In the matter between:

K F Mudau
(applicant)

and

Department of Education – Free State
(respondent)

Representative : Mr K Khang

c/o Mphafi Khang Inc
Union/representative’s address : 96 Iustitia Building
Cnr Aliwal & St Andrews
Bloemfontein
9300
Telephone : (051) 430 2987
Telefax: (051) 430 2929

Respondent’s representative: Mr K Tlale

Respondent’s address: Private Bag X20565
Bloemfontein
9300
Telephone: (051) 4044286
Telefax: (051) 404 4388
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DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing was held at Kroonstad on 31 March 2006. The parties filed the heads of argument on 7 April 2006.

Mr M Khang, an attorney, appeared for the applicant while the respondent was represented by the labour practitioner, Mr K Tlale.

ISSUE TO BE DECIDED

Whether the non-renewal of the fixed term contract constituted a dismissal. If so, whether the dismissal was substantively and procedurally fair.

BACKGROUND TO THE ISSUE

The background appear from evidence.

SURVEY OF EVIDENCE AND ARGUMENT

The following were handed in for evidentiary purposes:-

The respondent’s bundle “A”, and
The applicant’s bundle “B”.

Applicant’s evidence

Mr Khathutshelo Frank Mudau’s testimony was that:-

He has Secondary Teachers’ qualification to teach grades seven to twelve.

He was initially employed in terms of a three months contract at the Niekerksrus Agricultural school. The contract was subsequently extended for the periods ending on the following dates:-

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30 June 2004;
31 December 2004;
31 March 2005;
30 June 2005; and
31 December 2005.

He received the temporary letter of appointment (“B”-5) when he was already working. The said letter of appointment indicated inter alia, the salary rank, salary position and the period of appointment.

During 2004 he taught the following subjects:-

Farm Mechanics in grades eleven and twelve;
Agricultural Science in grades ten, eleven and twelve;
Technology in grades seven and eight; and
Natural Science in grades seven and eight.

According to the principal the statistics indicated that he performed well in the subjects he was teaching.

When he started working the teacher for the said subjects had resigned.

Upon his arrival at the school in 2004 there were seven teachers at the school. He became the eighth teacher. Among the seven teachers none taught the abovementioned subjects.

During May 2004 an additional teacher was employed. During August 2004 Mrs Ward resigned. A teacher was employed in the place of Mrs Ward during August 2004.

Another teacher resigned in December 2004. In January 2005 Mrs Lekhetho was employed in the place of the said teacher. The appointment of Mrs Lekhetho did not increase the number of teachers at the school.

He taught the following subjects in 2005:-

Applied Agrucultural Science in grades ten , eleven and twelve;
Farm Mechanics in grade twelve;
Technology in grades seven, eight and nine.

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Mr Letshela who joined the staff in May 2004 taught Mathematics in grades seven, eight and nine and Agriculture in grade ten. Mr Letshela also took over Natural Science in grades seven and eight.

Mr Letshela was permanently employed in a post which was not advertised and interviews were held.

The teacher who resigned in August 2004 taught Arts and Culture in grades seven, eight and nine. The replacement teacher taught the same subjects.

When his contract was terminated Mrs Lekhetho was teaching Arts and Culture. He could also teach the said subjects.

Page “B”-6 was an extract from the vacancy list 1 of 2005. Post number 822122/106 was advertised on 11 October 2004. He applied for the said post. The post was, however, not filled.

On 13 November 2005 the principal told him that his contract would not be renewed.

Page “B”-1 is a circular from the Superintendent General, Free State Department of Education. The circular addresses the position of temporary teachers. Page “B”-2 thereof the circular provides provision for extension of contracts of temporary teachers until March 2006.

Respondent’s evidence

Mr Nicolaas de Wet

He is the principal of the school.

The applicant was employed in a temporary capacity in 2004 while awaiting publication of a vacancy list. The applicant’s contract was not renewed as a result of non-publication of the vacancy list.

During the period the applicant was employed there were nine teachers at the school, that is, five permanent teachers, one teacher on a three year contract, two temporary teachers and one teacher who was loaned from other school.

