IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (VIRTUALLY)

In the matter between

MMAPASEKA JESICCA TSATSINYANE Applicant

and

DEPARTMENT OF EDUCATION: NORTHWEST Respondent

ARBITRATOR: Monde Boyce

HEARD: 25 January 2023

CLOSING ARGUMENTS: 03 February 2023

DATE OF AWARD: 14 February 2023

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This Council set the matter down for arbitration on 25 January 2023 and scheduled it to proceed virtually. Both parties made an appearance with the applicant representing herself while Mr Martin Keetile represented the respondent. Parties requested that dispute be decided on stated cases. This was largely because the versions of both parties are not diametrically opposed. Be that as the case was, I nonetheless called upon both parties to state out their case respectively, and it was once I established and had an appreciation of what the parties’ case was that I granted the request. It was then agreed that parties would file written heads of arguments by no later than 03 February 2023. Both parties duly filed the written heads of argument.

THE ISSUE TO BE DECIDED:

[2] I am required to decide whether the applicant was dismissed in terms of Section 186(1)(a) and (b) of the Labour Relations Act 66 of 1995 as amended (the LRA) and where I find that she was dismissed, decide whether her dismissal was fair and grant the appropriate relief should my decision favour the applicant.

THE BACKGROUND TO THE DISPUTE:

[3] The applicant was employed as a temporary educator and based at Methusele II Primary School at Disaneng and has been teaching at the above-mentioned school since 01 March 2015. She earned a salary of R18, 731.00 per month at the time of termination of her contract. She was allegedly dismissed on 28 January 2021. She referred a dispute to the Council alleging unfair dismissal after termination of her contract. The dispute could not be resolved at conciliation, and the applicant referred the dispute for arbitration. She seeks reinstatement as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s Submissions

[4] The applicant’s case is simply that she believed she was dismissed because she firstly was not given notice of her termination of her employment contract and, secondly, that she reasonably expected the contract to be renewed as the position she was filling was vacant because the incumbent had gone on retirement. The applicant’s version was further that there was a Circular 70 of 2020 that was issued by the then Administrator, Mr Mohlala on 10 December 2020, in which he instructed that termination letters, issued to temporary teachers, be withdrawn. She believed that the respondent should not have terminated her services until such time the process outlined in the above-mentioned Circular was followed and believed that she should have been considered for conversion to permanent appointment.

The Respondent’s Submissions

[5] Mr Martin Keetile, for the respondent, submitted that there is no dismissal and that the fixed term contract of the applicant came to an end and was not renewed. The applicant is well aware that she was appointed on a temporary basis by the respondent and that her contract expired on 31 December 2020. Any collective agreement signed between parties must be in line with the legislative provisions and should not contain provisions less favourable to the employees than the legislative provisions. For an educator to be converted from temporary to permanent status in terms of Collective Agreement 4 of 2018, that educator must meet professional requirements.

[6] The assertion by the applicant to the effect that her employment continued beyond 31 December 2020 and that she was dismissed on 28 January 2021 is rejected. The applicant is basing her claim on the fact that she was paid until February 2021. It is submitted that these payments were informed by the complex process that leads to final termination of the contracts where documents must move from one office to the other resulting in overpayment to educators whose contracts expired in December. Worst of all, in this regard, schools reopened towards the end of January 2021 thus exacerbating more delays of termination of contracts. The claim therefore by the applicant that her contract was extended and that payment of salary for January and February 2021 was an indication of extension should be rejected.

[7] The applicant stated that in terms of point 1, 2 and 3 of the Circular 70 of 2020, the respondent should halt termination of temporary educators subject to verification and completion of the process as stipulated. She however ignores Point 5 of the circular which states as follows: “This Departmental circular serves to withdraw termination letters issued to temporary teachers who qualify to be made permanent in terms of ELRC Collective Agreement No 4 of 2018 irrespective of the PPM 2021 availability of posts”. This means that termination letters were not to be issued only to those educators who were eligible for conversion. It had to be established whether the applicant was eligible and met all the requirements for conversion taking into consideration what the collective agreement, in its totality requires about the procedure to be followed. Circular 70 of 2020 did therefore not apply to the Applicant.

