled, the post level 1 Post, in which Mr Davids was substituting became an open vacant post, but he was not re contracted, although there was no qualified teacher to fill the post for the period from when it was advertised in the WCED e recruitment system. The post was still open for contract payment by the WCED and applicant, who had the experience and qualifications, could fill this vacant post, but was not invited to fill the post on contract, as was done during the previous periods. It was also argued the WCED had educators on contract in vacant posts which were converted to permanency after three months, but this did not happen to Mr. Davids.
In closing it was submitted the post was still open for contract payment by the WCED and the applicant, who had the experience and qualifications, to fill this vacant post, was not invited to fill the post on contract, as was done during the previous periods. While the filling of the WCED Post process was still ongoing the school was supposed to fill the post on a contract basis, as is the normal procedure for the WCED. The school had this contract post available from September 2024 up until this point in time, to be filled on a contract basis, with the applicant still available and able, but they did not contact him, like they did during the previous terms. This is the same post, with the same subjects and grades that he was occupying for the period in which the Departmental Head post was vacant. Further the WCED had educators on contract in vacant post converted to permanency after three months but this did not happen in his case.

Respondents submissions:

Mr Saayman, the Principal of Zoar RP Botha Primary School, testified on behalf of the WCED, that the applicant’s contract was automatically renewed only for a specific period of 1 July 2024 until 30 September 2024. He explained to the applicant that he was in a fixed term contract for the above-mentioned period. This was to make sure that there are no expectations created and that the terms of the contract were understood. He is of the view that applicant understood and signed acknowledgement in the agreement presented to him by the SGB and the Principal.
During cross examination he refuted the claim that an expectation was created by the Respondent at any stage during his employment at the school. He stated that the applicant was made aware verbally and in writing that his contract was a fixed term contract, and he signed a letter confirming such. The renewal of the post was an automatic renewal by the WCED of not only the applicant’s post, but of all employees who were employed on contract at that time, and it was for the limited period of 1 July to 30 September 2024. The renewal of the post by the WECD was not because the post level one post remained vacant after the incumbent who had been acting, was appointed into the HOD post, but because of a general renewal of all contract posts for the period by the WCED. The post he occupied as from1 July 2024, was a substantive vacant post. He cannot claim that he expected his contract be renewed as it was never renewed before and there was no promise of a renewal. He confirmed that it remains a vacant post and the WCED has not made an appointment, because a dispute was declared about the post by the applicant.
Mr Mias Du Plessis, the circuit manager, testified and explained that the automatic renewal was for all educators whose contract ended on 30 June 2024, not for any specific individual. It was a cost containment measure to allow the WCED to make a determination on future contracts. Furthermore, the automatic extensions were intended for a particular period with no prospects to further extension. Therefore, there can be no reasonable expectation for a further extension for October 2024 until December 2024. The applicant was also informed as such accordingly.
He reiterated during cross-examination that the applicant was aware that the contract he signed was a fixed term contract with an end date of the 30th of September 2024. That in itself implies very clearly that it does not create an expectation of permanency, nor was there any expectation created by either the SGB or the WCED that this contract would be renewed. The fact that the post remained vacant does not create an expectation of renewal. He confirmed that the post is still available and that the School can determine when they want to fill the position but, for the time being the position was not filled because a dispute was declared about the post. It is still on the establishment for the School.
In closing the respondent submitted when the applicant was appointed on a fixed term contract on 1 July 2024 until 30 September 2024, the terms of his employment were completely different from when he started working at the school in 2023. From July 2023 until 30 June 2024, he was in a substitute post. The post that he is currently disputing, which he occupied as of 1 July 2024, was a substantive vacant post. He cannot claim that he expected his contract be renewed as this post was never renewed before. Furthermore, he testified that he was made aware by means of meeting and contract that his contract was for a fixed term. Therefore, it is evident that the Applicant has failed to prove that his expectation was based on objective facts, as he has only presented baseless claims that have not been proven.
The applicant was not informed and or promised a post at the school after September 2024. The principal confirmed that the applicant was informed verbally and signed acknowledgement that his contract was fixed from 1 July 2024 until 30 September 2024. Proof was provided in that regard. The Applicant was in a fixed term contract, which by its very nature, has a start date and an end date. The circuit manager further explained that the automatic renewal was for all educators whose contract ended on 30 June 2024, not for any specific individual. Proof was also provided in that regard. Furthermore, the automatic extensions were intended for a particular period and no prospects to further extension. Therefore, there can be no reasonable expectation for a further extension for October 2024 until December 2024. The applicant created his own expectation, subjectively, and no objective reason and or evidence and or proof was adduced that could have created said reasonable expectation. The respondent therefore is of the view that the applicant failed to discharge the onus that an unfair dismissal occurred.

ANALYIS OF ARGUEMENT:

The respondent denied that any dismissal took place; the LRA indicates that before the fairness of a dismissal can be determined it must first be proven that there had been a dismissal. Sec 192 of the LRA states that in any dispute about a dismissal the employee must show that there had in fact been a dismissal as defined in sec 186 of the LRA.
The applicant referred a dismissal dispute related to Section 186 (1)(b) of the LRA, that an employee employed in terms of 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 as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.
Without repeating all the evidence, it clear that the applicant has failed to discharge the onus of proving that the employer had created an expectation of renewal or of permanency. There is no evidence that the respondent created an expectation of renewal or permanency by some overt act as is required according to the matter of Ouwerhoud v Hout Bay Fishing Industries (2004) 25 ILJ 731 LC, where the court held that in such circumstances where it is disputed that the employee had been dismissed, the employee is required to prove ‘some overt act by the employer that is the proximate cause of the termination of employment’. This is also confirmed in the matter of Marneweck v SEESA Ltd (2009) 30 ILJ 2745 (LC).
The Constitutional Court in Walele v City of Cape Town and Others 2008(6) SA 129 (CC) also held;
“The court 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 contract would be renewed on the same or similar terms.”
As noted by the respondent the applicant in his own version acknowledged that he was not promised that his contract would be renewed when he was offered and accepted a fixed term contract as from 1 July to 30 September 2024, a contract differing from the previous fixed term contracts when he was appointed as a substitute teacher, on a fixed term basis. The applicant acknowledged that the current post was vacant and he or anyone else was entitled to apply for the position, confirming that there thus could not have been an expectation to have this fixed term contract renewed.
It is also noted that the applicant argued that he should have been appointed in the vacant position permanently, although he did not present any specific evidence as such. It is trite that a person in a fixed term contract position cannot have an expectation of permanency as clearly stated in the case Rademeyer v Aveng Mining Ltd and others (JR 322/15)[2017] ZALCJHB 257 (handed down on 28 June 2017). The LC reaffirmed that fixed-term employment contracts and the automatic expiry thereof upon the expiry of a period or the occurrence of an event, is entirely legitimate, and in line with the LRA. Furthermore, a promise or offer does not change what is a fixed-term contract of employment into a permanent contract of employment. It also does not change the fact that the contract automatically terminates when the Employee’s work ends on the contract.

AWARD