The reasons for the changes in 2006 were, among others, that since 2002 they worked on the possibility of merging with another school because the number of learners was decreasing. During June 2005 they had a meeting at the district office where the
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decision was made that they could no longer have a grade ten class. A meeting was subsequently held with the parents about the phasing out of grade ten. Grade ten leaners were to be supplied with transport to a school at Ramulutsi, Viljoenskroon. Because of the impracticality of the arrangement they were forced to continue with the grade ten class.

They received the staff establisment during Novembers 2005. They then had a staff meeting where the issue was discussed.

On 28 November 2005 he submitted a list of the “needs” of the school to the district office. According to the “needs” they had to have five permanent employees.

After allocation of subjects to teachers they were left with Mrs Lekhetho and the applicant. Mrs Lekhetho has Senior Primary Diploma which entitled her to teach up to the senior phase cluster. She also attended in-service training in March 2005 and June 2005 to teach in the senior phase cluster.

The applicant and some teachers attended generic training to teach in the FET cluster. In November 2005 the applicant also attended training in new agriculture subejcts.

When chosing between the applicant and Mrs Lekhetho they had to consider the “needs” of the school in the languages and arts and culture. The only consideration was that Mrs Lekhetho had done in-service training

When they were informed the vacancy list would not be advertised they received permission to extend the contract of Mrs Lekhetho since she would best suit the “needs” of the school.

The applicant did good work at the school during the time he was employed. He tried to expose learners to various fields.

In cross-examination:-

The circular in terms of which the contracts of temporary posts were extended was signed on 4 December 2005. If he had the circular at the time the contract of the applicant expired he would extended the contracts of both Mrs Lekhetho and the applicant. Subseqent to the extension of Mrs Lekhetho’s contract they received a fascimile to extend Mrs Lekhetho’s contract for a further period of three months from April 2006. Mrs Lekhetho’s contract was consequently further extended as such.

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ARGUMENT

Mr Khang’s submissions:-

1. The Labour Relations Act entitles an employer to dismiss an employee on grounds of misconduct, incapacity and operational requirements. The employer must however, provide permissible reasons before dismissing the affected employee;

2. Permissible reasons means reasons which are fair and objective. Fairness refers to both the procedure and substance;

3. The onus is on the employer to prove both procedural and substantive fairness;

4. The respondent’s case was contradictory and absurd in the following respects:-

4.1 It was testified that the applicant’s contract was terminated because of structural changes but the respondent failed to follow the required procedure;

4.2 Further that the respondent considered the “needs” of the school when extending the contract of Mrs Lekhetho. In this regard the applicant is properly qualified and did not require special training. Training which Mrs Lekhetho attended was so basic that any teacher, including the applicant, could have done it;

4.3 The applicant’s contract was for a fixed term of three months and was repeatedly renewed for two years. The repeated renewals created legitimate expectation that the contract would be renewed on 31 December 2005;

Ferrant v Keydelta (1993) 4 ILJ 44

Zwane v Elegance Jerseys (1998) 19 ILJ 969 (CCMA)

Truter v Mechem (1997) ILJ 803 (CCMA)

Magubane & Others v Amalgamated Beverages (1997) 18 ILJ 1212 (CCMA)

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4.4 Failure to renew fixed term contract constitutes unfair labour practice and unfair dismissal in the present circumstances;

4.5 Renewal of fixed term contract is consistent with the intention of the parties to renew the contract for an indifinite term;

4.6 It is trite law that failure to renew a fixed term contract where reasonable expectation of renewal thereof was created constitutes unfair labour practice or unfair dismissal; and

4.7 The respondent bore the onus of proving that no such expectation was created;

5. In terms of human resources circular 69 of 2005 (pages “B”-1 and “B”-2), the applicant’s contract should not have been terminated. The respondent’s witness testified that if he had known of the said circular he would not have terminated the applicant’s contract.