[8] It is therefore submitted that the applicant did not meet the requirements for conversion. The applicant was appointed in a normal teaching post from outside education, considering her qualifications. According to Personnel Administrative Measures (PAM) paragraph B3.2.1.1 and 3.2.1.6, a person who is not professionally qualified can only be appointed in an educator post, but that will only be in a temporary capacity. It should be noted that the applicant is in possession of a provisional South African Council of Educators (SACE) certificate which further advises her to complete her Post Graduate Certificate in Education (PGCE) and therefore cannot be appointed on permanent capacity but only a temporal one. SACE will only issue a certificate which is not provisional once she has completed her PGCE which is an educator professional qualification. It is at this point that the applicant will be eligible for conversion as per Annexure A, paragraph 4.4 of the collective agreement and meets the requirements for conversion as per paragraph 4.3 thereof.

[9] Paragraph 4.3 of the collective agreement provides that the requirement for conversion from temporary to permanent educator, the educator must be professionally qualified, there must be no permanently employed educators in addition to their post establishment, no departmental bursars and no first-time applicants. The applicant has failed to provide evidence that conclusively prove that she qualifies for conversion. It should be noted that paragraph 4.7 of the collective agreement states as follows: “Any person interpreting or applying this agreement must interpret its provisions to give effect to: 4.7.2 the objects and applicable provisions of the Employment of Educators Act and the PAM.” As already stated, according to PAM, a person can only be permanently appointed in an educator post provided s/he is professionally qualified. This clause is a clear indication that a professional qualification is a prerequisite in terms of PAM and cannot be ignored when dealing with the conversion of temporary to permanent educator position.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[10] In this case, it is the applicant who, having claimed unfair dismissal in terms of Section 186(1)(a)(b) and given that the respondent disputes having dismissed her, bore the onus to prove that she was dismissed. This is a peremptory requirement in terms of Section 192(1) of the LRA. It is only once the applicant succeeds in proving the existence of the dismissal that the onus would shift to the respondent to prove that it had fairly dismissed her. In asserting that she was dismissed, the applicant relied on the Circular 70 of 2020 instructing that schools withdraw termination of temporary teachers. I deem it necessary to mention at this early a stage the important principle that was set in South African Rugby Players Association v SA Rugby (Pty) Ltd where the Court held that a fixed term contract should also be capable of renewal.

[11] The Collective Agreement 4 of 2018 defines the “temporary educator” as meaning an educator who is appointed in terms of a contract of employment that terminates on the occurrence of a specific event, the completion of a specific task or a fixed date other than the employee’s normal or agreed retirement date. The applicant’s contract as the temporary educator has always been fixed and, on her own version, had been renewed every twelve months. It therefore becomes clear that the intention was not to employ her on a permanent basis and that where this was to be the case, a procedure needed to be followed in terms of the very Collective Agreement and the PAM.

[12] Key amongst these requirements was that the applicant should be qualified. The applicant would also have had to meet another crucial requirement, which is that she should be registered with SACE. The documents submitted as annexures including those submitted by the applicant herself do show that the applicant was not qualified and that the SACE registration she possessed was provisional subject to her completing a Post Graduate Certificate in Education. By the time of the termination of her contract the applicant had not completed this qualification and she had not provided any proof that she had a permanent SACE registration certificate at the time the Circular 70 of 2020 was issued. On this basis, the respondent’s conversion of the applicant’s contract in the absence of her meeting the set requirements would have amounted to an irregularity or illegality. In that regard, with the respondent’s intention being that of converting temporary educators to permanent, the conversion of the applicant’s contract to permanent would not have been possible even if the respondent withdrew termination of her employment.

[13] Circular 70 of 2020 was not issued in vacuo. The respondent had a clear purpose, which was that of converting temporary educators to permanent educators. At the time the conversion had to take place, the applicant would have fallen out for want of the Post Graduate Certificate in Education qualification and SACE registration. It would accordingly have served no purpose for the respondent to withdraw termination of the applicant’s contract. Also, subjecting her to the process that educators whose contracts were to be converted as per the Collective Agreement and PAM would not have applied to the applicant. For this reason, her claim that her expectation of renewal of her contract was reasonable falls to be dismissed.

AWARD

[14] The applicant, Mmapaseka Jesicca Tsatsinyane, was not dismissed by the respondent, the Department of Education, Northwest

[15] The application is accordingly dismissed, and the Council is directed to close the file.

Monde Boyce
Panelist: ELRC