6. It was the respondent’s case that the dismissal was for operational requirements. The applicant was therefore entitled to twenty four months remuneration. In the alternative, if successful, the applicant is entitled to outstanding salary from January 2006 to date of resumption of duty; and

7. The applicant’s dismissal was both procedurally and substantively unfair and he should be compensated and reinstated.

Mr Tlale’s submissions:-

1. The applicant’s contract was not renewed because of the curricular needs of the school;

2. Mr de Wet testified on behalf of the respondent that the school is in the process of phasing out the subject, farm mechanics, which was offered by the applicant;

3. The curricular needs of the school did not cater for the applicant’s background;

4. Page “B”-2 of the applicant’s bundle clearly stated that before the contract could be extended the school must firstly, consider the Educator Post Provision for 2006, which is the staff establishment and determine whether there is or are substantive vacant post provisioning from 1 January 2006;

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5. It is therefore, incorrect that Bundle “B”-2 provides for extension of contracts without considering the Educator Post Provisioning for 2006;

6. The only consideration for non-renewal of the contract of the applicant was the curricular needs of the school in conjuction with the specific training background of the educators;

7. It is submitted that the applicant’s case should be dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT

The applicant’s case concerned inter alia the following issues:-

1. The applicant’s qualifications;

2. The subjects he taught;

3. Legitimate expectation allegedly created; and

4. The apparent unfairness in preferring Mrs Lekhetho over the applicant.

The respondent’s case was largely based on the “needs” of the school as the criteria which led to preference being given to Mrs Lekhetho.

The above issues would normally merit consideration had it not been for the Human Resources Management Circular No. 69 of 2005 (“B”-1 and “B”-2) and the evidence around it. Consequently, it was my view that the said circular rendered it unnecessary for me to make a finding on the greater part of the evidence and argument of the parties.

Mr de Wet testified in cross-examination that if he had the circular in his possession when the applicant’s contract was terminated he would have extended the said contract like he did Mrs Lekhetho’s contract. He further received a fascimile to extend Mrs Lekhetho’s contract for a further of three months period from April 2006.

The circular in question reads as follows:-

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EXTENSION OF SERVICES OF TEMPORARY EDUCATORS FROM
1 JANUARY 2006

1. In order to have sound commencement of school activities
when schools re-open in January 2006, approval has been
granted for the appointment / extension of service of
temporary educators employed in substantive vacant posts
according to the Educator Post Provisioning for 2006, to be
extended until the end of March 2006 in the following
categories:-

• Substantive posts that have not been filled by
31 December 2005 through Vacancy List Nos. 1 and 2
of 2005;

• Substantive posts on the 2006 Educator Provisioning not
yet advertised;

• Substitutes and temporary educators appointed in the
place of educators acting in higher vacant posts; and

• Also the appointment of temporary educators in new
vacancies that occurred in the last quarter.

2. Please be informed that once information is received about
the adoption of the Education Laws Amendment Bill, 2005
further communication will be send out per circular as it
may impact the appointment processes and the position
of temporary educators.

It would appear that the circular does not mention the so-called “needs” of the school which were considered when the applicant’s contract was not renewed. The decision on the “needs” of the school appeared to have been superseded by the contents of the circular.

Mr de Wet has correctly conceded that if he had the circular he would have extended the applicant’s contract until March 2006. One could also infer that the contract would have been further extended until June 2006.

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Based on the aforegoing I concluded that the application was indeed unfairly dismissed within the meaning of section 186(1)(b) as a result of non-renewal of the fixed term contract of employment.

Remedy

The applicant would have remained in employment from 1 January 2006 until 31 March 2006. The contract would have further been extended until 30 June 2006. This is in accordance with Mr de Wet’s evidence.

The applicant requested compensation and reinstatement. There was no evidence on which I could infer that continued employment would be intolerable should the applicant be reinstated.

According to the letter of appointment (“B”-5) the applicant’s salary position is
R94 530,00 per annum.

In the premises I make the following award:-

AWARD

The applicant was unfairly dismissed on 31 December 2006;

The respondent should reinstate the applicant on the same terms and conditions of employment which applied to the applicant prior to the date of dismissal;

The respondent should pay the applicant R 31 510,00 being four months arrear salary which is calculated as follows:-

R94 530,00 per annum ÷ 12 = R7 877,50 per month;

R7 877,50 x 4 months = R31 510,00.

Reinstatement of the applicant and payment of the gross salary subject to statutory deductions should be effected on 15 May 2006; and

I make no order as to costs.

Arbitrator : Lesane Sesele